POLITICAL DEBATE

A CONSTITUTIONAL RIGHT TO EXPRESS HATEFUL IDEAS?

Throughout American history, the issue of whether the First Amendment protects offensive, incendiary, or hateful expression has been a difficult one. Freedom of speech is a hallmark of American democracy. Another hallmark has been the diversity of Americans with regard to ethnicity, nationality, religion, culture, and so on. Such pluralism has stimulated greater sensitivity to others and their claims for equal treatment and social justice. But equally important, the widespread pluralism of the United States has given rise to divisiveness, prejudice, and intolerance. It has also created sharp political disagreement on issues relating to race, religion, gender, sexual orientation, and so on. In practice, Americans have been prone to censorship and persecution of persons expressing unpopular ideas, particularly the politically powerless. Recent government efforts to regulate racially and sexually incendiary speech have resulted in constitutional challenges to so-called hate speech codes. Not all speech is protected. For example, the Constitution does not protect physical threats, fighting words, seditious speech, sexual harassment, and so on. Such forms of expression are deemed to clearly threaten the rights, safety, or welfare of others. It is not enough, however, that the challenged expression is repulsive, offensive, insulting, or creates anger, alarm, or resentment. The First Amendment would be meaningless if only speech acceptable to the politically powerful was protected. Otherwise, the peaceful demonstrations during the Civil Rights Movement would not have been protected expression because many White Southerners perceived them to be offensive and insulting. 

A Right to Express Offensive Ideas

Since the 1940s, the Supreme Court has construed the First Amendment to broadly protect freedom of expression from government regulation. The justices have held that a person has a right to express political ideas and even offensive ones, unless such expression is almost certain to result in imminent danger. The justices have made a sharp distinction between fighting words and political expression that angers, challenges, and offends others. In Chaplinsky v. New Hampshire (1942), the Supreme Court held that fighting words do not convey ideas and therefore are unprotected speech. The case arose when Walter Chaplinsky, who was a Jehovah's Witness, was passing out literature on a street in Rochester, New Hampshire. The literature denounced other religions as "rackets" and offended several persons. A city marshal warned Chaplinsky that he was about to start a riot and told him to leave. Chaplinsky told the officer that he was "a Goddamned racketeer...a damned fascist, and the whole government of Rochester are Fascists." Chaplinsky was arrested and convicted under a state law for disturbing the peace. All the justices decided that his comments amounted to fighting words because they were directed at a particular person and constituted an invitation to brawl, "likely to provoke the average person to retaliation." The Court upheld his conviction on the theory that the First Amendment does not protect the use of fighting words because "their very utterance may inflict injury or tend to incite an immediate breach of the peace."

Seven year after Chaplinsky, the Supreme Court sharply narrowed the definition of fighting words. Terminiello v. Chicago (1949) Arthur Terminiello was an anti-Semite and suspended Catholic priest from Alabama. He addressed a right-wing extremist group called the Christian Veterans of America in a Chicago hall. Terminiello called the jeering crowd of 1,500 angry protestors outside the hall "slimy scum" and ranted on about the "communistic, Zionistic" Jews of America, evoking cries of "kill the Jews" and "dirty kikes" from his listeners. The crowd outside the hall threw bottles, bricks, and rocks while the police attempted to protect Terminiello and his listeners. Eventually the police arrested Terminiello for disturbing the peace.  Despite the incendiary nature of the speech, the Supreme Court overturned Terminiello's speech on the basis that provocative speech, even speech that stirs people to anger, is protected by the First Amendment. "Freedom of speech," wrote Justice Douglas, "though not absolute...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." The justices were no longer willing to allow the state to punish someone for merely shouting obscenities at public officials.

The Supreme Court continued to reaffirm the principle that the First Amendment protected offensive speech. In Brandenburg v. Ohio (1969), the Supreme Court extended freedom of speech to racists expression. The case involved Clarence Brandenburg, the leader of the Ohio Ku Klux Klan, had been convicted under a state law for advocating racial strife at a rally. His comments were filmed by a local television crew and included threats against public officials. The justices unanimously reversed his conviction because the state failed to prove that there was a clear and probable danger to the safety or rights of others. The Court held that offensive speech is protected by the First Amendment unless government can prove that such advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg offered wider latitude for freedom of expression. Speech could only be interfered with when the state could demonstrate (a) an intent by the speaker to incite imminent danger and (b) a likelihood in the listeners of producing imminent danger.

Another leading case involving offensive speech is Cohen v. California (1971). The case arose one evening during the late sixties when Paul Robert Cohen, a nineteen year old department store worker, attended an antiwar rally. At the meeting, a person painted the words "Fuck the Draft, Stop the War" on the back of his jacket. The next day Cohen wore the jacket into the hallway of the Los Angles County Courthouse. He was arrested, convicted, and sentenced to thirty days in jail under a California breach of the peace statute for engaging in offensive conduct. His conviction was later overturned by the Supreme Court. Speaking for the majority, Justice John Marshall Harlan recognized that the state can only regulate speech which threatens the safety or rights of others. The majority held that the First Amendment protects the use of expletives to express political ideas. Justice Harlan held that Cohen's message was provocative, but not directed at any particular person with the intent to provoke violence. The majority was unwilling to allow California to censor his message simply on the basis of offensiveness because "one man's vulgarity is another's lyric." Defending freedom of speech, Justice Harlan concluded that "the constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the area of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests."

Another important area of offensive expression has involved flag desecration. The United States flag  is an object of deep veneration for most Americans. It is a symbol of nationalism and patriotism, but also a symbol of freedom to disagree with and challenge the state. The Supreme Court has struck down numerous statutes that prohibit persons to disrespect, deface, or cast words of contempt on the American flag. In Texas v. Johnson (1989), the Supreme Court went even further and held that a person has a right to burn the American flag. The case arose when Gregory Lee Johnson stood in front of the Dallas City Hall, doused an American flag with kerosene, and set the flag on fire while chanting "red, white, and blue, we spit on you." He was arrested and convicted for flag desecration, and sentenced to serve one year in prison and pay a five thousand dollar fine. By a five-to-four vote, the Court overturned his conviction and held that flag burning was a form of symbolic speech protected under the First Amendment. Congress then attempted to overcome the Johnson decision and enacted the Flag Protection Act of 1989. Once again, the Supreme Court struck down the federal flag burning statute. In United States v. Eichman (1990), the majority reaffirmed that the First Amendment broadly protects expressions of political ideas. It held that "if there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering." Even though offensive to most Americans, the Court decided that the First Amendment protects flag burning as a form of political expression. Brandenburg, Cohen, Johnson, and Eichman firmly established the principle that the First Amendment protects a person's right to politically challenge, anger, and even offend others.

A Right to Express Hateful Ideas

In recent years, some municipalities have enacted criminal laws to combat hate speech targeted at women and minorities. Such laws are designed to ensure some minimum level of civility within places where people of diverse backgrounds must interact together. In R.A.V. v. St. Paul (1992), the Supreme Court confronted the issue of whether hate speech is protected under the First Amendment. At issue was a St. Paul, Minnesota law punishing anyone who displays symbols attacking people because of their "race, color, creed, religion, or gender." Several St. Paul teenagers had burned a cross in a yard of a black family. The defendant was arrested and convicted under the law. All nine justices held that the statute violated the First Amendment, but they were divided on the question of why. Four of the justices believed that the law was overbroad, using general language reaching beyond the narrow confines of unprotected speech such as fighting words or seditious speech. But the majority of five justices believed that the state statute amounted to content or viewpoint discrimination. Justice Scalia explained that the law prohibited only speech that attacks people because of their "race, color, creed, religion, or gender," and therefore, regulated speech "solely on the basis of the subjects the speech addresses." He concluded that the state may not single out specific categories of speech for prohibition because the state would be deciding which sorts of viewpoints deserve to be protected under the First Amendment. All the justices recognized that Minnesota could have prosecuted the defendants for trespass or terrorist threats, but not for the expression of racially offensive ideas.

Perhaps the best antidote for hate speech is to invite more rather less speech. The government suppression of speech tends to make martyrs out of the speakers and pushes their ideas underground where they can spread out of control. It seems that the best way to counteract offensive speech is to remonstrate with the speakers and explain to society what is wrong with their ideas. British philosopher John Stuart Mills captured this idea when he contended that the protection of speech leads to a livelier perception of the truth from which society benefits. In the flag burning case, Justice Brennan underscored this justification for an open dialogue. He argued that "the way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. And precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by--as one witness did--according its remains a respectful burial." Indeed the free market place of ideas has historically placed offensive speech at the bottom because more respectful, unifying, and egalitarian ideas have proven to be superior and enduring.

Probably nowhere has the issue of hate speech provoked greater controversy than on college and university campuses. Institutions of higher education traditionally have cultivated an atmosphere of free inquiry and expression. They have allowed and even encouraged public debate to include a variety of viewpoints. But recent incidents of blatantly offensive speech on the basis of race, gender, and sexual orientation have motivated administrators, faculty, and students to consider the meaning of the First Amendment. Many state colleges and universities have adopted speech codes prohibiting and punishing hateful expression. The codes are based on the notion that students who hurl epithets or slurs at others are more interested in intimidation and harassment than public education and debate. Such expression threatens to undermine public education, which requires an atmosphere of civility, tolerance, and dialogue. Given the obligations of higher education, state colleges and universities have a responsibility to strike a careful balance between allowing the free exchange of ideas while overcoming bigotry and stereotyping.  

Can colleges and universities punish students for insulting others because of their race, gender, or sexual orientation without circumventing the First Amendment? Do hate speech codes at institutions of higher education thwart the full examination of unpopular ideas and risk the suppression of freedom of speech? Or do hate speech codes promote civility on campuses and ensure the equal enjoyment of an inclusive learning environment for the victims of such insults? Is the state regulation of hate speech constitutionally different than malicious harassment directed at a specific individual on the basis of his or her race, gender, religion, or sexual orientation? If colleges and universities prohibit hate speech, then would relatively innocuous student references to men as male-chauvinist pigs or women as feminazis qualify as incendiary speech? Are there reasonable time, place, and manner regulations that could be imposed in classes and dorms without unduly restricting free expression?