Campus Speech Codes: A Legal and Philosophical View

Abstract

The goal of this paper is to determine what needs to change about campus speech codes in order for them to succeed against First Amendment challenges. Campus speech codes are a popular solution to the problem of hate speech on campuses. However, many commentators argue that these speech codes are either unethical or unconstitutional. Additionally, speech codes have historically been struck down the courts. This paper assesses the legal history of hate speech regulation, the commentary surrounding the law, and prior court cases in which speech codes were struck down in order to determine what types of hate speech are valid targets of regulation and why speech codes have been struck down in the past. Further, this paper attempts to determine what types of hate speech actually should be regulated based on ethical and practical considerations. Finally, this paper provides a set of guidelines which should help universities construct morally permissible speech codes which will succeed against First Amendment challenges.