Words Which by Their Very Utterance Inflict Injury

College students urging the punishment of speech that “wounds” risk silencing the causes they support.

Marko Djurica / Reuters

College students seeking to suppress or punish speech in their communities are the latest iteration of a longer tradition in American life than many of their critics acknowledge. That’s true even narrowing our backward gaze to Supreme Court cases from the last century.

During World War II, for instance, the case of Chaplinsky vs. State of New Hampshire considered whether the municipality of Rochester had, by arresting Walter Chaplinsky, a Jehovah’s Witness, for his speech, violated his rights. On the day in question, Chaplinsky was distributing literature on the street when a crowd became inflamed at his message and complained to the city marshal, James Bowering. At first, Bowering advised the crowd that Chaplinsky was acting within his rights; later, after another altercation, he warned that his literature was creating a disturbance.

Chaplinsky responded, “You are a God damned racketeer” and “a damned Fascist,” and “the whole government of Rochester are Fascists or agents of Fascists.” He was arrested under a local law stating that “no person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”

The Supreme Court declined to declare that law unconstitutional.

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem,” the majority opinion stated. “These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words––those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

That is the origin of “fighting words” as an exception to freedom of speech, though the dearth of subsequent cases citing that exception and other jurisprudence cutting against it suggest that corner of First Amendment law no longer applies. Nevertheless, the case was cited in the scholarship of critical race theorists in the 1980s and 1990s as they urged state punishment of racist hate speech (their notion of what that encompassed was narrower than some of today’s undergraduates), premised partly on the notion that some words by their very utterance inflict injury.

Henry Louis Gates Jr., the director of the Hutchins Center for African and African American Research at Harvard University, traced that history in “Let Them Talk,” his masterful 1993 critique of critical race theory and defense of free speech. He noted that the notion of injurious words did survive for awhile in state courts, with results like this:

An apparently not atypical conviction––upheld by the Louisiana state court––was occasioned by the following exchange between a white police officer and the black mother of a young suspect.

He: "Get your black ass in the goddamned car."

She: "You god damn mother fucking police––I am going to the Superintendent of Police about this."

No prize for guessing which one was convicted for uttering fighting words.

Alas, such cautionary tales are mostly unknown on today’s college campuses. As in the 1990s, the aim of activists “is not to resist power, but to enlist power.” We are witnessing another attempt to revive the notion that certain instances of speech inflict injury by their very utterance, and should therefore be suppressed or punished. But even as notions of what constitutes impermissible “hate speech” expand, the potential for suppression to boomerang back on activists is seldom considered.

An instructive example is unfolding at the five undergraduate institutions that make up the Claremont Colleges. Student protesters attempted to shut down a recent speech at Claremont McKenna by Heather Mac Donald, the Manhattan Institute scholar, War on Cops author, and critic of the Black Lives Matter movement.

David Oxtoby, the president of Pomona College, responded to efforts to shut down her speech by releasing a statement defending liberalism. “Protest has a legitimate and celebrated place on college campuses,” he wrote. “What we cannot support is the act of preventing others from engaging with an invited speaker. Our mission is founded upon the discovery of truth, the collaborative development of knowledge and the betterment of society. Our shared commitment to these values is critical to educating leaders who are prepared to craft solutions to the most complex problems we face.”

In response, a group of student activists sent him a petition demanding a revised statement. They wrote, “If engaged, Heather Mac Donald would not be debating on mere difference of opinion, but the right of Black people to exist.” That is an inaccurate rendering of her views, which I know well, having disagreed with her for years on policing, which we both cover—Mac Donald’s explicit and oft-repeated position is that “there is no government agency more dedicated to the idea that black lives matter than the police,” a conclusion she reached after years of reporting on New York City, where a sharp decline in the murder rate, which she attributes to improved NYPD tactics, saved hundreds of would-be black murder victims, a trend she believes to have been exported to other cities through “the NYPD diaspora.”

There are many solid critiques of her earnestly held positions (and many people of all races who basically agree with Mac Donald). Unfortunately, the petition signed by petitioners at the Claremont Colleges mostly raises and then begs the wrong questions.

“Heather Mac Donald is a fascist, a white supremacist, a warhawk, a transphobe, a queerphobe, a classist, and ignorant of interlocking systems of domination that produce the lethal conditions under which oppressed peoples are forced to live,” it states. “Why are you, and other persons in positions of power at these institutions, protecting a fascist and her hate speech and not students that are directly affected by her presence?”

The language is striking to anyone familiar with the critical race theorists, the Supreme Court cases that their scholarship drew upon, and the people who are typically punished when speech restrictions are successfully implemented in the United States. These students, who seek to weaken free speech norms, do not see how vulnerable to punishment their own speech would be under an alternative paradigm. Not only are they dubbing someone a “fascist,” a word the Supreme Court specifically held to inflict injury at its very utterance, they are doing so at a moment when there is a national movement urging the punching of fascists—and a White House and Congress that leans on authoritarian-inflected populism more than any in a generation, making it especially likely that new speech restrictions would be used to suppress dissent.

It is similarly easy to see how another strategy of critical race theorists—the attempt to punish some speech by declaring it “group libel”—could be coopted to punish everything from pro-Palestinian activism to group insults like “fuck the police” or “fuck white tears,” or even analytic claims about “white fragility” or “cisgender privilege.”

At times, the Claremont petitioners do recognize the value of free speech, if only by way of trying to qualify it. “Free speech, a right many freedom movements have fought for, has recently become a tool appropriated by hegemonic institutions,” the students write. “It has not just empowered students from marginalized backgrounds to voice their qualms and criticize aspects of the institution, but it has given those who seek to perpetuate systems of domination a platform to project their bigotry.”

Their error isn’t merely thinking that one can have free speech norms that  “empower students from marginalized backgrounds” while suppressing speech from hegemonic institutions—rather, they err in attributing the power of “those who seek to perpetuate systems of domination” to free speech. Persons or institutions that already exercise hegemony need not rely on laws or norms protecting unconstrained expression to share their views. As Georgetown’s David Cole once put it, “in a democratic society the only speech government is likely to succeed in regulating will be that of the politically marginalized. If an idea is sufficiently popular, a representative government will lack the political wherewithal to suppress it, irrespective of the First Amendment. But if an idea is unpopular, the only thing that may protect it from the majority is a strong constitutional norm of content-neutrality.”

The Claremont Colleges are not government institutions, but a similar logic applies. It is almost never the case that a group is both so marginalized that it is threatened by speech, and so powerful that it can persuade an authority to suppress speech.

Later in their petition, the students of the Claremont Colleges demand that the colleges take action against a conservative student newspaper, The Claremont Independent, for what they characterize as “its continual perpetuation of hate speech, anti-Blackness, and intimidation toward students of marginalized backgrounds,” adding that if the newspaper reports on their petition, “provided that the Claremont Independent releases the identity of students involved with this letter and such students begin to receive threats and hate mail … we demand that this institution and its constituents take legal action against members of the Claremont Independent involved with the editing and publication process as well as disciplinary action, such as expulsion on the grounds of endangering the wellbeing of others.”

If these demands were met, would it not demonstrate that the petitioners exercise more power on campus than the students whose punishment they seek? Would not the precedent of punishing students in the manner suggested put the petitioners at risk, if their denunciation of the Claremont Independent led to verbal attacks on its staffers?

There is, finally, a weakness in the petitioners’ argument that “Pomona cannot have its cake and eat it, too,”—that it cannot, on one hand, say that it supports and respects black students, and on the other hand, defend letting Heather Mac Donald speak, even if institutional leaders purport to disagree with the substance of her views.

Gates offers the best rebuttal to that view (albeit in a slightly different context):

A university administration that merely condemns hate speech, without mobilizing punitive sanctions, is held to have done little, to have offered "mere words."

And yet this skepticism about the power of "mere words" comports oddly with the attempt to regulate "mere words" that, since they are spoken by those not in a position of authority, would seem to have even less symbolic force.

Why is it "mere words" when a university only condemns racist speech, but not "mere words" that the student utters in the first place? Whose words are "only words"? Why are racist words deeds, but anti-racist words just lip service?

Near the end of “Let Them Talk,” Gates turns specifically to the subject of codes implemented on college campuses to punish hate speech. As he summarized them:

The record may surprise some advocates of regulations. "When the ACLU enters the debate by challenging the University of Michigan's efforts to provide a safe harbor for its Black, Latino and Asian students," Charles R. Lawrence writes, "we should not be surprised that nonwhite students feel abandoned." In light of the actual record of enforcement, however, the situation might be viewed differently. During the year in which Michigan's speech code was enforced, more than twenty blacks were charged––by whites––with racist speech. As Nadine Strossen of the ACLU notes, not a single instance of white racist speech was punished, a fact that makes Lawrence's talk of a "safe harbor" seem more wishful than informed.

At Michigan, a full disciplinary hearing was conducted only in the case of a black social work student who was charged with saying, in a class discussion of research projects, that he believed homosexuality was an illness, and that he was developing a social work approach to move homosexuals toward heterosexuality. ("These charges will haunt me for the rest of my life," the student claimed in a court affidavit.) By my lights, this is a good example of how speech codes kill critique. I think that the student's views about homosexuality (which may or may not have been well-intentioned) are both widespread and unlikely to survive intellectual scrutiny. Regrettably, we have not yet achieved a public consensus in this country on the moral legitimacy (or, more precisely, the moral indifference) of homosexuality. Yet it may well be that a class on social work is not an inappropriate forum for a rational discussion of why the "disease" model of sexual difference has lost credibility among social scientists. (In a class on social work, this isn't p.c. brainwashing, this is education.) The trouble is, you cannot begin to conduct this conversation when you outlaw the expression of the view that you would criticize.

I believe that Heather Mac Donald’s views on policing are widespread, wrongheaded, and unlikely to survive intellectual scrutiny. Regrettably, Americans have not yet achieved a public consensus on the moral necessity of better policing our police. The trouble is, you cannot begin to advance that project when you suppress the airing of the view that one must understand to persuade millions of people to abandon. (Most students cannot even accurately characterize Mac Donald’s arguments.)

When I was an undergraduate at Claremont, Pat Buchanan spoke on campus. I found a lot of his beliefs odious. But his presence prompted me to familiarize myself with his ideas and the strongest arguments against them. That put me on an intellectual trajectory that allowed me to argue more effectively in subsequent years on behalf of gay marriage, against nativists, and many years later, against the toxic identity politics of Donald Trump.

If something like the Campaign Zero agenda for policing reform is going to triumph in America, future leaders at places like the Claremont Colleges will need to know how to meet people like Heather Mac Donald in face-to-face encounters, and to demonstrate that their critiques and ideas are superior. Simply declaring that she is a bigot will not, in fact, advance social justice. If these students succeed in changing free-speech norms in any realm, so that expression is more routinely suppressed when dubbed injurious or hateful or libelous, the history of speech restrictions on and off campus—a history routinely ignored by student censors—suggests marginalized communities will be hardest hit by their pyrrhic victory.