The Modern State of Hate Speech and the Necessary Revival of the Chaplinsky 'Fighting Words' Doctrine for College Campuses

Abstract

Speech censorship in the United States carries with it a laundry list of legal, philosophical, and political concerns both in its favor and in its opposition. This is especially true for the debate surrounding “hate speech” censorship on the University Campus. The current U.S. Supreme Court standard protects “hate speech” under the First Amendment of the U.S. Constitution but the relevant law is ambiguous and not necessarily set in stone in this regard. Mainline Civil Libertarians have tended toward approaching this problem with more speech, rather than with censorship while Censor Advocates have offered several options for working within the First Amendment framework to Constitutionally prohibit certain “hate speech.” This paper demonstrates how the underlying assumptions of the Civil Libertarian approach to free speech are outdated in the modern media environment showing that there is a need for “hate speech” censorship on a narrow definition of the College Campus. Given this exigent need, this paper then offers a revival of the often-discredited Chaplinsky v. New Hampshire doctrine of “fighting words” censorship as roughly envisioned by Charles Lawrence in 1990. Analysis and application of the Chaplinsky precedent using the lower U.S. Circuit Courts demonstrate that the “fighting words” doctrine is not only good law but that it offers the most viable solution for a narrowly tailored Constitutional approach toward modern “hate speech” censorship.