How Free Should We Be?

It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict. The difficult and sometimes painful task of our political and legal institutions is to mediate the appropriate balance between these competing ideas.
-Judge Cohn

Timothy Shiell claims that no policy, no matter how sophisticated, no matter how well grounded in history or law or philosophy or politics, will leave something to be desired. We have to make a decision about how we handle campus hate speech because right now we are in the middle with no real answers- because even though free speech is an important moral and political value, hate speech should not be tolerated on college campuses. The task of analyzing the campus hate speech debate is an overwhelming one. The attempt is to draw a line between individual liberty and state regulatory authority, and this is one of the problems of politics, law and philosophy. How free should we be? Within our constitutional democracy, when does my conduct and speech go so far as to require government intervention? Samuel Walker, an authority on the history of hate speech in America, discusses how “tolerant” we should be of the “intolerance.”
If a regulatory code is adopted, what should it prohibit? And why? What exactly are we hoping to accomplish through such a code? How effective will codes be in attaining their goals? Are there more effective ways to promote and attain their goals? Will adoption of such a code open the door to self-righteous censors who simply want to silence their opponents? Will a hate speech code wrongly impinge on student and faculty academic freedom?
Should people be free to assert “fighting words?” what are fighting words? Should citizens be punished for racists libels? Can we identify and punish “bad” speech without chilling “good” speech? Should citizens be punished for proclaiming politically unpopular, even “un-American,” speech? These questions are joining a continuing debate over two fundamental American values, equal opportunity and free speech.
Some defenders of speech codes may be out to silence political opponents, while some would rather provide a mechanism for the protection of individual rights guaranteed by law. The p.c. objection falsely ascribes evil intentions to all of its opponents (they’re ALL ideological thought police), when the intention of many defenders of speech codes is to design a public policy sensitive to the requirements of both free speech and equal opportunity, not to silence political opponents. Ideally, if an advocate’s position is being rejected, it must be because he or she has failed to offer logically compelling arguments for the position, not because you disapprove of or dislike the arguer or suspect bad motives. Thus we must always look beyond people’s motives or agendas (with out ignoring them) to determine whether the arguments for the proposed case pass our shared tests of sound public policy.
How we respond to hate speech depends largely on the vague definitions associated to hate speech acts. There is a need for definitions of: harm, hostile environment, academic freedom, fighting words…etc. The new debate being fought: the law of hostile environment. Since hostile environment harassment based on race, color, sex, religion, or ethnicity has been rules illegal by United States Supreme Court, but there is still a need to focus on the relationship of hate speech and hostile environments. The law changes constantly - this is a fact of all legal systems – the law evolves in response to social and political pressures as well as technological innovations. William Rehnquist says that the constitution is a “living document.” Moreover, the law must be sensitive to contexts, and it is not a settled conclusion that all form of offensive speech should be. What complicates this further is that what was once protected may not be in the future and what was once unprotected may well become protected at some future point (stability becomes instability).
The question still remains: how free should we be? What does free mean? And who decides?