Law Students Criticize Policy On Hate Speech

Citing vague wording and the possible threat to freedom of expression, Law School students criticized a proposed ban on "hate speech" during a public meeting yesterday.

More than 60 students attended the meeting in the Law school's Austin Hall. The ban is included in the official draft of suggested new sexual harassment guidelines for the Law School.

The draft, which was released last week by the faculty Committee on Sexual Harassment Guidelines, deals with two broad issues: "Sexual Harassment" and "Harassment by Discriminatory Conduct and Personal Vilification."

Professor of Law Richard H. Falon, the committee's chair, said the guidelines aim to promote a more favorable environment for people working and learning at the Law School.

All of the student speakers at the meeting were supportive of the first part of the guidelines which deal exclusively with sexual harassment. But the section about "hate speech" came under attack from a variety of perspectives.

This section would prohibit any from of speech that constitutes harassment "by personal vilification." The section also would ban speech that stigmatizes through remarks or epithets which "unreasonably interfere" with another person's work or academic performance.

Third-year student Hans F. Bader said the proposal needed more specific wording.

"The guidelines [on hate speech] are too vague in terms of words and language," Bader said. "There is no clear definition of words like `degrading' and `offensive' and the policy is viewpoint-based"

A number of students, including Bader, said Harvard should not attempt to restrict the right to free speech guaranteed by the first Amendment.

But while Fallon said hate speech guidelines were "more tentative" than the sexual harassment guidelines, he was quick to defend their validity.

"We care about the firs Amendment as much as you do," Fallon said. "We can prohibit hate speech in easy cases, but there are hard cases where the circumstances are not that welldefined. The question is: how far do we go?"

Several speakers, However, expressed concern about the school's ability to discuss difficult matters.

Second-year student Spencer G. Levy said students are already "Severely inhibited" in discussing difficult issues.

"My experience at Harvard Law is that classroom discussion on sensitive issues like rape, the death penalty andaffirmative action has been either unsatisfying,stifled or has not happened at all," Levy said."These rules [on hate speech] would only push thissilent line further."

Fallon responded by pointing to an "educationalproviso" in the document. He said this provisomeans the rules would not apply in situations of"public and legal learning."

While Levy says there should be "completeimmunity" in a classroom setting, he said heagrees that a hate speech code would bebeneficial.

Professor of Law Alan M. Dershowitz, a memberof the committee, offered his interpretation, ofthe type of situation the guidelines were designedto regulate.

"We are trying to divide the sexual from thesexist.," Dershowitz said/ "We are focusing onsituations where a boss directs repeated racist,sexist or homophobic remarks at a subordinate,making that person too uncomfortable to continuein that position."

Dershowitz said the code would not apply incases of discriminatory remarks made from studentto student or from faculty member to facultymember. "This will only address vilification in ahierarchical situation," he said.

But third-year student Bill C. Waller, who ispresident of the Law School Republicans, saidDershowitz's explanation was not sufficientlyclear.

"What about discriminatory remarks made by athird-year to a first-year when both of them areworking on a student journal?" Waller said.

And not all the committe members said theyagreed with Dershowitz and Levy. ProfessorElizabeth Bartholet said students should rememberthat Dershowitz's views did not represent theviews of the entire committee.

"I would say that this document spells out thelaw and makes it less vague," Bartholet said. "Ithink it is possible for students to get hurt evenwithin a class setting."

Waller was one of several students who said hedisagreed with the hate speech code. He saidHarvard was setting a bad precedent for otherinstitutions by imposing guidelines about hatespeech.

Waller also echoed Levy's concern that studentswould be discouraged from speaking their minds.

"Harvard is not exactly the most social place,and nobody wants to create enemies among the fewpeople one knows, so nobody really speaks up,"Waller said. "This type of regulation will onlyincrease the chilling [effect]."

But second-year student Lisa M. White '92 saidshe was happy with the Law School's decision to"finally take a stance."

"I experienced hate speech during myundergraduate years [at Harvard]... and it is timefor the Law School to stop saying its hands aretied and to say it will not tolerate this," saidWhite, who is Black. "Earlier, I felt marginalizedand unprotected."

In addition, ten students stood up to showtheir support for the hate speech ban.

But, in an interview after the meeting, Wallernoted that White experienced hate as anundergraduate, and not during her time at the Lawschool.

"Have there been that many cases [of hatespeech] here at the Law School that require such adocument?" Waller said.

But Dershowitz said that in considering theguidelines, people should remember what is bestfor the Law School.

"We don't have to follow the courts--we shouldfollow what is right for Harvard Law School, andshould be confident that the courts will follow,"Dershowitz said. "The harm at Harvard Law issilence, not speech.

Fallon responded by pointing to an "educationalproviso" in the document. He said this provisomeans the rules would not apply in situations of"public and legal learning."

While Levy says there should be "completeimmunity" in a classroom setting, he said heagrees that a hate speech code would bebeneficial.

Professor of Law Alan M. Dershowitz, a memberof the committee, offered his interpretation, ofthe type of situation the guidelines were designedto regulate.

"We are trying to divide the sexual from thesexist.," Dershowitz said/ "We are focusing onsituations where a boss directs repeated racist,sexist or homophobic remarks at a subordinate,making that person too uncomfortable to continuein that position."

Dershowitz said the code would not apply incases of discriminatory remarks made from studentto student or from faculty member to facultymember. "This will only address vilification in ahierarchical situation," he said.

But third-year student Bill C. Waller, who ispresident of the Law School Republicans, saidDershowitz's explanation was not sufficientlyclear.

"What about discriminatory remarks made by athird-year to a first-year when both of them areworking on a student journal?" Waller said.

And not all the committe members said theyagreed with Dershowitz and Levy. ProfessorElizabeth Bartholet said students should rememberthat Dershowitz's views did not represent theviews of the entire committee.

"I would say that this document spells out thelaw and makes it less vague," Bartholet said. "Ithink it is possible for students to get hurt evenwithin a class setting."

Waller was one of several students who said hedisagreed with the hate speech code. He saidHarvard was setting a bad precedent for otherinstitutions by imposing guidelines about hatespeech.

Waller also echoed Levy's concern that studentswould be discouraged from speaking their minds.

"Harvard is not exactly the most social place,and nobody wants to create enemies among the fewpeople one knows, so nobody really speaks up,"Waller said. "This type of regulation will onlyincrease the chilling [effect]."

But second-year student Lisa M. White '92 saidshe was happy with the Law School's decision to"finally take a stance."

"I experienced hate speech during myundergraduate years [at Harvard]... and it is timefor the Law School to stop saying its hands aretied and to say it will not tolerate this," saidWhite, who is Black. "Earlier, I felt marginalizedand unprotected."

In addition, ten students stood up to showtheir support for the hate speech ban.

But, in an interview after the meeting, Wallernoted that White experienced hate as anundergraduate, and not during her time at the Lawschool.

"Have there been that many cases [of hatespeech] here at the Law School that require such adocument?" Waller said.

But Dershowitz said that in considering theguidelines, people should remember what is bestfor the Law School.

"We don't have to follow the courts--we shouldfollow what is right for Harvard Law School, andshould be confident that the courts will follow,"Dershowitz said. "The harm at Harvard Law issilence, not speech.