Professional Documents
Culture Documents
Preston D. Mitchum*
I. INTRODUCTION
*BA, Kent State University, 2008; J.D. Candidate, North Carolina Central
University School of Law, 2011. First, I would like to thank God because without
him, nothing is possible. Second, I would like to thank my mother, Carla Owens,
and my grandmother, Lillie Jean Thompson. Words cannot express how
appreciative I am of their love and support. Third, I would like to thank my sisters –
LeShanua, Ebony, and Jahmeelah. I can only hope that I can be an inspiration to
them like they are to me. Lastly, I would like to thank my mentor, Professor Brenda
Reddix-Smalls, and my family and friends for their support throughout this law
school journey and my lifelong dream of becoming an attorney.
1
Ronald J. Rychlak, Compassion, Hatred, and Free Expression, 27 MISS. C. L. REV.
407, 408 (2008).
2
Id.
3
JOHN STUART MILL, ON LIBERTY 90-91 (Penguin Books Ltd. 1974) (1859).
52
4
Id.
5
Id. at 66.
6
Student Body Profile: Excellent in Action – By the Numbers,
http://www.kent.edu/about/facts/StudentBody.cfm (last visited Nov. 13, 2010).
53
9
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1205 (Aspen 3d ed. 2009).
10
Id. at 1206.
11
Id.
12
Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from Virginia
and Kentucky Resolutions, 11 CONST. COMMENT. 315, 317 (1994).
13
1 Stat. 596, Act of July 14, 1798 (“In 1798, the Federalist-controlled Congress
passed four acts to empower the president of the United States to expel dangerous
aliens from the country; to give the president authority to arrest, detain, and deport
resident aliens hailing from enemy countries during times of war; to lengthen the
period of naturalization for immigrants.”).
55
In other words, the Alien and Sedition Acts criminalized free speech.
The Alien and Sedition Acts of 1798 were repealed as a
violation of political speech, and the freedom to “speak freely about
whatever you want.” 15 This means that if individuals wanted to
exclaim “hateful” comments about the government or the President of
the United States, then he or she would be able to freely do so.
Therefore, the repeal of the Alien and Sedition Acts allowed for free
speech even when the comments were considered inappropriate,
distasteful, or offensive. The First Amendment was not enacted to
protect individuals from hearing these comments. On the contrary, a
person should be able to espouse a particular viewpoint, protected
under the First Amendment, without fear of retaliation. 16
14
Id.
15
CHEREMINSKY, supra note 8, at 1206.
16
See generally Bradshaw v. Twp. of Middleton, 296 F. Supp. 526, 542 (D.N.J.
2003).
17
Tom Donnelly, Article, A Popular Approach to Popular Constitutionalism: The
First Amendment, Civic Education, and Constitutional Change, 28 QUINNIPIAC
L. REV. 321, 327 (2010).
18
Police Dept. of Chicago v. Mosely, 408 U.S. 92, 95 (1972).
56
1. Self-Governance
2. Discovering Truth
26
CHEMERINSKY, supra note 9, at 1208-1212 (“All are important in understanding
why freedom of speech is protected, in considering what expression should be
safeguarded and what can be regulated”).
27
Id. at 1208.
28
Id.
29
Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B.
FOUND. RES. J. 523 (1977).
30
Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND.
L.J. 1, 28 (1971).
31
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (Five
Russians were convicted of “publishing language intended to incite, provoke, and
encourage resistance to the United States in the war with Germany, and that during
such war they incited and advocated curtailment of ordnance and munitions.”
Conviction affirmed).
58
3. Advancing Autonomy
4. Promoting Tolerance
50
See Richard Delgado, Words that Wound: A Tort Action for Racial Insults,
Epithets and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982) (arguing for
restriction of hate speech).
51
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
52
Snyder, 131 S.Ct. at 1215.
53
Id.
54
Id. at 1216 (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).
55
Id.
56
Josie Foehrenbach Brown, Article, Representative Tension Student Religious
Speech and the Public School’s Institutional Mission, 38 J.L. & EDUC. 1, 8 (2009).
61
57
David Strauss, Why Be Tolerant?, 53 U. CHI. L. REV. 1485, 1493 (1986)
(reviewing Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist
Speech in America (1986)).
58
Id.
59
Michael Kent, Curtis, Article, Be Careful What You Wish For: Gays, Dueling
High School T-Shirts, and the Perils of Suppression, 44 WAKE FOREST L. REV. 431,
434 (2009).
60
See id.
61
Strauss, supra note 57, at 1485.
62
Id. at 1486.
63
Id.
64
LEE BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST
SPEECH IN AMERICA 9-10 (Oxford University Press 1986).
62
65
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
66
Id.
67
Id. (quoting Simon & Schuster, Inc. v. State Crime Victims Bd., 502 U.S. 106,
116 (1991)).
68
See id.
69
See generally Varat, supra note 35, at 1111.
70
Turner Broad. Sys., supra note 72.
71
Id. at 642. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
72
Id. at 643.
63
73
Id.
74
See generally R.A.V., 505 U.S. at 377.
75
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 207 (3d Cir. 2001) (citing
R.A.V., 505 U.S. at 377)).
76
Id.
77
R.A.V., 505 U.S. at 377.
78
Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942).
79
See State v. Gaymon, 96 Conn.App. 244, 249, 899 A.2d 715, 720 (2006).
80
Id.
64
89
BLACK’S LAW DICTIONARY 1529 (9th ed. 2009).
90
R.A.V. v. City of St. Paul, 505 U.S. 377, 379 (1992).
91
Id.
92
MINN. LEGIS. CODE § 298.02 (1990).
93
R.A.V., 505 at 380.
66
The petitioner moved to dismiss this violation and contended that the
statute was overbroad, and therefore unconstitutional. 94 The trial
court agreed, but the Minnesota Supreme Court reversed. 95
The Government may not create regulations that effectively
drive their ideas or views in the marketplace. 96 In R.A.V., the
ordinance was unconstitutional because it attempted to regulate ideas
and viewpoints expressed by individuals. 97 The First Amendment
does not permit the City of St. Paul to create an ordinance that
imposes prohibitions on those speakers who express views on
disfavored subjects. 98
103
Id.
104
Mari Mastuda, Public Response to Racist Hate Speech: Considering the Victim’s
Story, 87 MICH L. REV. 2320, 2358 (1989).
105
Id.
106
See Cedric Merlin Powell, The Mythological Marketplace of Ideas, 12 HARV.
BLACKLETTER L.J. 1 (1995).
107
Id.
108
Id. at 48.
109
Rychlak, supra note 1, at 408.
68
A. Public Universities
While the Supreme Court has generally held that the First
Amendment extends to state university campuses, it also held that a
university’s mission is education and has never interpreted the First
Amendment to deny a university’s authority to impose reasonable
regulations compatible with that mission upon the use of its campus
and facilities.” 110 The university has generally created a forum that is
open to its student body. 111
Although individuals retain First Amendment protections, the
university is one of the few settings where hate speech should be
severely limited. The Court has held a “university’s right to exclude .
. . First Amendment activities that . . . substantially interfere with the
opportunity of other students to obtain an education.” 112
Furthermore, exposure to hate speech interferes with the enjoyment of
educational opportunities in the university context, which is important
to protect. 113 At many colleges and universities, university hate
speech policies serve the purpose of preventing interference with a
minority groups’ educational experience. 114
At Emory University, a Black freshman who went to class,
came back to her dormitory and noticed her teddy bear was slashed,
her clothes were soaked with bleach, and “Nigger hang” was written
in lipstick on her wall. 115 The student collapsed and was hospitalized
due to trauma. 116 Legal recourses must exist for students like this
college freshman; thus, a different analysis for hate speech is
necessary.
110
See Widmar v. Vincent, 454 U.S. 263, 268 (1981).
111
Id. at 267.
112
Healy v. James, 408 U.S. 169, 188-89 (1972).
113
Melissa Webermann, University Hate Speech Policies and the Captive Audience
Doctrine, 36 OHIO N.U. L. REV. 553, 559 (2010).
114
Id.
115
Id. at 553.
116
Id.
69
B. Private Universities
117
Id.
118
Id.
119
Id. at 554.
120
Weberman, supra note 113.
121
Kelly Sabaryn, Free Speech at Private Universities, 39 J.L. & EDUC. 145 (2010).
122
Id. at 180.
123
Id. at 145.
124
Id. at 155. See also Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000).
70
125
Id. (Corry v. Leland Stanford Jr. Univ., No. 740309, 1 (Cal. Sup. Ct., Feb. 27,
1995), available at http://
www.ithaca.edu/faculty/cduncan/265/corryvstanford.htm).
126
Id.
127
EDUCATION CODE § 94367(a) (“No private postsecondary educational
institution shall make or enforce a rule subjecting a student to disciplinary sanctions
solely on the basis of conduct that is speech or other communication that, when
engaged in outside the campus or facility of a private postsecondary institution, is
protected from governmental restriction by the First Amendment to the United
States Constitution or Section 2 of Article I of the California Constitution”).
128
Corry, No. 740309, at 35.
129
Sarabyn, supra note 121, at 159 (quoting Ross v. Creighton Univ., 957 F.2d 410,
416 (7th Cir. 1992)).
130
Id.
131
Restatement (Second) of Contracts § 206 (1981) (ambiguities in a standardized
agreement interpreted against the drafter).
71
faith.” 132 Students and faculty can expect the university to abide by
its promises as reasonably understood. 133 Abiding by the understood
promises helps to strike the proper balance between “[t]he university's
right to act without undue judicial interference and students' right to
receive their degree if they abide by the university's advertised
terms.” 134
Applying a contractual framework to written university
policies will respect the universities' right to First Amendment
protections as well as students, faculty, and donors' reasonable
expectations of what the university provides. 135 It is my suggestion
that courts hold private colleges and universities to their promises of
free speech because of the importance of First Amendment
protections in the university setting. 136
C. Best Solution: “Free Speech Zones” at Public and Private
Universities
132
Sarabyn, supra note 121, at 164.
133
Id.
134
Id.
135
Id. at 181.
136
See id.
137
Webermann, supra note 113, at 553.
138
Id.
139
See generally id. at 566.
72
X. CONCLUSION
144
Id. at 716.
74