The Offense of Going Too Far : Limit the First Amendment? Or limit offensive speech?

Sticks and stones May break my bones But names can never hurt me.

In adulthood, the schoolyard jingle yields to other forms of verbal self-defense: the stinging rejoinder, the studied insult, the public protest. Absent libel, however, American jurisprudence has, in effect, always told the insulted, “You’re on your own.”

The basic distinction that the First Amendment enshrines is one between conduct and expression. As easy to grasp in principle as the difference between harmful sticks or stones and harmless names, this distinction can be extremely difficult to maintain in practice. Currently, the assaults against it come in the name of offended groups more than of offended individuals, and those assaults may yet succeed.

Nadine Strossen, president of the American Civil Liberties Union, raised this unsettling prospect last summer when she wrote:

“In 1992 the Canadian Supreme Court essentially rewrote Canada’s obscenity law to incorporate Professor (Catharine) MacKinnon’s theory that speech that is ‘degrading’ or ‘dehumanizing’ to women should not be protected under Canada’s equivalent of our First Amendment because avoiding the perceived harm to women was deemed more important than protecting free speech. Inspired by this decision, she and her supporters have vowed to pursue similar rulings in the United States. Moreover, some leading constitutional scholars have predicted that this strategy will ultimately succeed.”

In this war, the college campus is a major battleground. Codes barring “hate speech” with sanctions as serious as expulsion have become increasingly common. So far, fortunately, these codes have not survived legal challenge. Hate speech codes at the Universities of Wisconsin and Michigan fell to lawsuits by the ACLU, and in 1992 the U.S. Supreme Court struck down a St. Paul, Minn., ordinance criminalizing hate speech.

The Times welcomes these victories for the First Amendment as it also welcomes the recent settlement of a suit brought by the Individual Rights Foundation against the three-year suspension of members of the Phi Kappa Sigma fraternity at the University of California, Riverside, for their wearing of an ethnically offensive T-shirt. The fraternity’s national office has quite properly required of the vulgarians in its Riverside chapter a letter of apology to the campus and 16 hours of service each to the Latino community in reparation, but equally proper in the settlement is the requirement that the students be reinstated and three UCR administrators undergo “First Amendment sensitivity training.”

“Political correctness” at its most grotesque must be seen against the backdrop of a far more grotesque exaggeration; namely, the transformation of insult into “politically incorrect” entertainment by the likes of Andrew Dice Clay, Rush Limbaugh and Howard Stern. And political correctness, it should be remembered, all but never rises to the level of violent crime, while its opposite--as in the rash of skinhead crimes in Sacramento--does so with sickening frequency. But even if “political correctness” is, at the start, less an offense than a response to an offense, it can and must be checked at the point where it infringes on the indispensable protections of the First Amendment.