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Abstract

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal Employment Opportunity Commission (EEOC), U.S. courts are willing to penalize those who verbally harass others on the basis of their sex. That the courts appear to have conflicting approaches to different classes of hate speech begs the question of why this disparity exists. Why is it that courts bristle at university hate speech codes but allow other cases to go forward protecting women from harassing speech? A logical first step would be to address the various court opinions on the subject, and to be sure many a judge has tried to justify the distinction between hate speech codes and sexual harassment law based on the different environments in which they each arise. This distinction has also caught the attention of several legal scholars, most of whom accept the notion that sexual harassment law can be distinguished from hate speech policies. As a group, they either agree with the courts that the rules of the workplace (sexual harassment) are inapplicable to the classroom (hate speech), or they argue that sexual harassment law should be limited to conduct and that any sort of verbal harassment, no matter its basis or target, violates the First Amendment to the U.S. Constitution. This Article challenges those assumptions, arguing that we need to rethink the courts' treatment of sexual harassment law and hate speech codes. Contrary to many commentators, I reject the notion that sexual harassment law is easily distinguished from hate speech codes or that the courts have done an adequate job of explaining their divergent decisions. If anything, the courts have been unusually silent on the question, and those that have considered the issue often leave us with conflicting opinions. Indeed, this riddle is what makes the judicial treatment of hate speech so interesting. Because the courts have been unclear in their justifications, we need to work harder to uncover their true motivations and explanations. This Article tries to do just that, eventually concluding that social and political theories do more to explain the courts' behavior than do jurisprudential answers. One of the Article's majors conclusions is that the courts' different treatment of sexual harassment and hate speech stems from their divergent views of gender and racial protection, and ultimately in the American public's conflicting attitudes towards women's and minorities' rights.

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