Hate Speech Constitutionality of hate-speech laws and legislation

College campus hate-speech codes,

Fighting words; hate symbols

State interest in regulating hate-speech,

Arguments for and against such laws and codes,

First Amendment protection of unpopular or offensive speech,

Sentence enhancement for bias motivated crimes,

Supreme Court handling of hate speech and hate crime issues

Constitutionality of hate-speech laws and legislation

The Constitution of the United States was drafted in 1787, ratified in 1788, and put into operation in 1789. The 10 amendments constituting the Bill of Rights were adopted in 1791. The first of these restricted the new government's powers with regard to speech and the press: 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.

Interpretations of the First Amendment are at the center of the legal debates about free speech and hate speech. Like many articles in the Constitution, the exact meaning of the first amendment and the implications it had for the founding fathers are unclear. It provides a general orientation for federal action, but just how it is to be made operational is open to discussion. The conclusion reached will depend on the overall interpretive framework one uses. These frameworks, in turn, will merge into one's political and social philosophy. For example, at the time of its adoption, many thoughtful people believed that government should not prohibit the publication of one's views but could and should punish some writers for the harmful effects of such publication. This view, while plausible, is not the dominant interpretation at the present time.

The Constitution does not offer a rationale or ground for a broad principle of free speech. Is speech to be unrestricted because efficient democracy requires it? Because it will facilitate the discovery of truth? Because people have a natural right to speak their minds? The Constitution itself offers little guidance. But the rationale may be crucial when applying the general principle to difficult cases. Again, the rationale is supplied by one's interpretive framework, which in turn is closely associated with one's political and social philosophy.

College campus hate-speech codes,

Many universities, under pressure to respond to the concerns of those who are the objects of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion or sexual orientation.

However, the First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government financed state colleges and universities amount to government censorship, in violation of the Constitution. How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied. Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech not less is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.

College administrators may find speech codes attractive as a quick fix, but as one critic put it: "Verbal purity is not social change." Codes that punish bigoted speech treat only the symptom: The problem itself is bigotry. The ACLU believes that instead of opting for gestures that only appear to cure the disease, universities have to do the hard work of recruitment to increase faculty and student diversity; counseling to raise awareness about bigotry and its...

Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence anyone. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, antiwar protesters, lesbian and gay activists and others fighting for justice.
Fighting words; hate symbols

The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New Hampshire, that intimidating speech directed at a specific individual in a face-to-face confrontation amounts to "fighting words," and that the person engaging in such speech can be punished if "by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace." Say, a white student stops a black student on campus and utters a racial slur. In that one-on-one confrontation, which could easily come to blows, the offending student could be disciplined under the "fighting words" doctrine for racial harassment.

Over the past 50 years, however, the Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that have come before it, since the incidents involved didn't meet the narrow criteria stated above. Ignoring that history, the folks who advocate campus speech codes try to stretch the doctrine's application to fit words or symbols that cause discomfort, offense or emotional pain.

Symbols of hate are constitutionally protected if they're worn or displayed before a general audience in a public place say, in a march or at a rally in a public park. But the First Amendment doesn't protect the use of nonverbal symbols to encroach upon, or desecrate, private property, such as burning a cross on someone's lawn or spray-painting a swastika on the wall of a synagogue or dorm.

In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based on their symbolism, which the ordinance said makes many people feel "anger, alarm or resentment." Instead of prosecuting the cross-burner for the content of his act, the city government could have rightfully tried him under criminal trespass and/or harassment laws.

The Supreme Court has ruled that symbolic expression, whether swastikas, burning crosses or, for that matter, peace signs, is protected by the First Amendment because it's "closely akin to 'pure speech.'" That phrase comes from a landmark 1969 decision in which the Court held that public school students could wear black armbands in school to protest the Vietnam War. And in another landmark ruling, in 1989, the Court upheld the right of an individual to burn the American flag in public as a symbolic expression of disagreement with government policies.

Historically, defamation laws or codes have proven ineffective at best and counterproductive at worst. For one thing, depending on how they're interpreted and enforced, they can actually work against the interests of the people they were ostensibly created to protect, because the ultimate power to decide what speech is offensive and to whom rests with the authorities the government or a college administration not with those who are the alleged victims of hate speech.

In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist defamation. But throughout its existence, the Act has largely been used to persecute activists of color, trade unionists and antinuclear protesters, while the racists often white members of Parliament have gone unpunished.

Similarly, under a speech code in effect at the University of Michigan for 18 months, white students in 20 cases charged black students with offensive speech. One of the cases resulted in the punishment of a black student for using the term "white trash" in conversation with a white student. The code was struck down as unconstitutional in 1989. These examples demonstrate that speech codes don't really serve the interests of persecuted groups. The First Amendment does. As one African-American educator observed: "I have always felt as a minority person that we have to protect the rights of all because if we infringe on the rights of any persons, we'll be next."

Speech codes, by simply deterring students from saying out loud what they will continue to think in private, merely drive biases underground where they can't be addressed. In 1990, when Brown University expelled a student for shouting racist epithets one night on the campus, the institution accomplished nothing in the way of exposing the bankruptcy of racist ideas.

State interest in regulating hate-speech,

On the face of it, the First Amendment applies only to the federal congress. It says nothing about what state or local governments may do to restrict speech or the press. Until well into the 20th century, this view of the First Amendment was dominant in the courts. State and local governments could and did take action to restrict speakers, books, films, newspapers, and so on. Restrictions could be based on content and other considerations.

The restrictions…