Freedom to Hate: Are 'You Deserve Rape' Signs Protected by the Constitution?

It’s easy to talk about freedom of speech in the abstract. Americans consider it one of the hallmarks of United States citizenship, and we regard those who are denied freedom of speech, like the citizens of China and Iran, with pity. We quote Voltaire, proclaiming, “I do not agree with what you have to say, but I will defend to the death your right to say it.”

But promoting freedom of speech becomes a lot more complicated when we have to defend the indefensible.

When a University of Arizona student held up a sign that read “You Deserve Rape” at an anti-sexual-violence event on Tuesday, school administrators refused requests to prevent him from doing so, citing his right to “protected” speech.

The student, Dean Saxton, is a junior studying religion and classics. Saxton regularly preaches sermons on the U of A campus under the name Brother Dean Samuel. One such sermon, given in advance of the school event, preached that women who “dress and act like whores” are “asking for [rape].”

The sermon and the sign were both responses to the sexual violence awareness event, Take Back the Night, which encourages campus unity against rape and rape culture.

There is an established legal precedent in the United States that hateful speech, however despicable, is legal as long as it does not directly provide incitement to violence. This precedent has been used to allow everything from Neo-Nazi demonstrations in Jewish communities to the military funeral protests of the Westboro Baptist Church. University of Arizona administrators defended their actions on the grounds that the content of Saxton’s words and sign did not directly incite violence or harass a particular individual.

The U of A may not have had any legal obligation to prevent Saxton’s protest. But when a student on a college campus tells his female classmates that they “deserve rape” if they don’t dress according to his standards, the university has a moral obligation to act.

Moreover, the University of Arizona, like all high schools and colleges in the U.S., has a constitutional right to limit the speech of its students. The landmark 1988 Supreme Court case Hazelwood School District v. Kuhlmeier established that high schools have the legal right to limit the speech of their students, particularly when this speech applies to fellow classmates rather than to school or political policies. In the intervening years, the Hazelwood ruling has come to be applied to college campuses as well.

As such, it would have been well within the university’s legal rights to restrain student speech that overtly promoted rape culture, because such speech directly compromises student safety on campus, even though it is not an immediate “incitement to violence.” To remove Saxton and his sign from the event would have better ensured a safe environment for the students on campus.

Certainly, the issue would be different if Saxton were not a student, or if he were protesting off campus. In either case, the law would be on his side, as it has been for Westboro and many other proponents of hate speech. Similarly, if he were merely to post his sermons online, or to blog about his extremist beliefs, he would be protected by the first amendment.

But because he chose to display his message of intolerance on a college campus and during a school event, he is subject to whatever restrains the university determines is appropriate. That U of A administrators refused to sanction Saxton, though they would have been within their legal rights to do so, reflects very poorly on the school.