Posted by Professor Melina Bell
I would like to make an observation, while recognizing that the First Amendment to the United States Constitution restrains government action, and for that reason does not apply to rules established by W&L, as a private actor. The purpose of the First Amendment, in my view, is to protect the speech of dissenting minorities from being silenced by a powerful government. That is, it is intended to protect the vulnerable from the powerful. However, its use to justify protection of harmful speech by more socially powerful groups on campus against regulation designed to protect vulnerable minorities inverts its purpose. In the absence of any regulation on speech, the speech of the more powerful can be freely used to silence the speech of the less powerful, who become unfairly regarded as less worthy of being heard and who become afraid to speak out. For this reason, some parties’ speech will be restrained regardless of university policies or community standards. It is up to us (as a community) to decide whose speech, and/or what speech, is more important to protect. “The best way to address hateful speech is with more speech” seems true because of the number of times it is repeated. It might be true in a world where the marketplace of ideas has no social capital requirement for entry. But in our world, we should ask what is more important: allowing some students to harm others with speech that has no communicative or legitimate purpose, or allowing all students to feel that they can express themselves freely and stand for what they believe in without fear of reprisal and/or social exclusion. There is a long tradition in the law of protecting merely offensive speech, while refusing to protect harmful speech (e.g., defamation, fraud, incitement to riot, causing a panic). Speech creating a hostile environment for people based on their membership in a socially subordinate group, such as women, members of the GLBT community, and racial, religious and ethnic minorities is not merely offensive. It causes tangible harm to individual people, and should be restrained for that reason.