On the protection of hate speech in America
In society freedom is regulated for the benefit and protection of its members. Freedom has historically been regulated in instances where actions can cause harm to others; however, in such circumstances there is usually a conflict as to the priority of the rights of the individual versus the preservation of public order. One very important type of restricted freedom is that of speech. Historically, Americans have enjoyed the freedom of open speech, as enumerated by the first amendment to the Constitution of the United States. As in many instances, the right to speech is convened with responsibilities and restrictions. Unprotected speech, as suggested by common law, and defined by case law, includes certain types of speech that do not have enough value in expressing true ideas to justify the harm that they cause. The focus of this discourse will be to answer the question regarding hate speech and its legality, based on how it relates to the classes of speech that have been historically protected, and those that have not. More specifically, does hate speech fall under the category of protected speech? Hate speech does in fact fall under the category of protected speech for several reasons; it is neither mentioned in the Constitution nor covered under a non-protected class of speech by case law or common law; therefore, it cannot be regulated without infringing on the rights of the people.
Laws punishing hate speech are inherently controversial, due to the fact that the right to free speech is a cornerstone of American values. Freedom of speech, the press, and the right of the people peaceably to assemble is guaranteed to all Americans by the first amendment. These rights are essential for maintaining a functioning and open democratic government, in which the governed can express opinions, beliefs, and facts without fear of retribution. Hate speech is often recognized as communication with the intent to portray hatred or distain toward a person or group of people on the basis of race, religion, sexuality, ethnicity, disability, or other such factor intrinsic to the person's identity. Hate speech has been punished and protected on numerous occasions. When punished it has been categorized with other classes of speech, which according to Justice Murphy include:
"…the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and 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."
The above classes of speech are not protected under the First Amendment, and their exclusion from the category of protected speech can be traced back to common law practice. The categories as commonly understood are seditious speech and libel, fighting words and threats to the peace, and defamation. These categories have been interpreted to create a legal penumbra that has fluctuated in its restriction of hate speech. Cases such as Beauharnais v. Illinois, Smith v. Collin, Chaplinsky v. New Hampshire, R.A.V. v. St. Paul, Virginia v. Black, Madsen v. Women's Health Center, and United States v. Watts form the backbone of the American jurisprudence as it relates to hate speech.
In Beauharnais, the court upheld that an individual can be held liable for the act of libel committed against a group of people. In this case, the defendant, Beauharnais, distributed a bunch of literature which 'described the evils of the negro population.' This information was found to be malicious and patently untrue, and therefore libelous. This restricted hate speech on a very fundamental level, and formed some questionable legal precedents. If group libel was actually unprotected speech, what was to prevent lawyers from suing anyone who published a libelous account of the legal profession? While Beauharnais was never over turned, it has become very weak in light of following cases.
The fact that Beauharnais has become weak shows that the decision that was possibly made without regard to future implications, not necessarily due to myopia on behalf of the court, but due to the specific circumstances regarding the case. Furthermore, by holding the information dispensed by Beauharnais to be untrue and malicious and therefore libelous, the court set a dangerous precedent. While such statements might suffice as evidence of defamation when asserted of an individual, they cannot be defamatory due to the nature of the audience at which they are directed as certainly there are elements of said population that could justify such claims.
Libel and other defamatory speech has never been considered protected, and certainly speech only intended to cause harm and defamation by its falsehood to a targeted individual should not be protected. However, it has been a long standing principle that the first amendment serves to protect the espousal of ideas, no matter how vile or despicable they may seem. According to current case law, Beauharnais v. Illinois, hate speech can be punished by authorities, due to the fact that it can be construed as libelous by certain legislation. On this case, the court's opinion, as presented by Justice Frankfurter states: "The Illinois Supreme Court tells us that 224a 'is a form of criminal libel law.' 408 Ill. 512, 517, 97 N. E. 2d 343, 346. The defendant, the trial court and the Supreme Court consistently treated it as such."
This legal principle has startling repercussions in the realm of censorship at the hands of the legislature on all levels. If this principle is extended, it is easily seen how with the right legislation, opposition to other groups such as political parties, an ethnic majority, or a religious sect might be curtailed by simply declaring statements libelous. Things such as political cartoons, parodies of government officials, and radical protests could all very easily be declared illegal.
The question then becomes, how can we distinguish between what is libel and therefore unprotected speech, and what is the espousal of one"s own ideas. In order to declare hate speech illegal because of its defamatory aspects certain conditions would have to be met. Included in these conditions are: intent to cause harm or damage, and the statement must be untrue. In addition, to recover for defamatory damages, the plaintiff must actually suffer harm. According to these conditions it becomes clear that the majority of hate speech cannot be considered libel, or even defamatory. It follows as such; characterizations, name calling, and hyperbole can not be proven patently true or false with even the slightest notion of reliability, and therefore no statements consisting of such can be considered defamatory. Hate speech is little more than characterizing a certain group of people in a manner that characterizes them, exaggerates their flaws, or calls them insulting names.
In the case noted above, defense against criminal libel consisted of proof that the statements made were based in truth, and put forth in a measure of good faith or providing essential information. No where is it noted in the Illinois statute that opinions are protected, and the defendant's publication consisted of statements concerning the "rapes, robberies, knives, guns and marijuana of the negro" (343 U.S. 250), which can clearly be interpreted as the defendant's personal views regarding African American lifestyle. It would be impossible to prove that African Americans do not partake in rapes, robberies, knives, guns, etc. because people of all races and nationalities do, on the opposing hand, it would be easy to prove that an individual does or does not have a vested interest in marijuana. The first amendment is first and foremost intended to protect the right of an individual to freely express ideas, and to prevent government regulation of the thoughts or opinions of its citizens. If a state government can regulate one man's expression of ideas concerning a race of people, depriving him of his first amendment rights, what is to prevent that same government from regulating a man's expression of ideas pertaining to the morality of a particular political party?
In Smith v. Collin, Collin had petitioned for permission for the Ku Klux Klan to march in the village of Skokie, Illinois. They were denied the permit, and took the matter to court. Eventually they received permission, after the decision was reversed and modified by higher courts. This decision highlights a different take on freedom of expression, and shows that rallies and demonstrations by hate groups fall under protected categories of speech.
Thus at this point it can be asserted that two fundamental facets of hate speech belong under the penumbra of first amendment protection. Generalized assertions about a race or population with regard to hyperbole, exaggeration, or characterization cannot be defamatory as indicated by Beauharnais; and, as demonstrated by Smith v. Collin, America still values the right to peacefully assemble, regardless of who is doing the assembling. Certainly were it any other group there would be no question as to the validity of their right to assemble.
Chaplinsky set the precedent for the illegality of fighting words, and was summarized as: "The law forbids under penalty that any person shall address 'any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place,' or 'call him by any offensive or derisive name.'" This decision was later used in R.A.V. v. St. Paul to outlaw cross burning, as it was likely to provoke retaliation, and promote a disturbance to the peace. Under R.A.V. cross burning was explicitly made illegal. Later in Virginia v. Black the decision was modified, cross burning was not inherently illegal, but doing it on someone else's property with the intent to harass or intimidate was. The court also set the precedent that true threats cannot be protected speech (Madsen v. Women's Health Center, and United States v. Watts).
The aforementioned cases demonstrate that although there may be a degree of threat to public order, it is out shadowed by the rights of the individual to express their opinion. Chaplinsky expressly defines the "fighting-words" class of unprotected speech, and later R.A.V. stipulates that hate inspired acts, or symbolic speech can be restricted as fighting words. Most notably however, is the court's reversal in Virginia v. Black where it makes the distinction between the "fighting-words" aspect of hate speech, the actual threatening nature of burning a cross on the target's personal property, versus symbolically expressing hatred in a way that, in the court's opinion, would not cause unreasonable duress on behalf of a reasonable population, or provide a drastic threat to the peace.
It can be seen that it is important to draw a distinction between what will be referred to as natural hate speech for the remainder of this discourse, and hate speech that falls under other categories of unprotected speech. Certainly the point of this examination of the legality of hate speech is not to assert that all speech that contains hate should be protected, but rather that the espousal of hate in and of itself is a valid expression of an idea, and should not be regulated except where it crosses the boundary into realm of restricted speech. As an example, a commercial for diapers that depicts a nude child would not be treated in the same regard as soft-core child pornography, although the actual content might in some cases be comparable. In this way child pornography is censored not just because of the content contained therein, but for the fact that it falls into the obscene category of speech, where as a hypothetical commercial would not. Similarly, speech containing hatred that is a true threat should not protected as it falls under an unprotected class of speech.
English Common Law describes obscenity as "anything which depraves or corrupts minds open to immoral influence" (413 U.S. 15). Obscenity laws often deal with pornography, and in 1973 a standard test was reached in Miller v. California, which remains the standard to this day. The Miller Test in its simplest form attempts to ascertain whether the material would be found offensive to an average member of the community, and whether the work did not possess a literary, scientific, artistic, or political value (413 U.S. 15). If both criteria are met, the work is considered obscene, and therefore can be censored.
It can easily be demonstrated that while not all, some hate speech will have a definitive political value, and hateful expression might even extend to other values, such as artistic and literary. In this manner, hate speech cannot fall solely under obscenity statutes, although there are certainly some instances where certain hateful statements might, and therefore might be rightfully censored under the auspices of such legislation and case law.
Seditious speech and libel are two classes of speech that have had a long history of legislation. Acting against the government in speech or thought was made a crime in 1798 by The Sedition Act (Walker 57). Since its inception the Sedition Act was never challenged in the Supreme Court, but has lost a large amount of power based on Jurisprudence alone, most notably in New York Times Co. v. Sullivan. Seditious speech and libel will not be discussed much further as they do not intrinsically relate to hate speech or the legality thereof. Sedition refers to speech against government interests, and unless hate speech is directed at an individual who is a member of the government the two issues will most likely never intertwine. Even in such a case, because the speech would not be addressing the government itself it is doubtful that the already weakened statutes would play much of a role in the disposition of such circumstances.
All of the above mentioned classes of speech are not afforded protection under the first amendment in varying degrees. The sedition act has little prominence as law, where as obscenity is viciously prosecuted in cases involving children and other illegal practices. Because of the varying degrees of protection afforded these types of speech, it is necessary to say that there is only semi-protected speech, there are no classes of speech which are absolutely forbidden, nor classes of speech which are absolutely protected. Hate speech is no different in that speech containing hate can just as easily fall into a category of unprotected speech as it can avoid such distinctions. It stands to reason that so many tests are required to ascertain the protected status of so many different kinds of speech. Because of the inclusive nature of our rights, rights which are not expressly reserved are given to the people, it stands to reason that unless a separate category of speech is established, and hate speech included within, it cannot and should not be punished, as it would be further limiting the first amendment rights of the people. It is not a matter of simply establishing law, but actually modifying the oldest amendment to the Constitution of the United States. Considering such a modification cannot come lightly, as in nearly all other cases the degree of ambiguity and room for interpretation as crafted by the founding fathers has sufficed this far, even in cases where they could not reasonably anticipate cultural or technological advances.
Philosopher John Stuart Mill made a strong argument in his publication "On Liberty" which basically summarizes America's reasoning for placing such a strong influence on freedom of speech. His argument can be summed up as the following: a true but unpopular idea, when censored can deny society great advancement, where as an untrue idea, even expressed widely can give society a chance to examine and strengthen convictions, bringing it one step closer to truth. This argument was strongly considered by the Founding Fathers, and indeed does seem to play an integral part in democracy as America knows it.
Speech is highly valued in America. Because speech has the power to cause great harm it is regulated to a certain degree. This regulation was not intended to censor ideas. Hate speech is only an expression of beliefs and ideas and therefore should not be regulated.
Hate speech cannot be considered defamatory because it is impossible to prove or disprove the majority of the claims made in hate speech. Furthermore, according to jurisprudence, defamation cannot be achieved by characterization, exaggeration, or hyperbole; all of which are components of hate speech.
If hate speech is not explicitly restricted by common law or in our constitution it cannot be regulated with out the addition of a new class of unprotected speech. This is illogical as it would require changing the oldest amendment to the constitution, and in almost every other case the founding fathers wrote the document with enough maneuvering room that second guessing the constitution or bill of rights was never necessary. Clearly free speech was a high ideal, and modeled after the ideas of Mill.
If hate speech is not defamatory, is not restricted as another class of speech, and grounds for establishing such a category are questionable at best, hate speech should remain and be considered protected speech, in all cases that it does not blatantly fall into a category of unprotected speech.
Beauharnais v. Illinois. No. 343 U.S. 250. U. S. Supreme Court. 28 Apr. 1952. 28 Mar. 2007 ‹ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=343&invol=250 › .
Chaplinsky v. New Hampshire. No. 315 U.S. 568. U. S. Supreme Court. 9 Mar. 1942. 22 Mar. 2007 ‹ http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=315&invol=568 › .
Madsen v. Women's Health Center. No. 512 U.S. 753. U.S. Supreme Court. 30 June 1994. 22 Apr. 2007.
Mill, John S. "Exerpts." On Liberty. 22 Mar. 2007 ‹ http://www.csulb.edu/~jvancamp/free/excerpts.htm › .
Miller v. California. No. 413 U.S. 15. U.S. Supreme Court. 21 June 1973. 20 Apr. 2007.
R.A.V. V. St. Paul. No. 505 U.S. 377. U.S. Supreme Court. 22 June 1992. 25 Mar. 2007 ‹ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377 › .
Smith v. Collin. No. 439 U.S. 916. U. S. Supreme Court. 16 Oct. 1978. 26 Mar. 2007 ‹ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=439&invol=916 › .
United States V. Watts. No. 394 U.S. 705. U.S. Supreme Court. 21 Apr. 1969. 28 Mar. 2007.
Virginia v. Black. No. 01-1107. U. S. Supreme Court. 7 Apr. 2003. 23 Mar. 2007 ‹ http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=01-1107 › .
Walker, Samuel. Hate Speech: the History of an American Controversy. Lincoln, NE: University of Nebraska P, 1996. 1-217.