Assaultive Words and Constitutional Norms

Abstract

The tension between the competing demands of the First. Amendment’s guarantee of free expression and the Fourteenth Amendment’s implicit promise of dignity and equality has long been evident in societal debates about identity politics, in academic writing, and in disputes over regulation of campus speech. This article argues that the First Amendment generally protects campus speech that includes hurtful words, even those that verbally assault a target or are seen as perpetuating an environment that demeans or endangers women, minorities and others. Protection of such offensive speech also promotes the proclaimed norms of higher education, which is why so many private colleges and universities bind themselves to First Amendment standards which are only applicable to public institutions as a matter of law. In addition to analyzing campus speech regulations under First Amendment standards, the article offers some possible solutions and constitutionally sound responses, concluding with suggestions directed at law schools.