Nibble at Freedom, and Risk Losing It All : First Amendment: Tools dragged out to stifle hateful speech would disturb bedrock principles of free expression.

The American doctrine of free expression, as embodied in the First Amendment, is undergoing a re-examination. For confirmation of this phenomenon, one need not look beyond the newspaper headlines. Universities have proposed and adopted regulations that punish students for racist remarks, legislatures have attempted to outlaw flag-burning and the National Endowment for the Arts has restricted grants to artists whose work may be deemed offensive or obscene.

Increasingly bold and offensive examples of speech have captured the nation’s attention and sparked public impatience with the status quo. A sharp rise in racist incidents has led some universities to adopt codes punishing hostile discourse. Stanford University recently became the latest to forbid verbal, written or symbolic attacks against individuals “on the basis of their sex, race, color, handicap, religion, sexual orientation, or national or ethnic origin.” To the outrage of some civil-libertarians, the three California affiliates of the ACLU have adopted resolutions approving these regulations.

A growing group of legal scholars who claim that it is possible to carve out exceptions to traditional free-speech doctrine without disturbing bedrock principles have added intellectual support to the public outrage. Proponents of these restrictions argue that racial insults act as “assault weapons” and undercut the First Amendment goal of robust debate by chilling minority commentary. The net result of outlawing some speech, this thinking goes, will be more (and more diverse) speech.

The defenders of these limitations, however, suffer from a lack of historical perspective. Their argument, that we can adjust our concept of free speech for the occasion, has often been employed as a justification for speech restrictions and has repeatedly been rejected by the U.S. Supreme Court. Explained Justice Oliver Wendell Holmes: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought--not free thought for those who agree with us, but freedom for thought that we hate.”

Let us not forget that the First Amendment serves to protect the minority against majoritarian impulses to suppress the airing of unpopular views. Although the inclination to repress statements most of us find abhorrent is understandable, placing censorship decisions in the hands of the most vocal or politically powerful is antithetical to the aims of the First Amendment. It is unfortunate, but it seems that every generation must relearn the lesson that we cannot forbid particular forms of expression without running the risk of suppressing important ideas in the process.

Opponents of restrictions argue that permitting bans on some “hate speech” requires us to ban all such speech. This objection has merit. At the very least, it is difficult to comprehend how universities, legislatures and ultimately courts will be able to root out offensive speech in any acceptable, neutral manner. How does one distinguish the anger felt by many Southerners when civil-rights activists criticized their ways and the injury caused by the emotionally charged language that surrounds the abortion debate from other hateful and hurtful statements that some propose to ban?

Censorship of this type threatens our uneasy consensus regarding the protected nature of speech content. Once the courts accept the notion that they have a right to slice away discrete areas of expression from First Amendment protection, much of the amendment’s central role may be lost because almost no form of speech will be beyond legislative reach.

Although many groups have understandably grown impatient with the intractability of some of the sexist and racist behavior that constantly confronts them, the answer does not lie in suppressing the views of their adversaries. There is great danger that tools used benevolently today will be employed as instruments of destruction tomorrow.

Clearly, there is a need for vigorous action to combat racial and other forms of discrimination. But curbing First Amendment freedoms is the wrong way to achieve this goal. Justice Holmes explained and history has taught us, in the long run, the best answer to “bad” speech is more and better speech, not new laws, litigation and repression. The refusal to suppress offensive speech is one of the most difficult obligations that the free-speech principle imposes upon us all; but the First Amendment requires no less. It has defined our country for almost 200 years. We must avoid nibbling at it.