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Free Speech

Hate Speech at a High School

Ronald Den Otter | 5.29.2026 11:21 AM

In my last post on the VC, I would like to say a bit about so-called "hate speech" (which I address in the last chapter of my book, arguing that it should be constitutionally protected in public schools). I say "so-called," because it might be better to drop the term "hate speech" insofar as it implies an extreme aversion to a particular group. However, in this post, I will use the term for convenience.

No single legal definition of hate speech exists. The term is notoriously difficult to define with sufficient precision. As a result, those who support anti-hate speech codes on college campuses, for example, must say more about what to do about invariable vagueness and overbreadth problems than they usually do. That hate speech is constitutionally protected in the U.S. has not stopped university administrators to try to make it much harder for students to express certain ideas with impunity.

I doubt that any anti-hate speech code at a public school could be formulated and applied in a way that would not ban or chill speech that ought to be constitutionally protected. Such codes would be ripe for overreach and misapplication, apart from allowing viewpoint discrimination. It is important to understand that even if a particular word—like a racial slur—has little, if any free speech value most of the time, the fundamental problem is that if the government can ban that word, then it also has the authority to ban other words, regardless of the context and the intent of the speaker or writer.

In the late 1980s and 1990s, lower courts struck down a variety of speech codes on college campuses. In R.A.V. v. City of St. Paul, writing for the majority, Justice Antonin Scalia invalidated a Minneapolis anti-hate speech ordinance on the ground that it was underinclusive. For him, the law in question invited government to engage in viewpoint discrimination inasmuch as people could be prosecuted for expressing racist views but not for expressing racially egalitarian views or homophobic views.

In Scalia's view, government must remain neutral towards all viewpoints, even........

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