Hate Speech

Hate Speech:

A Call to Constitutional Arms

David Kennedy

Professor. Moyer-Guse

Comm. 170

2 June 2006

The first Amendment, as written by the founders of the constitution, uses plain language that is explicitly clear. The first Amendment does not say Congress shall not make some law, but rather speaks in absolutes. Nonetheless, over time, the courts have curtailed the meaning of protection granted to speech through several cases regarding questionable speech. As time has progressed, the court has commonly sided with the speaker of the questionable speech under the notion of staying in line with the fundamental rights established in the first Amendment. On the topic of hate speech, the court has generally come to the consensus that such speech is granted constitutional protection. Nonetheless, there still remains some gray area as to the scope of protection allotted to hate speech. Despite the hatred that can be conveyed to others through hate speech, such expression needs to be protected so that all can voice their opinion because the power of expression is a fundamental right of all Americans.

In order to understand the issue at hand, a brief history of first Amendment precedent must be discussed. Several precedents severally curtailed the scope of free speech protection. In Chaplinsky v. New Hampshire (1942) the court ruled that "fighting words" were not constitutionally protected; fighting words are those that by "their very utterance inflict injury or tend to incite an immediate breach of the peace." The court justified it's ruling stating that such speech adds "no essential part of any exposition of ideas" and contains such slight social value that it's benefit is "clearly outweighed by the social interest in order and morality." In Brandenburg v. Ohio (1969) the court ruled that the government cannot punish provocative speech unless it is directed to inciting and likely to produce "imminent lawless action." However in Cohen v. California (1971), the court ruled that speech couldn't merely be offensive to not receive first Amendment protection. Thus, the first Amendment does not protect speech that produces "imminent lawless action" or "fighting words," but however protects offensive, not obscene (Roth v. U.S.), material.

In 1991 in R. A. V. v. City of St. Paul, the topic of hate speech entered into the courts. A 17-year-old boy and several other teenagers had broken the city ordinance against hate speech by constructing a cross and setting it ablaze in the fenced yard of a black family. The issue then came forth as to the constitutionality of the ordinance. The trial court ruled the statute was overly broad and content based. However, the State Supreme Court overturned the lower courts decision concluding that cross burning was "fighting words" and that the city statute provided a "compelling government interest in protecting the community against bias-motivated threats to public safety and order." The case was then taken to the U.S. Supreme Court where the defense, in favor of the State, argued that hate speech "is not a political statement, or even a cowardly statement of hatred. It is the first step in an act of assault. It can be no more protected than holding a gun to a victim['s] head. It is perhaps the ultimate expression of 'fighting words.'" Contrary to such logic, the U.S. Supreme Court overturned the State Supreme Court decision, finding the city's ordinance unconstitutional. The Court declared cross burning not to be 'fighting words' but rather a "viewpoint" in the "free market of ideas" protected by the first Amendment. In his opinion, Justice Scalia brings forth the realities of the legal system. Scalia states, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But, St. Paul has sufficient means at its disposal to prevent such behavior without adding the first Amendment to the fire." Essentially the argument is being made that there are easier ways to deal with the situation of hate speech such as prosecuting under trespassing laws or fire permit laws than turning to the constitution to restrict speech.

In partial concurrence with the State Supreme court in R. A. V. v. City of St. Paul, Charles Lawrence III, Professor at Stanford Law School and well known critical race theorist, argues that hate speech should not be protected because of the serious injury that it inflicts. Lawrence asserts that hate speech is not merely a unfavorable view among the public, but a weapon that is commonly wielded against minorities. Lawrence attempts to make the connection between the effects of hate speech to the effects of racial segregation on minorities. In Brown v. Board of Education the holding was that segregation in public schools violated the principle of equal protection guaranteed by the fourteenth Amendment of the U.S. Constitution. The main element leading to the courts ruling was that minority children were marked with a "badge of inferiority" as a result of segregation despite how "equal" the facilities were. Lawrence asserts that hate speech should be viewed through the rationale applied to Brown and subsequently banned because it produces psychological damage to the recipients in the form of a "badge of inferiority." Lawrence counters the notion of hate speech being a "viewpoint" in the "marketplace of ideas" by arguing that hate speech silences speech instead of promoting it, which consequently contradicts the ideology of the "marketplace" that is supposed to promote the exchange of ideas. By this, Lawrence means that there is no equitable reply to hate speech because the recipient is inferior and cannot offer a contrary viewpoint since his voice is not of equal value.

Similar to the ideas of Lawrence, Catherine Mackinnon, a Michigan law professor and a well known feminist, argues, according to the American Journalism Review, first that "words are powerful" and second "that words cannot be separated from actions, especially those based on sex." She, like Lawrence, reasons that, "speech should be seen not just through the first Amendment but through a fourteenth Amendment "equality lens" as well." MacKinnon acknowledges that, "social life is full of words that are legally treated as the acts they constitute"