Speaking of Virtue: A Republican Approach to University Regulation of Hate Speech

Abstract

There is a disturbing new trend among American universities. Many universities, both public and private, are adopting regulations that punish what is commonly called '"hate speech." Hate speech is expression that is viscerally offensive and degrading to particular segments of society, especially to women and minorities. Almost all of these recent regulations are extremely broad and obviously content-based, and thus a traditional rights-oriented approach to freedom of expression has no difficulty rejecting such regulations as facial violations of the First Amendment. It is a tortured argument indeed that would uphold the current type of regulations under the traditional analysis; concomitantly, demonstrating the patent unconstitutionality of such regulations is all too easy. It is, of course, possible to imagine regulations that might pass muster under traditional first amendment jurisprudence, but those regulations would have to be so narrow that they would rarely if ever apply to the types of incidents that have frequently sparked the rush toward hate speech regulations.