Content-based restrictions on speech cannot be imposed by the government, because of the 1st Amendment. This includes speech deemed to be "hate" or "discriminatory". Examples: Doe v. University of Michigan, 721 F. Supp. 852. The university prohibited
Any behavior, verbal or physical, that stigmatizes or victimizes an
individual on the basis of race, ethnicity, religion, sex, sexual
orientation, creed, national origin, ancestry, age, marital status,
handicap or Vietnam-era veteran status, and that...Creates an
intimidating, hostile, or demeaning environment for educational
pursuits, employment or participation in University sponsored
extracurricular activities.
The court invalidated this restriction because
The Supreme Court has consistently held that statutes punishing speech
or conduct solely on the grounds that they are unseemly or offensive
are unconstitutionally overbroad
In UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163, the court struck down a similar governmental violation of the 1st Amendment:
The university may discipline a student in non-academic matters in the
following situations:
For racist or discriminatory comments, epithets or other expressive
behavior directed at an individual or on separate occasions at
different individuals, or for physical conduct, if such comments,
epithets or other expressive behavior or physical conduct
intentionally:
- Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or
individuals; and 2. Create an intimidating, hostile or demeaning
environment for education, university-related work, or other
university-authorized activity.
saying that
the suppression of speech, even where the speech's content appears to
have little value and great costs, amounts to governmental thought
control. An individual instance of thought control may not appear to
impose great costs on society. However, if a balancing test is used
there are likely to be many such instances. Taken as a whole, these
instances will work to dissolve the great benefits which free speech
affords.
The (state) university in Bair v. Shippensburg University, 280 F. Supp. 2d 357 had a rule that
The expression of one's beliefs should be communicated in a manner
that does not provoke, harass, intimidate, or harm another.
and the court yet again reminded us that
regulations that prohibit speech on the basis of listener reaction
alone are unconstitutional both in the public high school and
university settings.
DeJohn v. Temple University, 537 F.3d 301 centers around a rule that
all forms of sexual harassment are prohibited, including ...
expressive, visual, or physical conduct of a sexual or
gender-motivated nature, when ... (c) such conduct has the purpose or
effect of unreasonably interfering with an individual's work,
educational performance, or status; or (d) such conduct has the
purpose or effect of creating an intimidating, hostile, or offensive
environment.
The consequence of this rule was that a student "felt inhibited in expressing his opinions in class concerning women in combat and women in the military".
Under the university policy,
a student who sets out to interfere with another student's work,
educational performance, or status, or to create a hostile environment
would be subject to sanctions regardless of whether these motives and
actions had their intended effect. As such, the focus on motive is contrary to
Tinker's requirement that speech cannot be prohibited in the absence of a tenable threat of disruption
Moreover,
the policy's use of "hostile," "offensive," and "gender-motivated" is,
on its face, sufficiently broad and subjective that they "could
conceivably be applied to cover any speech" of a "gender-motivated"
nature "the content of which offends someone."
This could include "core" political and religious speech, such as
gender politics and sexual morality.
Absent any requirement akin to a showing of severity or pervasiveness
that is a requirement that the conduct objectively and subjectively
creates a hostile environment or substantially interferes with an
individual's work the policy provides no shelter for core protected
speech.
This is a matter similar to Roe v. Wade: it's settled law, and yet government agencies still seek to circumvent the law by constantly re-wording the restriction.
