Civil Liberties in Conflict with Civil Rights: The Case of Hate Speech on College Campuses
A Political Science Lesson by Andrew Crown
Objective: My objective in this lesson is to present a brief overview of the conflict between civil liberties and civil rights as demonstrated in the case of hate speech on college campuses. After introducing the topic I will elicit discussion and debate from the students (professors) about the topic.
There are several key words and terms related to the concepts of rights which we must clearly define before discussing this issue.
Negative Freedom: Negative freedom is protection from unwarranted intrusion into the realm of our personal freedom from government or any other powerful institution with the power to deprive us of the kind of freedom we enjoy when we are left alone to do as we choose. This kind of freedom is best understood as freedom from, or freedom against. It is a preventative kind of freedom and places certain restrictions on government actions and the actions of other institutions in society which have the potential to intrude and intervene into our realm of choice and action, inhibiting us from realizing and experiencing what we define as “the good” for us.
Positive Freedom: Positive freedom is the right and ability to enjoy and experience freedom, often with the assistance of government or some other powerful institution with the resources and power to enable us to experience liberty, equality, and other positive goods which human beings are predisposed to enjoy. This kind of freedom is best understood as freedom to, or freedom for. We experience it when the government or some other institution helps us or assists us in a positive purposeful manner to experience an expansion of our capacity of free action in the attainment of “the good” as we define that term for ourselves.
Civil Liberties are closely related to the concept of Negative Freedom. They are protections from the power of governments and include the following rights as well as others:
Right to Life
Self-defense
Fair Trial
Habeas Corpus
Privacy
Speech, Expression, Association, Assembly
Freedom of Religion
In the United States these rights and liberties are based on the Constitution and more specifically the Bill of Rights. They are grounded in the English law tradition dating as far back as 1214 and the Magna Carta. The key thing to remember about these rights is that they are restrictions on government conduct and protect us from government violations of our freedoms by placing limitations on what the government is permitted to do.
Civil Rights: In contrast to civil liberties, civil rights are best understood as linked to the concept of positive freedom. The government in the case of civil rights takes positive steps to ensure that citizens enjoy the protections and privileges of personal liberty which are granted to all citizens by law. Although in common usage, the terms “civil liberties” and “civil rights” are often used interchangeably, in reality they are not identical because while civil liberties often imply restrictions on government action, civil rights in contrast often lead governments to take positive steps to make the enjoyment of civil rights a reality. In the US the Constitution, federal statues, federal court decisions, and the 13th and 14th Amendments to the Constitution have formed the basis of much civil rights policy.
Hate Speech is any speech intended to degrade, intimidate, or incite violence or prejudicial action against a group of people based on their race, ethnicity, national origin, religion, gender, sexual orientation, or disability. This is a controversial term since some would argue that any attempt to restrict or silence even the most controversial speech is an unwarranted restriction on civil liberties. Other claim that the pain, disadvantage, intimidation, and discrimination experienced by the victims of hate speech is real, and that hate speech must be restricted in order to uphold the civil rights of the targets of hateful speech.
II. Hypotheticals and Questions
Now that we have a clear understanding of a few of the key terms related to the conflict between civil liberties and civil rights as exemplified in the case of hate speech, I would like to begin our discussion using several hypothetical examples and questions regarding hate speech on a college campus. As you attempt to answer these questions please keep in mind that the American tradition of negative freedom and civil liberties may place certain legal restrictions on your response to instances of hate speech. As an employee of a state funded institution you are not permitted to violate a student’s civil liberties. At the same time the American tradition of positive freedom and civil rights should encourage you to take positive and affirmative steps to uphold the principles of equality, fairness, and respect for diversity in the classroom. You may be obligated to defend or protect students who are the victims of discrimination.
1. A student during a class discussion makes the following statement. “Affirmative Action in college admissions is not justified because minority students are lazy are less qualified than white students.” Taking into consideration the fact that the first amendment to the constitution grants all Americans the civil liberty known as freedom of speech and expression, how would you respond to this statement? Would hearing this statement influence the manner in which you grade the student’s performance in class? Are you required to respect the student’s right to express this opinion, or as an educator are you required to encourage the student to adopt the “right” or “correct” opinion?
2. A student-run newspaper which receives funding from the college publishes an editorial criticizing Secretary of State Rice as a black war monger. Included in the editorial is a political cartoon of Secretary Rice as a black caricature sending minority soldiers off to war in Iraq. As faculty advisor for this student-run newspaper, do you exercise censorship over this article and demand that the students use more respectful language? Do you refuse to allow the students to publish the article?
3. A fellow faculty member publishes an article on the internet claiming that the holocaust never occurred. This thesis is a major theme in his class on European history. Jewish and Polish students on campus have demonstrated outside the professor’s classroom and complained to the administration. What action if any would you take?
4. To what extent should the right not to be offended exist on American college campuses?
5. In any of these cases would you feel the need to consult a lawyer in order to make your decision? In which case and why?
6. Considering your responses to these questions, what generalizations can you make about the conflict between civil rights and civil liberties, both in general, and in the specific case of hate speech on college campuses?
7. Is the movement to limit hate speech simply a case of political correctness, or is it a valid attempt to use the influence of college faculty to ensure that all students' civil rights are protected and respected in the classroom and beyond in college?
For more United States History notes, visit Mr. Crown's United States History and Government Page.
For fiction, literary criticism, political theory, political science, and history stories and essays, visit the online resume/CV/portfolio of Andrew Lawrence Crown. Click here and scroll down to the bottom of the resume/CV/portfolio to find the links to the Collected Writings of Andrew Lawrence Crown.