Hate speech codes suffer from multiple First Amendment problems. They are not content neutral; they are written to punish a particular type of expression and a particular point of view. They are manifestly vague and overbroad, employing such nebulous terms as "'demeaning,' 'disparaging,' 'harassing,' 'hostile,' 'insulting,' 'intimidating,' and 'stigmatizing'" to describe the speech that they condemn. The codes grant substantial discretion to school administrators or their surrogates, whose own biases may themselves be unpredictable. The validity of speech turns on the reaction of its audience, rewarding bland conversation and penalizing robust dialogue. The term "chilling effect" would appear to have been coined with hate speech codes in mind.
(J. Harvie Wilkinson III, "The Law of Civil Rights and the Dangers of Separatism in Multicultural America," Stanford Law Review 47 [May 1995]: 993-1026, at 1025 [footnote omitted])
