One would expect someone with a law degree to understand and appreciate the first amendment.
Both sides indeed....
The Free Speech-Hate Speech Trade-Off
“Controversies over freedom of speech on college campuses have existed as long as there have been college campuses. But the specific issues vary with each generation.”
That is the first line of Erwin Chemerinsky’s new book, “Free Speech on Campus,” written with Howard Gillman. Mr. Chemerinsky is not only one of the foremost legal scholars on the First Amendment but also a firsthand witness to the free speech debates of today as the new dean of the University of California Berkeley School of Law.
Erwin Chemerinsky:
I think we have to be attentive to the fact that many students want to restrict speech because of very laudable instincts. They want to protect other students from hate speech. They want to create an inclusive community for all. But the response to hate speech can’t be to prohibit and punish it. It’s unconstitutional. We have to find other ways to create inclusive communities.
The law under the First Amendment is clear: Hate speech is protected speech. Over 300 colleges and universities adopted hate speech codes in the early 1990s. Every one to be challenged in court was ruled unconstitutional. And there are good reasons for that.
After some really ugly incidents at the University of Michigan in the late 1980s, the school adopted a hate speech code that was undoubtedly well intentioned. But a federal court declared it unconstitutional, in part, because it was so vague. It said that there could not be speech that “demeans or stigmatizes” anyone based on race or gender. But what does that mean? A sociobiology student who challenged the law said, “I want to study whether there are inherent differences between women and men. What if my conclusions are deemed stigmatizing on the basis of gender?” And during the years Michigan’s speech code was on the books, more than 20 black students were charged with racist speech by white students. There wasn’t a single instance of a white student being punished for racist speech, even though that was what had prompted the drafting of the Michigan speech code in the first place.
That’s part of a much bigger historical pattern: As we saw in Michigan, when hate speech codes or laws are adopted, they are most often directed at the very groups they are meant to protect.
I think it’s so important for campus officials to respond to and condemn hate speech. Just because the First Amendment protects a right to say something, that doesn’t mean it
should be said.
Campus officials can describe the type of community they want to create and denounce hate speech as inconsistent with it. Many years ago, when I was teaching at the University of Southern California Law School, someone wrote a very offensive homophobic slur on a chalkboard. The dean did not try to find out who did it or threaten punishment. Instead, he wrote a very powerful statement about why what happened was inconsistent with the community we aspired to be. His message had an enormously positive effect.
Also, it is very important that the students themselves respond to offensive speech. They can hold counter-demonstrations, teach-ins and protests. All of that is protected speech. They just can’t protest in a way that interferes with the ability of others to speak.
The law is clear that even in places that are open to speech, there can be time, place and manner restrictions, so long as there are adequate places for free speech. There is a right to speak on the campus, but there is no right to come into my classroom and shout me down. There is a right to use public streets and sidewalks, but a city can prevent trucks with sound amplification equipment from playing music in the middle of the night. Dormitories are also a very special place of repose for students. It’s their home, and the Supreme Court has recognized the protection of privacy of people in their homes. So there can be much greater restrictions in dormitories — but it always has to be content neutral. It can’t be based on content or message.
The central principle of the First Amendment — and of academic freedom — is that all ideas and views can be expressed. Sometimes they are ideas and views that we might consider noble, that advance equality. Sometimes they might be ideas that we abhor. But there is no way to empower a government or campus administration to restrict speech without allowing for the possibility that tomorrow, it will be our speech that is restricted.
Entire article:
https://www.nytimes.com/2017/09/13/opinion/berkeley-dean-erwin-chemerinsky.html