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As Adam blogged earlier, campus publications at the University of California, San Diego (UCSD) have been admirably defending students' First Amendment rights at UCSD and elsewhere. In the wake of a campus crisis at UCSD over free speech rights and a student government-imposed freeze on funding for student media, it is good to see student journalists standing up for the rights of their fellow students, not to mention bringing some needed common sense to discussion of these matters. The latest such effort is a ringing staff editorial in the UCSD student paper The Guardian that criticizes a for the state of California.

convincingly argues that any legislative attempt to ban hate speech is not only asking to be struck down as unconstitutional if and when it is challenged in court, but is also unwise strategy because it is unlikely to have the desired effects. (It is important to note here that FIREdoes not officially support or oppose legislation.) Of the proposed bill, the Guardian states:

Downright unconstitutional, if you ask us. A lot of other people think so too. But that's an issue that — if challenged in court — will soon be hashed out with lawyers. The real problem with California Law AB 412 is that, in attempting to protect those who are hurt by racist remarks, would end up regulating individual thought.

The issue is thus well-framed. As FIREhas made the case countless times, hate speech is protected under the First Amendment and may not be censored even under the most laudable of rationales. Attorney David Blair-Loy of the ACLU of San Diego :

San Diego American Civil Liberties Union David Blair-Loy said such a bill would be unconstitutional unless it dealt with true threats, or threats that a reasonable person would interpret as meant to inflict harm.

[...]

However, Blair-Loy said hate speech is not a true threat, and is protected by the First Amendment.

"Racial slurs and epithets and hate speech don't qualify as true threats," he said. "It's offensive, it's degrading, but it is unconstitutional to make it illegal."

He added that the university cannot define which speech is protected.

"Every time the university establishes speech codes to try to end hate speech, it's always been struck down by the courts," he said.

Even putting aside the constitutional flaws of this bill, however, the Guardian's staff editorial correctly points out that the practical impact on campus of the bill would be counterproductive:

Of course, most would rather poke fun at such legislation than care about what's behind it: a group of students who feel ostracized when they hear their peers throwing around racial slurs with such causal callousness. But even if an umbrella policy swooped in and forced every hurtful word out of public discussion, the ignorance would remain.

Any policy which forces tolerance would most likely polarize the community further. Just think how determined Koala members were to release a sufficiently offensive issue once A.S. President Utsav Gupta slapped their paws and froze their funding. When a group of students feels their right to free speech is being threatened, they will come out in full force — focusing on their right to say something rather than how it might affect someone living a different experience.

The staff editorial adds:

That's why we feel student leaders shouldn't waste their time with broad legislation that trickles from the top down and gives even more power to administrators. Instead, they should focus on enlightening a student body that's still got a lot to learn about the system. Along with pumping up outreach efforts and maintaining retention programs for minority students, why not plan campuswide campaigns that invite students to learn more about where organizations like MEChA and the BSU are coming from? Education cannot stop at a few impassioned rallies — we need to engage in an active dialogue about why hate speech is hurtful.

Well said. The Guardian's prognosis of the bill is spot-on, and its prescription for the UCSD campus—and for other campuses in California—would do much more to help students understand one another. We thank the Guardian for its vigilance and excellent coverage of these ongoing matters.