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Understanding hate speech as a communication phenomenon

by Jae-Jin Lee

Of the complex issues that American society faces, hate speech, entangled with multiculturalism and equality problems, has been the "hardest free speech question."(1) Hate speech is defined as an expression that is abusive, insulting, intimidating, harassing, or which may incite to violence, hatred, or discrimination based on race, ethnicity, religion, or sexual orientation.(2) While widespread hate speech largely reflects conditions of American society, it has special meanings for the academy where respect for others and a tolerant atmosphere are of great value.

Colleges and universities remain a special area of protection where First Amendment rights of expression are concerned.(3) As the tension among students, faculty, and administrators over racial, religious, and sexual orientation increased,(4) however, more and more schools adopted campus speech codes during the 1980s,(5) which have resulted in a huge range of complicated debates.(6) In the same context, some great efforts to resolve the constitutional issues have been made on the basis of various "First Amendment tests and exceptions, including fighting words, captive audience, public forum, harassment, and time, place and manner restrictions."(7)

The U.S. Supreme Court has not yet specifically adjudicated the constitutionality of a campus hate speech code. In the wake of R.A.V. v. City of St. Paul,(8) however, the permissible scope of any hate speech code adopted by a public institution has been restricted sharply. This case has accelerated the debates regarding campus speech codes.

Debates about campus codes have generated a great body of work, most of which employs social and cultural perspectives analyzing the effects of hate speech on minority groups. There has been little consideration of hate speech as a communication phenomenon, however, although this approach can provide a framework to fully understand the nature of hate speech.

The main purpose of this article is to shed light from a communication perspective on the rationales of the courts and the debates of the academy on hate speech code issues. This article first examines the jurisprudence of the speech code cases. Second, it briefly reviews contemporary legal and academic debates on hate speech issues. Finally, it analyzes the nature of hate speech from a communication perspective. In conclusion, this article argues that the First Amendment issues about hate speech on campus should be reconsidered from the direction of speech as well as content and effects.

I. RATIONALES IN RECENT HATE SPEECH CODE CASES

In Doe v. University of Michigan,(9) the first federal court case, the court found that the university's hate speech code violated the First Amendment because it was "overbroad and excessively vague."

The policy of University of Michigan had been adopted by its regents in an attempt to curb an alleged rising tide of racial intolerance and harassment on campus. The court first acknowledged the fundamental value of conflict and said, "It is an unfortunate fact of our constitutional system that the ideas of freedom and equality are often in conflict."(10)

The court held, however, that the policy swept within its scope a significant amount of "verbal conduct" or "verbal behavior" that was unquestionably protected speech under the First Amendment. Despite the best of intentions, said the court, the university could not establish an antidiscrimination policy that had the effect of prohibiting speech because it disagreed with ideas or messages being conveyed.

The court added that even though in certain circumstances racial and ethnic epithets, slurs, and insults might constitutionally be prohibited by the university,(11) the university policy did not make clear exactly what type of speech was to be prohibited, making students conjecture at its meaning, and did not provide adequate warning about precisely what speech might constitute a violation. "Looking at the plain language of the Policy," said the court, "it was simply impossible to discern any limitation on its scope or any conceptual distinction between protected and unprotected conduct"(12) and that the questions during oral argument "illustrated the plain fact that the University never articulated any principled way to distinguish sanctionable from protected speech."(13) As a result of this vagueness, "[s]tudents of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy."(14)

Even though the court agreed that the university was only trying to meet its "obligation to ensure equal educational opportunities for all of its students," the court said that "such efforts must not be at the expense of free speech."(15) The court then permanently enjoined the university from enforcing its 1988 policy on verbal behavior or verbal conduct, but allowed it to continue to enforce the policy regarding physical behavior or conduct.

In UWM Post v. Board of Regents,(16) two years after the Michigan decision, a federal court in Wisconsin found another code overbroad because it was a "content based regulation" of a substantial amount of protected speech. While the University of Michigan case dealt with certain applications of the hate speech code to classroom situations, the University of Wisconsin opinion addressed instances involving individual students that arise on campus but outside of sanctioned university activities.

In this case, at the start the court framed overbreadth of the code in the context of speech which falls into an unprotected category.(17) The court then developed a standard to distinguish protected speech from unprotected speech. The court reasoned that to be a violation under any policy adopted by a university, a comment, epithet, or other expressive behavior must: (a) be racist or discriminatory; (b) be directed at an individual; (c) demean national origin, ancestry, or age of the individual; and (d) create an intimidating and hostile activity.(18)

What is noticeable is that the court approached the case with both the First Amendment and the intent of the regulation in mind. The court stated,

Above all, the First Amendment implicates that government has no

power to restrict expression because of its message, its ideas, its

subject matter, or its content. To permit the continued building of our

politics and culture, and to assure self-fulfillment for each individual,

our people are guaranteed the right to express any thought, free from

government censorship. The essence of this forbidden censorship is

content control.(19)

The analysis dealt more specifically with the "fighting words" doctrine as articulated in Chaplinsky,(20) wherein the U.S. Supreme Court said that such words included the "lewd and obscene, the profane, the libelous, and the insulting or fighting words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."(21)

Also based on the decisions of Cohen v. California,(22) the UWM Post court used the fighting words doctrine to note that the rule today only applies to words which by their very utterance incite an immediate breach of the peace, and that fighting words cannot be formulated in abstractly uttered or generally interpreted terms; rather, they must be directed at the addressee.(23) The court commented that the university rule failed to meet these requirements of the fighting words doctrine.(24)

The regents argued that the court should strike a balance between an absolutist free speech position and the need for an appropriate learning environment and uphold the policy "because it only regulates speech with minimum social value and which has harmful effects."(25) On the contrary, the court asserted that uncensored speech itself was a considerable social value to both the individual and the community, and that any balancing would have a negative impact.(26)

The court was advancing the ultimate rights of the speaker per se, not placing the First Amendment on the usual ground of the benefits to the audience of citizens at large. Hence, in response to the contention of the regents that hate speech lacked First Amendment value because it is unlikely to form any part of a dialogue or exchange of views and because it does not provide an opportunity for a reply, the court, citing Chaplinsky, stated that "when speech is `unanswerable,' and the metaphor that there is a `marketplace of ideas' does not apply, the First Amendment does not apply either."(27)

Realizing the value of the university's desire to promote diversity, the court agreed, based on University of California Regents v. Bakke,(28) that increasing diversity is "clearly a constitutionally permissible goal for an institution of higher education."(29) The court reasoned, however, that "the UW rule does as much to hurt diversity on Wisconsin campuses as it does to help it. By establishing content-based restrictions on speech, the rule limits the diversity of ideas among students and thereby prevents the `robust exchange of ideas' which intellectually diverse campuses provide."(30)

Iota Xi Chapter v. George Mason University,(31) a case that resulted from a fraternity skit ("ugly women contest"), which degraded women and blacks, is worth attention for two reasons. First, it is the only federal appeals court decision on a campus speech code. Second, it provides further illumination of the tension between the exercise of First Amendment and other legitimate goals of educational institutions.

Here, the university argued that the skit was conduct and not speech and was, therefore, not protected by the First Amendment. This is a frequent argument from those wanting to proscribe hateful ideas, even when expressed in "pure speech." The court, however, had a better understanding of communication theory and a different understanding of the scope of the First Amendment. Based on Texas v. Johnson,(32) the court stated that the skit was protected. The court found that the Johnson test for determining the expressiveness of conduct required an

"intent to convey a particularized message" and a great "likelihood" that the message would be understood by those who viewed it.(33) The court rejected the university's argument, saying that it was self-defeating.

The university's position was that "the message conveyed by the Fraternity's conduct was completely antithetical to the university's mission of promoting diversity and providing an educational environment free from racism and sexism."(34) Further, the university contended that the skit sent a seriously wrong message and at the same time was not a serious message itself. The university also urged the court to balance the fraternity's offensive conduct against the other substantial interests inherent in educational endeavors. The court agreed with the university's goals but found the means to be unconstitutional.

The University certainly has a substantial interest in maintaining an

educational environment free of discrimination and racism, and in

providing gender-neutral education. Yet it seems equally apparent that

it has available numerous alternatives to imposing punishment on

students based on the viewpoints they express. We agree whole-heartedly

that it is the University officials' responsibility, even their

obligation, to achieve the goals they have set. On the other hand, a

public university has many constitutionally permissible means to

protect female and minority students.(35)

Following the rationale of R.A.V., the court affirmed that selective punishment based upon message content was unconstitutional under the First Amendment. The court concluded that the university should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

Dambrot v. Central Michigan University(36) is distinctive from previous cases in that it focused on remarks made by a staff member and resulted in the court's declaring the university's policy unconstitutional even though the speech in question did not merit First Amendment protection.

Dambrot, coach of the men's basketball team, was fired for using the word "rigger" "in a positive manner" in a locker room talk he gave to the players and coaching staff. The university's affirmative action officer told Dambrot that the term was incapable of being used positively and its use was a violation of the university's anti-discrimination policy. Dambrot brought the suit alleging that his firing violated the First Amendment rights to free speech and academic freedom. The court agreed, concluding that "his attendant use of assertedly motivating language, was of private concern only to him and perhaps to his players. It was not speech on a matter of public concern."(37)

The university argued that the policy was not a "speech code" and was not equivalent to an ordinance or statute because it contains no real penalty mechanism. The court found the policy unconstitutionally overbroad and vague, however, stating "negative racial connotations are prohibited, but positive (or at least non-negative) connotations, based on those same racial or ethnic affiliations, are allowed."(38) Later the decision was upheld by federal appellate court, which said, "the overbreadth doctrine provides an exception to the traditional rules of standing . . . under the First Amendment based on a belief that a certain statute is so broad as to `chill' the exercise of free speech and expression."(39)

In Silva v. University of New Hampshire,(40) a federal court held that administrators and student judiciary board members might be held liable for violation of a faculty member's First Amendment rights. In this case, Donald Silva, an instructor of communications at the Thompson School of Applied Science at the University of New Hampshire and a tenured member of its faculty, was fired as a result of a "sex focused" writing class under the school's sexual harassment code.(41) Silva alleged that enjoining his teaching under a sexual harassment code is a clear violation of his right to freedom of speech under the First Amendment.(42)

Stating that all faculty, staff, and students have a right to work in an environment free from sexual harassment, the court admitted that the intent of the university policy is to foster responsible behavior in a working environment free of discrimination.(43) The court said, however, that there should be more considerations.

First of all, the court said that Silva's classroom statements were on matters of public concern and some speech that is offensive to a particular class of individuals should be tolerated.(44) The court held that the university breached its duty of good faith and fair dealing owed to Silva by acting without legitimate justification.(45)

The court also determined that the communication in question was not "of a sexual nature" under the university sexual harassment policy; rather, the complainants, mistakenly understood the message as sexual. In other words, it was the complainants' misunderstanding of the message which created an offensive academic environment, and for this reason, the university's discipline of Professor Silva violated the notice requirement of Keyishian.(46) The defendant university was ordered to reinstate Silva to his position as a tenured professor.

Following Silva, the U.S. Court of Appeals for the Ninth Circuit reversed the decision of a lower court and ruled that college administrators violated the First Amendment rights of a professor charged with creating a sexually hostile learning environment.(47) In the lower court case, an English professor used an unconventional teaching style that involved discussions and assignments on topics of obscenity and pornography, among others.(48) The court, applying similar tests as did the court in Silva, held that the restrictions were permissible because they were narrowly tailored and reasonable.(49) The court reasoned that since case law established that a professor could be regulated on the use obscenity or profanity in the classroom, then a discussion of subjects themselves was also a proper place for regulation.(50) The Ninth Circuit, however, held that the college's sexual harassment policy was simply too vague as applied to Cohen. The court stated,

The college applied the policy's nebulous outer reaches to punish

teaching methods that Cohen had used for many years. Regardless of

what the intentions of the officials of the College may have been, the

consequences of their actions can best be described as a legalistic

ambush. Cohen was simply without any notice that the Policy would

be applied in such a way as to punish his longstanding teaching

style--a style which, until the College imposed punishment upon

Cohen under the Policy, had apparently been considered pedagogically

sound and within the bounds of teaching methodology permitted

at the college.(51)

II. POLITICAL CORRECTNESS DEBATES AND THE IMPACT OF R.A.V.

In an effort to further discussions on hate speech, it is paramount to consider circumstances that had great influence on the hate speech issues: political correctness debates and the U.S. Supreme Court's decision in R.A.V.

From the mid- to late-1980s to the early 1990s, political correctness debates about affirmative action, multicultural curriculum, and campus speech codes were widespread.(52) Political correctness was a relatively new term in the hate speech arena. As far as speech code advocates were concerned, political correctness was an attempt to promote sexual and racial equality by means of speech and behavior codes on campus.(53)

The embryonic stages of "political correctness" occurred during the early civil rights movement and gained momentum with both homosexuals and feminists as a consciousness-raising mechanism.(54) Since that time, the term has been widely used, and eventually it became a national policy. In academia, most universities got involved in political correctness debates on campus speech codes, which were fueled by the press.(55)

"Political correctness" regarding speech codes emerged in place of the idea of "hate." As a matter of fact, the concept of hate was mainly used to characterize racist expressions emerging in direct response to the recognition in the 1980s of racism in the public sphere.(56) The expression of hate had much to do with the way in which the public entered this debate.

Political correctness is a general limitation on any kind of speech that excludes a class or individual based on particular characteristics. In fact, there is no definable line to distinguish between politically correct speech and politically incorrect speech. One commentator said, based on the degree of political correctness, that politically incorrect speech involves any speech that "implies that those who are not heterosexual, Caucasian, and male with Eurocentric thought patterns are somehow less than those who possess these attributes."(57)

The degree to which political correctness has come to be a subject of widespread arguments on campus seems to be driven by the contention that racist and other "incorrect" speech keeps members of social minorities from participating in robust debate and political self-determination.(58) A legal scholar surmised that "in common parlance politically correct is a term of negative valuation signifying a praxis of righteous bullying combined with superficial and faddish political thought or programs, a term generally employed as a deliberate insult."(59) From this point of view, offensive, scatological, racist, or sexist statements, even if accompanied by a call to fight, are politically incorrect.

In the atmosphere of American academia, it is generally perceivable that "political correctness" engenders either derisive laughter, angry response, or a vigorous nodding of heads. Liberal scholars claim that "politically correct" is, strictly speaking, a totalitarian philosophy.(60)

Liberal scholars emphasize that if the classroom is restricted to politically correct speech, then no one benefits. Even though they acknowledge that political correctness touches some of America's deepest concerns, they maintain that teachers and students wishing to express ideas are stifled by the threat of sanctions and therefore sacrifice educational goals, while students who might be offended are never given an opportunity to develop reasoning skills because there is no idea or speech to counter.(61)

As a result, liberals view hate speech codes on campus as restrictive, not protective, criticizing enforcement of speech codes as a form of censorship.(62) They accuse the political correctness of campus speech codes of turning the schools into multicultural watchdogs.(63) Some of them derisively find that the real marginalized people will turn out to be white males if politically correct rules are being kept to censor erroneous speech.(64)

R.A.V. v. City of St. Paul(65) came at a time of national debate regarding hate-speech laws and campus speech codes that many conservatives and some liberals saw as imposing a regime of "political correctness."(66) In R.A.V., the U.S. Supreme Court held that a city ordinance prohibiting bias-motivated disorderly conduct violated the First Amendment because it restricted only communications concerning certain disfavored topics, thus constituting content-based discrimination.(67)

The Court applied the "content-neutral regulation" doctrine to hate speech in its reasoning. Prior to R.A.V., the Court had never applied a rule of content neutrality to invalidate a regulation aimed at criminalizing constitutionally unprotected speech. The Court found the ordinance unconstitutional on its face because it prohibited otherwise permitted speech solely on the basis of its content.(68) Further, the Court held that a content-based regulation is presumptively invalid because of the dangers of censorship; as such regulations must be necessary to serve a compelling interest.(69) The Court added that the only interest served in the ordinance was the city's hostility to the particular biases proscribed by the ordinance, and that this special prohibition on disfavored speech was precisely what the First Amendment forbids.(70)

In the court opinion, Justice Antonin Scalia stated, "In our view, the First Amendment imposes not an underinclusiveness limitation but a content discrimination limitation upon a State prohibition of proscribable speech."(71) As a result of this reasoning, however, Justice Byron White pointed out that the Court did not consider whether First Amendment values actually would be compromised by prohibiting intimidation in the form of cross burning.(72) He claimed that the Court obscured the line between speech that could be regulated freely on the basis of content and that which could be regulated on the basis of content only upon a showing of a compelling interest.(73)

Justice Scalia indicated that the ordinance would allow a wide range of "fighting words" by advocates of political correctness, but would make criminal those used by the opposition speakers. Under the First Amendment, he said, "St. Paul has no such authority to license one side of a debate to fight freestyle...."(74)

Many viewed Scalia's opinion as an extended constitutional criticism not only against the excesses of the "politically correct" censors but also against the legitimate concerns and competing interests of hate speech opponents. Justice Harry Blackmun observed that the Court's motivation was not the preservation of values underlying the First Amendment, but rather a fear of progressive notions of political correctness and cultural diversity.(75) Blackmun also charged Scalia with using the case to attack politically correct speech. Scalia's opinion, no doubt, has chilled the ardor on campus for politically correct speech codes.

On the other hand, Scalia's opinion tells university administrators that regulation can be constitutional so long as it is not politically selective.(76) That is, the R.A.V. decision forced colleges and universities to transform their speech codes to regulate racist and sexist acts rather than emotive expressions, which would pass the Scalian First Amendment test.(77) The University of Michigan, for example, which had an absurdly detailed speech code, is now considering a sensible one that simply would ban hate speech containing violence and intimidation that is directed toward anyone.

R.A.V. teaches that the government may not regulate hate speech based on hostility toward the underlying message expressed.(68) Thus, any type of speech can be protected. The Court decision implies that campus codes are unconstitutional in that they are not narrowly tailored and that they are not content neutral.(69)

III. CONTEMPORARY ACADEMIC PERSPECTIVES ON CAMPUS SPEECH CODES

The U.S. Supreme Court once stated that "there is no constitutional value in false statement of fact."(80) This, however, does not justify suppression of speech.(81) A fundamental doctrine of the First Amendment law has been that speech normally cannot be regulated or restricted based on its content.(82) There have been, however, exceptions to this rule. Most campus hate-speech debates have evolved around these exceptions. The rhetorical and logical structure of hate-speech debates has been undergoing a slow but inexorable shift.(83) At the same time, it has become hard to distinguish right from left and liberals from conservatives based on their rationales in the discussions of hate speech on campus.(84)

Nevertheless, generally what is accepted by those on both sides of the campus speech code issues is that hate speech is harmful. The main question is whether, despite its harmfulness, hate speech should be considered constitutionally protected free speech.(85)

A. Opponent Position

Opposition to the hate speech codes is inherited from liberal First Amendment doctrines and the marketplace of ideas metaphor. This position generally argues that campus bans on racist speech will inhibit the exchange of controversial ideas and undermine the university's commitment to unfettered inquiry. Opposition scholars believe that speech codes will not remedy the underlying causes of racial problems but actually may exacerbate tensions between students. This position also finds speech codes outrageous, deeming them violations of the right of free speech, and considers them further evidence that campuses were falling under the spell of radical muticulturalists and politically correct thought police.(86)

Others who have more conservative positions assert that (1) pressing for hate-speech regulation is a waste of time and resources(87); (2) white society will never tolerate speech codes, so that the effort to have them enacted is quixotic, symbolic, or disingenuous(88); (3) racist expression is useful bellwether that should not be driven underground(89); (4) encouraging minorities to focus on slights and insults is harmful because it causes them to see themselves as victims; (5) the campaign is classist, since it singles out the transgressions of the blue-collar racist while leaving more genteel versions of the upper classes untouched; and (6) the cure is worse than the disease, because it institutionalizes censorship, and "two wrongs don't make a right."(90)

A common assumption on which the opponent position is based is that suppression of speech often intensifies the sentiments of those silenced by law, while denying to everyone the opportunity to seek and discover wisdom through debate and the clash of ideas.(91)

Further, opponents point out that hate speech can serve an important social and political function. Irrational expressions of hate speech on the status of the targets can alert people to the fact that something is wrong in the body politic, in people, or in the speakers. Prohibition on hate speech might have other negative effects as well: It might actually inhibit, rather than enhance, the education of students and the development of responsible citizens.(92)

B. Proponent Position

Proponents of speech codes generally argue that racist speech or sexist speech by its nature causes discrete and serious harm to minorities. They maintain that such speech inevitably creates an intimidating, hostile, or demeaning environment for education and university-related work.

1. Fighting Words Approach

Taken in context for minority cases dealing with hate speech, this approach refers to hate speech as fighting words. This approach is fundamentally based on a view that factually false statements are not entitled to First Amendment protection. Charles Lawrence argues that because minority students are far more likely to feel overwhelmed by the numerical superiority of white students and realize that a violent response to fighting words will result in a risk to their own life and limb, they are forced to remain silent and submit.(93) Richard Delgado, who argues that hate speech is really a form of assault constituting the tort of intentional infliction of emotional distress, provided early inspiration for the hate speech code movement.(94)

2. Critical Marketplace-of-ideas Approach

This approach is skeptical of "free marketplace of ideas" assumptions. It denies that the contest truly is fair, given the power disparities that separate whites from non-whites in American society. It contends that those disparities tend to intimidate the disempowered targets of hate speech into silence. This approach regards the response to hate speech as futile because statements of hatred against racial and ethnic minorities and homosexuals are linked to deep-seated emotional attitudes.

Gale, criticizing libertarian approaches to First Amendment jurisprudence that favor the speakers' freedom, autonomy, and contributions to educational discourse to those of the victims, suggests a "timid and limited" proposal to prohibit any message on campus "targeting specific individuals for harassment that threatens to destroy the Fourteenth Amendment right to educational equality and the First Amendment right to equal liberty and equal voice."(95)

According to Greenwalt, racial and ethnic epithets and slurs are of slight expressive value.(96) He adds that endurance of epithets is much easier when one is a member of a privileged majority than when one belongs to a reviled minority. Finding fault with the "illusory nature" of the First Amendment's absolutism, Kretzmer argues that racist speech is unique because of its catastrophic history and the universal condemnation of racism. Contending that it inflicts real harm, including the spread of prejudice and its assault on individual dignity, he maintains that the emphasis should be shifted from freedom to the ideal of equality.(97)

3. Outsider Jurisprudence Approach

This approach goes a step further than any other approach in that it endorses formal criminal and administrative sanctions for racist speech. Mary Matsuda maintains that the hate-speech problems should be resolved by outsider jurisprudence where the hate speech may be regulated based on the severe harm that results from such speech and the emerging standard of international law criminalizing racial hate messages.(98) Similarly, George Wright claims that racial epithets should be restricted so long as alternatives or "semantic substitutes" exist.(99)

4. Feminist Approach

An attack by feminists on discrimination against women in all its forms furnishes a close parallel to opponents of hate speech on campus.(100) Even though the feminist perspective seems distinct from the campaign against hate speech (because women represent at least half the population), there is a close philosophical analogy between the two campaigns. MacKinnon emphasizes the equality aspects from the racist and sexist hate speeches. She adds that not only equality on campuses and in workplaces would be promoted, but also racist and sexist remarks would be prohibited when reasonable regulations on such assaults are made.(101)

IV. HATE SPEECH AS A COMMUNICATION PHENOMENON: IMPLICATIONS OF PURE-SPEECH MODEL

How the courts understand hate speech on campus as a communication phenomenon was the major area that this article intended to explore. For this, it is required not only to review the rationales of the courts but also to simplify them into a model to facilitate understanding hate speech as a communication phenomenon.

In Doe v. University of Michigan,(102) the court found a university policy unconstitutional because it deterred education in which "the free and unfettered interplay of competing views is essential to the institution's educational mission."(103) This rationale largely reflects the court's understanding of communication theory where the First Amendment is concerned.

A basic communication model found in the court's understanding can be said to be a "pure-speech model." Courts have realized, more than anything else, that pure speech is based on a "robust exchange of ideas." Thus, the key concepts of this model are "exchange" and "interplay." In other words, to be pure, and to be protected under the First Amendment, speech needs to be exchanged and inter-played.

The curts' views on hate speech as a communication phenomenon are also well reflected in the decision of UWM Post. In UWM Post,(104) in response to the regents' contention that hate speech is unlikely to form any part of a dialogue or exchange of views, providing no opportunity for a reply, the court, citing Chaplinsky, said that "when speech is `unanswerable' . . . the First Amendment does not apply either."(105) This remark implies that if speech is not exchangeable or is unanswerable, it would not deserve protection as pure speech. Pure and protected speech should be not only free but also exchangeable.

Further, the UWM Post court developed a standard to distinguish protected hate speech and unprotected hate speech. The court stated that unprotected speech must be racist or discriminatory, be directed at an individual, demean national origin, ancestry, or age of the individual, and create intimidating and hostile activities. This distinction suggests that unprotected speech is one-way with no feedback process.

The distinction between protected and unprotected speech was applied to Dambrot. Here the court held that negative racial connotations are prohibited, but positive connotations, based on those same racial or ethnic affiliations, are allowed.(106)

This distinction, however, was blurred by the basic assumption of the R.A.V. that any type of content-based restriction on speech is prohibited by the First Amendment. The U.S. Supreme Court held that establishing content-based restrictions on speech is unconstitutional because the restrictions can limit basic requirements for the protection of pure speech. The assumption of R.A. V. extended the application of a pure-speech model to any type of hate speech.

In analyzing a pure-speech model from a communication perspective, some basic elements that constitute speech should be addressed. These elements are speaker, message, setting, receiver, and effects.(107) Despite its simplicity, these elements still deliver a lot of information to help understand the nature of hate speech. Later, communication models added a feedback element (direction).(108)

Based on this understanding, the first question that can be asked related to the pure-speech model is about speaker/receiver and setting elements. The implications of the pure-speech model state that everyone should be able to attend the speech process, whether he or she is the speaker or receiver. In a setting where those people who have different skin color, different sex, and different ethnicity are involved in hate speech, however, everyone is not able to equally take part in the free and robust speech process as speakers or receivers.

The second question regards the content of the message and its effects. The U.S. Supreme Court consistently stuck to the contentneutral doctrine. The Court did not articulate other elements such as effects which hate speech can cause. Proponents of hate speech codes find fault with the lack of attention of the Court on this point. They argue that the harmful and imminent effects hate speech brings about are the main reason to restrict hate speech on campus.

The final question is focused on the direction (feedback) of the communication process. Traditional communication models suggest that true communication is a two-way transaction between communicator and audience in which each party is engaged in problem solving, and in which each party both gives and gets something.(109) It is unnecessary to say that speech, as a form of communication, involves the feedback of listeners as well as the activity of speakers. In brief, communication models describe true speech as a phenomenon happening in a two-way direction. Both direction and feedback are significant elements of communication processes in distinguishing speech from media-mediated communication. These are useful indicators to evaluate whether the communication process is conducted properly.

Neither courts nor proponents of speech codes, however, address the feedback process or exchange of ideas in consideration of hate speech issues. As a matter of fact, even though the courts realized the importance of settings and effects, the courts totally overlooked the "direction" which is an indispensable element in constituting a pure-speech model.

VII. CONCLUSION

One of the purposes of this article was to introduce an alternative perspective that might enrich discussions on hate-speech code issues. The perspective that describes hate speech as a communication phenomenon is neither new nor unique. Rather, it has been neglected because it was taken for granted. Moreover, there must be follow-up studies and a refinement of this perspective. Nevertheless, this perspective will provide a framework to better understand the nature of hate speech and issues around speech codes on campus.

From this perspective, hate speech is a one-way communication process in its direction of influence.(110) A pure-speech model implicated in the court decisions does not include one-way communication as protected speech under the First Amendment. The Supreme Court, however, without considering the communication process of hate speech, extended the model to hate speech, adhering to the contentneutral rules. The decision of the Supreme Court in R.A. V., thus, laid a huge obstruction in the way of development of further discussions on the speech code issues.

Hate speech is a complicated First Amendment issue. Likewise, it is becoming difficult for courts to resolve increasing hate-speech issues on campus with the content-neutral doctrine alone. Speech codes are not so destructive of academic freedom of speech as the courts noted, because most of them were made for the purpose of preventing speech that is not exchangeable and not protected as pure speech. In this sense, special exceptions for the content-neutral principle should be allowed on campus.

The context or degree of effects of hate speech may be deliberated. More than anything else, however, it would be better to give thought about the way that the speech is conducted. If the given speech is performed in a one-way directional situation, it is not the pure speech that the First Amendment traditionally intended to protect."' The content-neutral doctrine which was strictly applied to speech code jurisprudence should be reconsidered based on the direction in which speech takes place.

(1.) R. Smolla, Free Speech in an Open Society 151 (1992).

(2.) See Striking a Balance: Hate Speech, Freedom of Expression, and Non-Discrimination (S. Coliver ed. 1992); see also Smolla, supra note 1, at 152 (defining hate speech as the generic term that has come to embrace the use of speech attacks on race, ethnicity, religion, and sexual orientation or preference).

(3.) See Rust v. Sullivan, 500 U.S. 173, 178 (1991) (stating that the university is a traditional sphere of free expression that is fundamental to the function of our society).

(4.) See People for the American Way, Hate in the Ivory Tower (1991).

(5.) Since the 1980s, about 100 to 200 universities have enacted campus speech codes that banned or restricted hate speech. See J. M. Holdowsky, Note, Out of the Ashes of the Cross: The Legacy of R.A.V. v. City of St. Paul, 30 New Eng. L. Rev. 1115, 1173 (1996).

(6.) The range of debates embraces themes from multicultural curricula to academic freedom and political correctness. Debates for campus speech codes were complicated in that the debates were intended to find a way to establish safe, nurturing environments on their campuses without violating rights of free expression. A. M. Gill, Revising Campus Speech Codes, in 31 Free Speech Y.B. 124 (1993).

(7.) Id.

(8.) 505 U.S. 377 (1992).

(9.) 721 F. Supp. 852 (E.D. Mich. 1989).

(10.) Id. at 857.

(11.) Id. at 858.

(12.) Id. at 867.

(13.) Id.

(14.) Id.

(15.) Id.

(16.) 774 F. Supp. 1163 (E.D. Wis. 1991).

(17.) Id. at 1169.

(18.) Id. at 1166.

(19.) Id. at 1168.

(20.) Chaplinsky v. New Hampshire, 815 U.S. 568 (1942).

(21.) Id. at 572.

(22.) 403 U.S. 15 (1971).

(23.) 774 F. Supp. at 1172.

(24.) Id. at 1170.

(25.) Id. at 1172.

(26.) Id. at 1176-78.

(27.) UWM Post, 774 F. Supp. at 1175 (citing Chaplinsky, 315 U.S. at 574).

(28.) 438 U.S. 265 (1978).

(29.) UWM Post, 774 F. Supp. at 1176 (citing Bakke, 438 U.S. at 311-12).

(30.) Id.

(31.) 993 F.2d 386 (4th Cir.1993).

(32.) 491 U.S. 397 (1989).

(33.) UWM Post, 774 F. Supp. at 1180-81.

(34.) Iota Xi, 993 F.2d at 387.

(35.) Id. at 397.

(36.) 839 F. Supp. 477 (E.D. Mich. 1993).

(37.) Id. at 479.

(38.) Id.

(39.) Dambrot v. Central Michigan University, 55 F.3d 1177, 1182 (6th Cir. 1995).

(40.) Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994).

(41.) The professor made a following statement as an example of a metaphor, "Belly dancing is like jello on a plate with a vibrator under the plate." Several female students were offended at his remarks and filed complaints with the university. Id. at 299.

(42.) Id. at 297.

(43.) Id. at 298.

(44.) Id. at 316.

(45.) Id. at 332.

(46.) Keyishian v. Board of Regents of the Univ. of the State of New York, 385 U.S.589 (1967).

(47.) Cohen v. San Bernardino Valley College, 883 F. Supp. 1047 (D.C. Cal. 1995), rev'd, 92 F.3d 968 (9th Cir. 1996).

(48.) Cohen, 883 F. Supp. at 1410. Several of his female students were offended at the sexual topic and filed complaints with the college. Id.

(49.) Id. at 1419.

(50.) Id. at 1416.

(51.) Cohen, 92 F.3d 968, at 973.

(52.) During 1991, after the publication of Speech and Democracy: Illiberal Education: The Politics of Race and Sex on Campus by D. D'Souza, affirmative action, multicultural curricular, and campus speech codes had, under the sobriquet political correctness, been debated in virtually every major news magazine and newspaper. See W. Safire, Linguistically Correct, N.Y. Times, May 5, 1991, at 18.

(53.) Sarah Dunant, The War of the Words xii (1994).

(54.) R. D. Barnes, Standing Guard For the P.C. Militia, or, Fighting Hatred and Indifference: Some Thoughts on Expressive Hate-Conduct and Political Correctness, 1992 U. Ill. L. Rev. 979, 992 (1992).

(55.) New York Magazine published an article titled "Are you politically correct?" on Jan. 21, 1990. Since that time, the press focused on the "chill" on campuses, together with the movement for adoption of multicultural curricula. These often are combined under the rubric of "political correctness." For a sampling of commentary on the "politically correct" movement, see A. Cockburn, Dangerous Diversions: Hate Speech and Political Correctness, Nation, May 27, 1991, at 690.

(56.) David T. Goldberg, Afterword: Hate or Power? in Hate Speech 267 (Willock & Slayden eds., 1995).

(57.) Note, Constitutional Law--"Words That Injure: Laws That Silence." 22 Fla. St. U. L. Rev. 1047 (1995).

(58.) F. McGowan et al., A Libertarian Critique of University Restrictions of Offensive Speech, 79 Cal. L. Rev. 825 (1991).

(59.) M. Frye, Getting It Right, 17 Signs 781 (1992).

(60.) J. Adler et al., Taking Offense: Is This the New Enlightenment on Campus or the New McCarthyism? Newsweek, Dec. 24, 1990, at 48.

(61.) Barnes. supra note 54, at 992.

(62.) Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal? 1990 Duke L.J. 484, 549 (1990).

(63.) Supra note 59, at 1085.

(64.) Id.

(65.) 505 U.S. 377. Here, the offender burned a cross on the yard of an African-American family's residence and was charged under St. Paul's Bias-Motivated Crime ordinance.

(65.) Id. at 379-80.

(66.) R. Marcus, Supreme Court Overturns Law Barring Hate Crimes; Free Speech Ruling Seen as Far-Reaching, Wash. Post, June 23, 1992, at Al.

(67.) 505 U.S. at 391.

(68.) Id. at 396.

(69.) Id at 395.

(70.) Id at 396.

(71.) Id. at 387.

(72.) Id at 398.

(73.) Id. at 403.

(74.) Id. at 392.

(75.) Id. at 399.

(76.) Id. at 389-90.

(77.) R. D. Rotunda, A Brief Comment on Politically Incorrect Speech in The Wake of R.A.V., 47 S.M.U. L. REV. 9, 10 (1993).

(78.) 505 U.S. at 387, 395.

(79.) Content-neutral restrictions are those in which the content of the speech is irrelevant to the question of whether the speech is restricted. See United States v. O'Brien, 391 U.S. 367 (1968).

(80.) Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).

(81.) See Street v. New York, 394 U.S. 576 (1969). The Court claimed, "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers." Id. at 592.

(82.) See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).

(83.) See R. Delgado, First Amendment Formalism Is Giving Way to First Amendment Legal Realism, 29 Harv. C.R.-C.L. L. Rev. 169 (1994); M. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993).

(84.) As First Amendment formalism, with its various mechanistic doctrines, models, and tests, began giving way to First Amendment legal realism, both the moderate left and the moderate right, who much preferred things the old way, have changed their ground slightly. R. Delgado & D. Yun, Essay, The Neoconservative Case Against Hate-Speech Regulation-Level, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 Vand. L. Rev. 1807, 1809 (1994).

(85.) L. Alexander, Banning Hate Speech and the Sticks and Stones Defense, 13 Const. Commentary 71, 72 (1996).

(86.) See, e.g., C. E. Finn Jr., The Campus: An Island of Repression in a Sea of Freedom, Commentary, Sept. 1989, at 17; A. C. Kors, It's Speech, Not Sex, The Dean Bans Now, Wall St. J., Oct. 12, 1989, at A 16.

(87.) D. E. Lively, Reformist Myopia and the Imperative of Progress: Lessons for the Post- Brown Era, 46 Vand. L. Rev. 865, 888, 891-93 (1994). Lively writes that civil rights activists ought to have better things to do, and that concentrating on hate-speech reform is myopic and calculated to benefit only a small number of blacks and other minority persons. Id. at 892. Instead of picking relatively small fights of their own convenience, racial reformists should be examining the obstacles that truly impede racial progress, mainly bad laws and too little money. Id

(88.) Supra note 80, at 1809.

(89.) S. Carter, Reflection of an Affirmative Action Baby 179 (1992). Carter writes that regulating racist speech will leave minorities no better off than they are, while screening out "hard truths about the way many white people look at them." Id.

(90.) The "two wrongs" concept holds that hate speech may be wrong but prohibition is not the way to deal with it. Prohibiting hate speech will lead to loss of the liberties and backfire against minorities. H. L. Gates Jr., Let Them Talk: Why Civil Liberties Pose No Threat to Civil Rights, New Republic, Sept. 22, 27, 1993, at 37-38.

(91.) L. Bollinger, Tolerant Society 78-79 (1986).

(92.) S. Fleischer, Campus Speech Codes: The Threat to Liberal Education, 27 J. Marshall L. Rev. 709, 710 (1994).

(93.) C. Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 453 (1990).

(94.) See R Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name- Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982); see also R. Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343 (1991).

(95.) M. Gale, Reimaging the First Amendment: Racist Speech and Equal Liberty, 65 St. John's L. Rev. 119, 138 (1991).

(96.) K. Greenwalt, Insults and Epithets: Are They Protected Speech? 42 Rutgers L. Rev. 30 (1990).

(97.) D. Krenzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 447 (1987).

(98.) M. Matsuda, Public Response to Racist Speech: Considering 87 Mich. L. Rev. 2320, 2332-33 (1991).

(99.) R. G. Wright, Racist Speech and the First Amendment, 9 Miss. C. L. Rev. 3 ( 1985).

(100.) See Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1 (1985).

(101.) Catharine A. Mackinnon, Only Words 106-07 (1993). 102. 721 F. Supp. at 853.

(103.) Id. at 863.

(104.) UWM Post, 774 F. Supp. at 1163.

(105.) Id. at 1175 (citing Chaplinsky, 315 U.S. at 574).

(106.) Dambrot, 839 F. Supp. at 477. See also supra text accompanying note 36.

(107.) Lasswell's communication model is found at H. Lasswell, Who Says What to Whom in Which Channel with What Effect, The Structure and Function of Communication in Society, in The Communication of Ideas 37 - 51 (L. Bryne ea., 1948).

(108.) See W. Schramm, How Communications Work, in The Processes and Effects of Mass Communication (W. Schramm ed. 1954); M. DeFleur, Theories of Mass Communication ( 1 966).

(109.) W. Bailey, The Supreme Court and Communication Theory: Contrasting Models of Speech Efficacy, in 19 Free Speech Y.B. 1, 15 (1980).

(110.) "One-way" refers to a similar situation where everybody cannot enter for a free and robust exchange of ideas. In most cases, but not always, the flow of hate speech is directed from the majority to minority, from the powerful to the powerless, from white people to people of color, and from men to women. This is very similar to Bauer's social model of communication. Separating the models of communication into two dimensions, Bauer argued that the social model of communication is a model of one-way influence in which the communicator presumably has power and does something to the audience with or without consent. On the other hand, the scientific model of communication regards communication as a two-way transaction between communicator and audience. R. A. Bauer, The Obstinate Audience 1 (E. P. Donald ea., 1965).

(111.) In this vein, speech in the classroom cannot be regarded as one-directional. See Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1994); see also Cohen v. San Bernardino Valley College, 883 F. Supp. 1047 (D.C. Cal. 1995), rev'd, 92 F.3d 968 (9th Cir. 1996).

Jae-Jin Lee is a doctoral student in the school of journalism at Southern Illinois University-Carbondale.

(*) The author wishes to deeply thank Professor Robert L. Spellman at Southern Illinois University Carbondale, School of Journalism, for his encouragement and help with this article.

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