Freedom for the Thought That We Hate


[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate.

Oliver Wendell Holmes, 1929

Was Justice Holmes right? Must we always protect "the thought that we hate" to maintain our democratic tradition and our hallowed right of free expression which the Constitution's First Amendment guarantees?

Recent instances of ugly expressions of race hate, gay bashing and denigration of women on college campuses suggest that the answer must be that these expressions cannot be tolerated. Fortunately, most campus officials are responding forthrightly and powerfully to verbal assaults, usually by students on other students, which cut to the quick our unending search for diversity, tolerance, and pluralism.

* Brown University recently expelled a student for shouting racial epithets and homophobic remarks on campus. It was not the first instance of such behavior by this student; he had been warned.

* The State University of New York at Binghamton called a student to a judicial-review hearing because he refused to remove a Penthouse centerfold from his dormitory door. The university called it "degrading and abusive to women."

* Closer to home, members of a Towson State University campaign ticket, consisting mainly of black students in a recent student government election, said they were subjected to telephone death threats. The university has promised to investigate the charge.

Students suffering the threat or use of punishment for thes offenses have, without exception, claimed that they may engage in this behavior because their First Amendment rights allow them to say whatever they want to say. No one may infringe on their right of free speech.

They are, of course, dead wrong. Campus officials becom accomplices to these acts of bigotry and prejudice if they do not swiftly and vigorously act to extinguish them. They are obliged to insure that campuses remain places where the university community may carry on free and open debate and discussion in environment free from fear, intimidation and violence.

Colleges and universities have a long tradition as places for the free exchange of ideas in an atmosphere of mutual respect. Campuses must be open to different ideas and welcoming to new insights, but closed to expressions attacking people based not on their weak or faulty ideas but because of their race, gender or sexual preference.

Political and social ideas with which we disagree have to be parried with evidence and arguments which meet these ideas on their merits. This is the essence of free expression. It is not free expression which permissively allows students (or anyone else for that matter) to say whatever they want under any circumstances.

The Supreme Court has ruled several times that free expression is not absolute. Justice Holmes himself wrote in 1919 that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Chief Justice Charles Evans Hughes in 1931 said that "no one would question but that a government might prevent . . . the publication of the sailing dates of transports or the number and location of troops."

Almost 50 years ago, one of the court's most visionary jurists, Justice Frank Murphy, wrote that "it is well understood that the right of free speech is not absolute at all times and under all circumstances." The limits he referred to are still relevant today. We can, indeed we must, prohibit words which "by their very utterance inflict injury."

Campuses must remain dedicated to rational debate and skepticism, not only in the classrooms but everywhere from the athletic fields and residence halls to the dining facilities and quadrangles. Campuses are not places where we are obliged to protect all thought that we hate. Even Holmes would agree that these ugly instances of racial hatred, misogyny and homophobia have passed the limits of free expression.

Jack Fruchtman Jr. teaches constitutional law and politics at Towson State University.

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