A Proposed Process for Managing the First Amendment Aspects of Campus Hate Speech

For public institutions, attempts to regulate hate speech raise substantial legal issues under the First Amendment of the U.S. Constitution. For private institutions, which may not be bound by the First Amendment, attempts to regulate hate speech raise sensitive policy questions concerning the role of free expression on campus. Numerous articles (many of which are listed in the references below) have undertaken substantive analysis of these constitutional issues and policy questions. In contrast, this article explores a preliminary and overarching concern: the process by which a college or university addresses the problem of hate speech, and in particular the process by which the institution manages the First Amendment aspects of the problem. In other words, this article focuses on the decision-making process rather than on the decisions themselves; it is the journey, not the destination, that is of primary concern