Legal Scholar Discusses Hate Speech Protections at Public Schools

U.S. law. The author noted that no single legal definition of hate speech exists and that attempts to craft campus codes have historically faced vagueness and overbreadth problems. V. v. City of St. Paul, in which Justice Antonin Scalia wrote that a Minneapolis anti-hate speech ordinance was underinclusive because it allowed prosecution for racist views but not for opposing viewpoints.

The author said government must remain neutral toward all viewpoints under the First Amendment.

Lower courts struck down various college speech codes in the late 1980s and 1990s. The post stated that any anti-hate speech code at a public school would likely ban or chill speech that should remain protected and would invite viewpoint discrimination.

The author cited an investigation at Georgetown Law Center involving Professor Ilya Shapiro, who was examined for months after posting a comment on social media about then-Supreme Court nominee Ketanji Brown Jackson before being cleared and later resigning.

The post said that even if certain words have limited free-speech value, allowing government to ban them grants authority to restrict other words regardless of context or speaker intent. It added that students will sometimes make offensive remarks and that punishment is not the appropriate response.

The author argued that non-censorious alternatives should be considered before schools adopt speech codes, noting that bans may reduce direct exposure but will not eliminate the underlying speech.