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The Freedom of Hate Speech

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The Swastika is one of the most powerful and recognizable symbols in the world.  It has the connotations of separation, superiority, race, and aggression.  There is nothing pleasant about the symbol, especially what it means to the wearer—hate, racism, and discrimination.

Even though the symbol goes against American ideology (not to mention that Swastikas were the symbol of a US enemy in WWII), a small class of people claiming to love America don it proudly.  In early August 2017, hundreds of white nationalists marched through Charlottesville, VA protesting the removal of Confederate statues in the city.  They marched, wearing Nazi and Ku Klux Klan garb, through the town and chanted various hateful slogans or slogans associated with Nazi Germany, such as: “You will not replace us”; “Jews will not replace us”; “Blood and soil.”  Even though they were armed with perverse slogans, discriminatory symbols (to also include Confederate flags), and inciting language, the white nationalists were permitted to conduct their protest.  The 1st Amendment of the Constitution granted this permission.  How?

Perhaps it’s best to start with what the 1st Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (Emphasis added).

People wearing Nazi uniforms and waving Confederate flags, while carrying guns and shields, does not seem to fall in line with a peaceful assembly.  Once again, how does the Constitution permit hate speech and aggressive protests?

The US Supreme Court has consistently rejected attacks on limiting freedom of speech.  Most recently and notably, the Court found in Matal v. Tam (July 2017) that there can be no limitations on free speech in a democracy.  In the decision, the Court (Justice Samuel Alito writing for the majority) explained, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”  Justice Alito added that a “bedrock” principle of the 1st Amendment is that “Speech may not be banned on the ground that it expresses ideas that offend.”  Based on this decision and decades of precedent, the Court clearly interprets the US Constitution to permit hate speech.  Is protection extended to hate speech regardless of its effect?

When it comes to violence, the law focuses on intent.  What did the person intend to do?  Was that person’s action(s) premeditated?  If so, did he/she intend the result?  That brings us to the “fighting words” exception of the 1st Amendment.

In the 1942 case of Chaplinsky v. New Hampshire, the Court found that “fighting words” are not protected and emphasized “there are certain well-defined and narrowly limited classes of speech…[which include] insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of peace…are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  It should seem, then, that Nazi phrases and hate speech are fighting words because they are meant to elicit a response.  There is no “benefit that may be derived from them.”  The Court disagrees.

 


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The Court clarified its perception of fighting words and hate symbols in R.A.V. v. City of St. Paul (1992).  The most relevant fact of the case is that a teenager burned a cross on the lawn of a black family.  In doing so, he violated a St. Paul, MN Bias-Motivated Crime Ordinance and was sentenced accordingly.  Upon review, the Court found that St. Paul’s ordinance was unconstitutional because a burning cross did not amount to “fighting words.”  Justice Scalia, the majority writer, explained:

A State may choose to prohibit only that obscenity which is the most patently offensive in its prurience—i.e., that which involves the most lascivious displays of sexual activity.  But it may not prohibit, for example, only that obscenity which includes offensive political messages… Displays containing abusive invective, no matter how vicious or severe, are permissible.

Even though the Court has specifically permitted hate speech, has it addressed what constitutes “people peaceably” assembling?  Does the Constitution allow Americans to parade through a town with the intent to offend?  Yes.

In Terminiello v. City of Chicago (1949), the Court found that a Chicago statute banning speech in a public place that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” to be unconstitutional and noted that the “vitality of civil and political institutions in our society depends on free discussion….The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.  Accordingly a function of free speech under our system of government is to invite dispute.  It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”  Terminiello was relied on in National Socialist Party of America v. Village of Skokie, a case adjudicated on procedural issues but involved protesters displaying Swastikas.  The Court implicitly found that Swastikas do not amount to fighting words and, as such, are protected speech.

Similar decisions of free speech manifested as physical acts include the right to burn an American flag (Texas v. Johnson (1989) and US v. Eichman (1990)), a burning cross on a lawn does not constitute fighting words (R.A.V.), and demonstrating with homophobic and offensive signs at a funeral does not amount to the intentional infliction of emotional distress (Snyder v. Phelps (2011)).  In a poignant dissent, Justice Alito wrote that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.  In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like the petitioner.”  Justice Alito was the sole dissenting voice in Snyder’s 8-1 decision, a very telling illustration of the Court’s heavy protection on free speech.

Until the Court bans hate speech (which will not happen), we will continue to have martyrs – those people that sacrifice themselves, willingly or not, in order to counter hateful displays.  Such martyrs, though, are not just martyrs against hate speech.  They are martyrs that protect freedom of speech.

The value of hate speech is that it keeps the 1st Amendment open.  That is, the 1st Amendment does not have limitations on it, except in the very narrowly-tailored exception of “fighting words.”  In a provocative sense, hate speech must exist much like the adage that both good and evil must coexist.  It is unfortunately necessary for towns such as Charlottesville to continue to allow Nazi, Klan, or alt-right protests in order to preserve the 1st Amendment.  The Court is not willing to quash hate speech because placing a limitation on one type of speech opens the door for limitations on others.  Granted, no other speech is as inciting or offensive as hate speech.  However, the Court does not want 2017 and beyond to turn into 1984 or a US society in which citizens can no longer express themselves with impunity—a totalitarian society.

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