105 Iowa L. Rev. 2233 (2020)

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Abstract

Fifty years ago, the Tinker case confirmed the free speech rights of students and identified the classroom as “peculiarly the marketplace of ideas.” Upholding the students’ right to protest the Vietnam War, Tinker was one of many Supreme Court decisions to establish the First Amendment as an ally in movements for freedom, justice, and equality.

Today, by contrast, free speech has become a mantra for alt-right groups who frequently spread hateful messages on college campuses. Although hate speech is clearly harmful, eradicating it is difficult under current First Amendment law, and many question whether efforts to limit hate speech could harm the very marginalized groups they are intended to protect.

Although banning hate speech may not be feasible, there are alternative ways to think about free speech that can ameliorate much of the damage that hate speech causes. First Amendment canon holds that the answer to speech you do not like is not suppression but “more speech.” As it has been interpreted, however, this is a negative view of free speech in which the government’s role is mainly to get out of the way and let the chips fall where they may.

I argue for a more positive view of the government’s role in dealing with hate speech on college campuses. It suggests that universities should take affirmative steps to encourage “more speech” on campus and spread the burdens of free speech across the public who benefits from it. Under this view, universities can protect the free speech rights of all individuals, mitigate the harm hate speech causes to specific groups and individuals, and actively encourage a more robust marketplace of ideas on their campuses.