The First Amendment in its entirety states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” as documented in the Library of Congress.In American universities, the First Amendment is put to the test every time an incident of racial slur or assault is made, since, ideally, universities should provide an ideal educational climate devoid of discrimination. This safe educational climate cannot be created by wishful thinking and thus censorship against harmful, unregulated speech is necessary. Charles Lawrence’s essay “On Racist Speech” concisely captures this as he clearly illustrates why the “Supreme Court has held that words “which by their very utterance inflict injury or tend to incite the First Amendment does not protect an immediate breach of the peace”.” (Barnet and Sylvan, 68)

One of the most convincing arguments put forth by Lawrence is that in the event of hate speech based on one’s race, the utterance of an “assaultive racist speech functions as a preemptive strike.” (Barnet and Sylvan, 65). Thus when the victim hears those words, which could be in the form of intentional face to face insults, catcalls or other assaultive speech, they understand that the person making such utterances is not open to dialogue. It is evident thatassaultive racist speech is not a proffered idea but a blow to the victim’s identity. Since its motive is to injure the victim, and as such remarks are “particularly undeserving of First Amendment protection.”

Further, courts have permitted the regulation of such speech when it invades the privacy of the listener. In public forums such as streets, the listener can avoid such by moving on. However, when one is in their home, or school, the provisions of protected speech apply. This is because to avoid such speech, the listener’s right to movement, and freedom to speech will be violated and thus, consequently, their rights under the First Amendment. Lawrence asserts without a doubt that slurs such as racist posters, fliers and graffiti in school dormitories and bathrooms infringe on the rights of minority students as they “should not be required to remain in their rooms to avoid racial assault.” (Barnet and Sylvan, 66)

The ideal scenario is that the First Amendment should also protect and not censor those who are prone to making racist remarks, but Lawrence writes that the most realistic thing to do is to approach the matter while grounded in the reality of American history and contemporary experience. The idea is that “ideas that affirm equality and the worth of all individuals will ultimately prevail” (Barnet and Sylvan, 68). However, through experience, blacks and other peoples of color know that unregulated racist assault speech does not sink to the bottom, as their effects are injurious and they affect the victim’s life long after the event has passed. Thus, universities have a duty and responsibility to create a nondiscriminatory educational climatefor its students to ensure their right to an equal education even if that means the censorship of unregulated speech whichdisrupts peace and causes harm.

However, Derek Bok holds opposing views in his essay “Protecting Freedom of Expression on the Campus” whereby he gives an example of an incident that happened at Harvard University where two students hung Confederate flags in public view. He argues that maybe the motive for the display could have been for some satisfaction with identifying with the South, or a demonstration that hanging such a flag is inconsiderate and insensitive since it denotes support for slavery to many.  He states that the downside is that their satisfaction was by far outweighed by the massive discomfort it caused others and was therefore detrimental to the building and preserving of a strong and harmonious community.  Even though he understands the implications of the act, he writes that “if we begin to forbid flags, it is only a short step to prohibiting offensive speakers” and that “no community will become humane and caring by restricting what its members say.” (Barnet and Sylvan, 70)

To support his argument, Bok interprets the rulings of the Supreme Court as having racial slurs protected under the free speech clause of the First Amendment and cannot be prohibited for the particular reason that they offend many in a community. Since the rulings of the Supreme Court apply to all government agencies, including public universities, Harvard University should be no exception since there should be no spaces and areas where the First Amendment is more enforceable than others. Heargues that “the fact that the First Amendment protects speech does not necessarily mean that it is right, proper or civil” and that “to disapprove of a particular form of communication, however, is not enough to justify prohibiting it.”(Barnet and Sylvan, 70)

He suggests the idea that Lawrence disapproves; that the good will overcome the bad. In his view, instead of prohibiting racial assaults, it would be better to ignore them as the students will lack the motive to display such behaviors. The better long lastingalternative would be to educate students who are prone to such behavior of better ways of coexistence as that will ultimately further the cause of universities as educational institutions in creating understanding communities.

Thus, to conclude, it is prudent to state that since the First Amendment was put in place in 1791, the racial tensions such as the segregation of students in public schools based on race was regulated by the outcome of Brown vs. Board of Education(Barnet and Sylvan, 65). Therefore, while dialogue and the hope that good will reign over the bad could work in an ideal situation, the reality and experience of more than two centuries show that the legislature has to protect the minorities. According to Lukianoff should be done putting into consideration the reality and context of the communities in question, from the harmful misuse of the First Amendment and outcomes that are detrimental to the building of a harmonious progressive society (33).

Cited Works

Barnet, Sylvan, et al. Current Issues and Enduring Questions: a Guide to Critical Thinking and Argument, with Readings. Bedford/St. Martins, 2013.

Lukianoff, Greg. Unlearning Liberty Campus Censorship and the End of American Debate. Encounter Books, 2012.

“Research Guides: Constitution of the United States: Primary Documents in American History: Introduction.” Home – 13th Amendment to the U.S. Constitution – Research Guides at Library of Congress, guides.loc.gov/constitution.

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