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27 Ariz. St. L.J. 1249 (1995)
Paternalism, Counterspeech, and Campus Hate-Speech Codes: A Reply to Delgado and Yun

handle is hein.journals/arzjl27 and id is 1259 raw text is: Paternalism, Counterspeech, and Campus
Hate-Speech Codes: A Reply to Delgado and
Charles R. Calleros
In their recent essay on campus hate speech, Professor Richard Delgado
and David H. Yun respond to four objections advanced by the moderate
left against broad regulation of offensive speech on state college campuses.'
Although they assert that the four paternalistic arguments do not survive
close analysis,2 their analysis does not fairly state the strength of these
In particular, they understate the efficacy of community education and
counterspeech, omitting discussion of recent examples of successful
counterspeech and of counterproductive measures to suppress offensive
speech. Ironically, in this respect, they turn the paternalism argument on
its head by advocating administrative sanctions in place of individual and
community action and empowerment.
Perhaps most ironically, however, Delgado and Yun don't go far enough
in advocating clearly constitutional responses to discriminatory speech and
conduct on campus. To some extent, their debate with free speech advocates
on the moderate left, such as the American Civil Liberties Union,3 largely
is rhetorical because the ACLU has for several years endorsed modest
antiracism rules such as those that Delgado and Yun propose. Experience
shows, however, that an effective campus strategy for combatting hate and
bigotry relies on such rules only as a base on which to launch a constructive,
comprehensive, campus-wide effort to foster mutual respect and intellectual
inquiry. Those who continue to focus single-mindedly on the top-down
solution proposed by disciplinary codes not only raise constitutional
*    Professor of Law, Arizona State University. The author wishes to thank Robert M.
O'Neil and James Weinstein for their helpful comments and Richard Delgado for his support and
1.   Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis
of Paternalistic Objections to Hate Speech Regulation, 82 CAL. L. REV. 871 (1994).
2.   Id. at 885.
3.   Richard Delgado & David H. Yun, The Neoconservative Case Against Hate-Speech
Regulation-Lively, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 VAND. L. REV. 1807,
1809 (1994) (referring to Delgado & Yun, supra note 1, as a response to the moderate left, whose
arguments are typified by that of the national ACLU).

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