UC faces the impossibility of banning "hate speech"

They can see that such a ban might hit some of their favorite things -- such as "affirmative action" advocacy and anti-Israel protest

The challenges are enormous, if not insurmountable, as the regents of the University of California seek to develop a hate-speech policy on campuses. Recent anti-Semitic incidents spurred the regents to want to take action, but at their Sept. 17 meeting, they chose not to adopt proposed "principles against intolerance." Instead, they created a committee to consider the issue anew. The reality, however, is that the chance of a breakthrough is low.

Any written policy would need to achieve conflicting goals: expressing a strong commitment to freedom of speech as an integral aspect of education, while seeking to prevent speech that is racist, sexist, anti-Semitic or homophobic. The trick is in setting the border between heated, even inflammatory, speech and hate speech, which is notoriously difficult.

The Supreme Court long has held that vague speech rules violate the 1st Amendment and deny due process of law. In fact, efforts at defining hate speech by other state universities have been declared unconstitutional on vagueness grounds.

The University of Michigan, for example, adopted a code in the 1980s — later struck down by the Supreme Court — that prohibited "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status."

But what does it mean to "stigmatize" or "victimize"? If a professor or student argues that there are inherent differences between men and women, does that violate the policy? Can advocacy of affirmative action be deemed to violate this policy because it stigmatizes racial minorities by assuming that they need preferential treatment to compete?

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