Hate Speech, Viewpoint Discrimination, and A Crit Divided

From the 9th Circuit, an opinion by Judge Reinhardt in Harper v. Poway Unified School District. In response to a "day of silence" protest by the LGBT students at Poway High School, a student showed up with t-shirts emblazoned ""be ashamed, our school has embraced what God has condemned" on the front, and "homosexuality is shameful" on the back. The student wearing the shirt was reprimanded as a result, and now we have this case with a ruling that I, a Crit, in theory should love:

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.

Such disagreements may justify social or political debate, but they do not justify students in high schools or elementary schools assaulting their fellow students with demeaning statements: by calling gay students shameful, by labeling black students inferior or by wearing T-shirts saying that Jews are doomed to Hell. Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong.

The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. That is not so. Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The anti-war Tshirts posited by the dissent constitute neither an attack on the basis of a student's core identifying characteristic nor on the basis of his minority status.

Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the "substantial disruption" prong of Tinker or under the Fraser rule permitting schools to prohibit "plainly offensive" speech.

I'm a Crit. At least, officially. I graduated from law school with a concentration in Critical Race Studies, after all. But in the last year of law school, and in the year since I've graduated, I've been pulling away from some of the movement's central methodologies and obvious choices for political support. I've felt discomfort with the storytelling method (particularly as I move into different, less prone to narrativity areas such as federalism), and I've spoken out against separate minority student lounges. I don't know if this means that I'm becoming more nuanced, mature, and honest about my intellectual beliefs, or whether living in Orange County has really changed me back to the Ayn Randian libertarian I was when I was 15 years old. I don't think I'm becoming more conservative, per se--I'm still pretty lefty in my social policies and voting habits. But I am not as radical as I once thought I could be. The CRT movement is a big tent (I hope). While I support, unequivocally, most anti-discrimination laws, race-conscious remedies such as affirmative action, and strongly support the civil rights and voting rights acts, I wonder if this really makes me a Crit or just Crit-friendly. And I wonder if I am comfortable in my realization that I'm not much of a Crit.

I am very torn about this. I have written before how ambivalent I am about the three years I spent studying Critical Race Theory, and how I am slowly pulling myself away from the movement. Is it possible to believe in the theories of intersectionality, "covering," and argue for the reversal of the strict scrutiny standard for benign racial classifications meant to assist members of historically oppressed minorities--but reject storytelling and a tort theory for hate speech based on membership to a historically oppressed minority? In other words, am I just a conflicted person, hypocritically believing in the theory but not supporting the suggested practical legal remedy? Yes I believe that there are different categories of identity that intersect and flux. Yes I think people can be discriminated based on their intersectional identity. Yes, I believe that workplace grooming/presentation standards should be relaxed in recognition of how they they too, are a form of discrimination against minorities. Yes, I believe that membership in a historically oppressed minority group is key to determining whether a racial classification benefitting such members is benign or invidious. But no, I do not think that such membership should be key for determining whether speech against such a group may be infringed by the state. That would be viewpoint discrimination. My argument for changing the strict scrutiny standard would be consistent with the original and (before Adarand) legal interpretation of Sections 1 and 5 of the 14th Amendment. But an argument that offensive speech against a historically oppressed group is proscribable under Section 1 of the 14th contravenes the "viewpoint neutral" requirements of the 1st Amendment. I do not believe that Section 1 of the 14th permits such regulation of speech, and I don't believe that it operates to curtail the power of the 1st, particularly when it concerns symbolic speech not falling under any of the other 1st Amendment exceptions (fighting words, time/place/manner). This is viewpoint discrimination, pure and simple--and while I do not endorse the viewpoint of the those who say homesexuality is sin--I, cliche as it is, support their right to say it.

I've written previously about the possibility of regulating hate speech on a campus--but re-reading the post, I realize I wasn't very clear. When I was writing about the offensiveness of "Rape Is My Favorite Hobby" t-shirts and whether they could be regulated in certain settings (private universities yes, workplace environments very probably, public unversities maybe), I was thinking mainly of a hostile work/educational environment theory. If such shirts caused considerable upset and disruption to the education of young women and perhaps caused greater campus conflict, then the school has a Tinker v. Des Moines "substantial disruption" argument for disallowing such shirts. Plus, such shirts were clearly offensive, and had little First Amendment value. In the end, while I said that there may be a way for public universities (I didn't discuss high schools, figuring there are plenty of dress codes to prohibit offensive messages with little controversy) to regulate the wearing of such shirts, I didn't remark enough on how murky this issue is.

For a brief moment, like 3 months, I wavered in my First Amendment "absolutism" beliefs, thinking that maybe there should be civil tort remedies for "assaultive speech," or racist speech that inflicts psychological harm (see Words that Wound). Before that I thought everything should have it out in the "marketplace of ideas" and nothing should be regulated. After I read Words That Wound, I began doubting those beliefs. I started thinking that maybe there should be tort remedies for "assaultive speech." I even wrote a "brief" for a mock trial my senior year. I re-read it. It was actually pretty good for a senior in college. Hey, I was taught by the best, a political scientiest who later became a professor of law at Yale. I argued that a school had a right, under the substantial disruption prong of Tinker v. Des Moines and the administrative authority argument under Hazelwood School District v. Kuhlmeier, to regulate the racially offensive speech of one of its professors. There was also some discussion of "captive audience," unequal speech power between student and professor, and in imbalanced "marketplace"--lots of senior year flowery prose. And I have to say--I don't believe in any of it anymore. Maybe because I hope to be a professor with academic freedom. Maybe because I've grown beyond that moment of political consciousness awakening that came with reading "Words that Wound.' Maybe because I've actually learned more about this complicated issue and decided on my own that abriding speech on such theories against a particular viewpoint is not something I can support legally, intellectually, and personally.

After law school, (particularly after taking First Amendment Law) I've found that the center holds. I am supportive of hostile work environment laws, but I am no fan of viewpoint discrimination that bases its protections on membership to a minority group. Despite being a Crit who believes in a lot of anti-subordination law, I am just not persuaded that in the area of speech (particularly if it's symbolic), such protectionist measures outweigh the compelling interest of free speech. And if it is dependent upon the victim's membership to a minority group, is it also dependent upon the attacker's membership to a majority group? What about minority-on-minority bashing? I can't support the policy rationale for this outcome, and I can't support the legal reasoning behind it either. Section 1 of the 14th is meant to protect minorities, yes--but from due process violations inflicted by the state, not by other private actors. This private/public distinction, long-criticized by Crits like myself, still holds. Moreover, while I don't argue that an educational environment hostile to your very presence is extremely problematic, and don't diminish the suffering of the students, where is the deprivation? In silent protest (the school is not sanctioning violence, hate crimes, or exclusion from public areas and membership to school-sponsored organizations/activities), where is the deprivation of any fundamental right? (keep in mind there is no constitutional right to an education, although each state has made it a right and obligation) And since when does Brown authorize anything more than desegregation? Citing to Brown's sociological studies, long-since dismissed, doesn't do much for the majority. There is no constitutional right to have one's dignity affirmed or kept from injury caused by the exercise of free speech of others. The best argument to support the decision is that the school had experienced tensions resulting in physical violence in the past, and that is an argument under Tinker's substantial disruption prong--although this alone may not vitiate the free-speech concerns. How much is too much disruption? And how is that the majority appears to throw in Tinker and Fraser as a fall-back theory?

I'm more in agreement with Dale Carpenter on this, and his analysis is interesting and insightful, particularly his reading of why relying on Tinker isn't the strongest basis for the majority opinion :

On the first prong of Tinker, I don’t know what the Supreme Court meant by saying that a school could suppress speech to protect the “rights of others.” It probably meant that schools could prohibit things like face-to-face verbal harassment, libel, and threats, which are already examples of largely unprotected speech. If so, I have no quarrel with it. I’m pretty sure, however, Tinker should not be read to allow schools to banish all methods of expressing a whole viewpoint (e.g., against homosexuality). Eugene is right to take the majority to task for this. In what may be a first, the court’s justification for a speech regulation appears to be more troubling than the government’s own justification for it. There’s actually more evidence of viewpoint discrimination in the majority opinion than there is in the actions of school officials.

On the second prong of Tinker, related to “substantial disruption,” if a school can’t bar a student from wearing an anti-war black armband in the midst of a heated national controversy over the Vietnam War, it’s hard to see how a school could bar a student from wearing an anti-gay T-shirt in the midst of a heated national culture war over homosexuality. While the school had some vague evidence that there had been past “altercations” over such messages, and that some students in one class started talking about the T-shirt instead of doing their class work, it’s hard to see how any of this rises to the level of reasonably threatening “substantial disruption of or material interference with school activities” required before such messages can be banned.

I'm also surprisingly in agreement with Eugene Volokh, with whom I disagree about the constitutionality of sexual harassment laws. But his comments on viewpoint neutrality are dead on:

Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas."

Yet the majority specifically refrains from relying on this principle (and Judge Kozinski's dissent points out that on the facts of this case, there wasn't enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).

This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.

Keep in mind, I'm not excluding the possibility of regulating "Go back to China, you chink" said in my face, accompanied with a shove. That's technically fighting words plus assault and battery. But do I really have an argument against the Abercrombie "Two Wongs Make a White" shirt? How about "Secure America's Jobs and Borders: Send Mexicans Home"? What is political speech and what is "merely offensive"? What counts as sufficiently pervasive and offensive so as to create a hostile educational environment? And what would be considered offensive enough to disrupt the educational environment so as to invoke the school's interest in maintaining a safe educational environment? First Amendment law is tricky--that's why the people with the most vehement (and often cogent) arguments are the absolutists, not the Crits who tend to build arguments with slippery slopes and shifting categories of offensiveness, minority membership, and protection. I'm not saying be one or the other--but it's difficult, highly case-sensitive, nuanced stuff. Tread lightly, and be aware that the groups most in danger of censorship and sedition aren't the majority--but rather the minority, whether political or racial.

For a contrasting viewpoint, and a really excellent post by the most ambitious and crazily well-read pre-law sophomore in the blogosophere, read David Schraub's post over at The Debate Link.