A Discussion on Hate Speech and the First Amendment Essay Example

cannot punish provocative speech unless it is directed to inciting and likely to produce oeimminent 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 actionl or oefighting words, l 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 ofighting wordsl and that the city statute provided a "compelling government interest in protecting the community against biasmotivated 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 ceis 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 cebadge of inferiorityl as a result of segregation despite how cequall 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 oebadge of inferiority.1 Lawrence counters the notion of hate speech being a œviewpointl in the omarketplace of ideasl by arguing that hate speech silences speech instead of promoting it, which consequently contradicts the ideology of the æmarketplacel 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 powerfull and second that words cannot be separated from actions, especially those based on sex.She, like Lawrence, reasons that, oespeech should be seen not just through the first Amendment but through a fourteenth Amendment "equality lens" as well. l MacKinnon acknowledges that, osocial life is full of words that are legally treated as the acts they constitutel and accordingly restricted such as æsaying “kill' to an attack dog, verbally fixing prices that defy antitrust laws, [and] displaying whites only' signs at public accommodations.

Thus, she argues, why shouldn't sexually oriented hate speech receive similar treatment as "not a mere expression of opinion but a practice of discrimination in verbal form"? Though their emphasis on the type of hate speech varies, Mackinnon and Lawrence nevertheless both share in the opposition to the argument that hate speech is merely an oidea1 in the oemarketplace of ideas.l For both, the damaged produced by hate speech outweighs any argument that one could produce in constitutionally protecting such

speech.R. A. V. v. City of St. Paul set the precedent that hate speech is constitutionally protected, however, in Virginia v. Black (2003) the U.S. Supreme Court upheld the constitutionality of a statute banning cross burning with the ceintent to intimidatel on the grounds of the long history associated with the action. However, in entirety, the Virginia statue was found unconstitutional due to a prima facie evidence provision (evidence that would, if uncontested, establish a fact or raise a presumption of a fact). Strong arguments have emerged from feminist and critical race theorist as well as from case law that hate speech needs to be restricted. The State Supreme Court in R.A.V. argued that hate speech was oefighting wordsl and consequently provided the government with a compelling interest to regulate on the behalf of public safety and order. Charles Lawrence and Catherine MacKinnon argued that hate speech should be restricted due to the damaged incurred by the recipients. In addition, they argued that hate speech is a practice of discrimination in verbal form and subsequently a violation of the equal protection clause in the fourteenth Amendment.

All these arguments attempt to latch hate speech into another category in order to provide a legal avenue to restrict it. Bridges are trying to be built between hate speech and ofighting wordsl or racial discrimination, but their foundation is weak. The right to the free exercise of expression is the true underlying ideology of what it means to be an American. Thus, in order to infringe upon this right, the interest has to be beyond compelling in my book. Some of the above arguments are appealing, but none prove

worthy. The states interest in regulating speech that are oefighting wordsl or produces oeimminent lawless actionl is reasonable in that some bare bones rules needs to exists to prevent the breach of peach. However, regulation of hate speech is nothing more than regulation of unfavorable views (Also to note, I view obscenity in a similar light). Hate speech is similar to all forms of speech. It is the expression of an idea. Though the idea itself maybe unfavorable in the eyes of the public, such speech is granted constitutional protection because the United States was founded under the notion that a truly free country is one in which ideas are not suppressed. Freedom of speech is one of the greatest attributes of this nation. Protection of speech is essential in order to allow different viewpoints to enter into the oefree marketplace of ideası, in which contrasting and similar ideas come into contact with another, so that the best idea[s] emerge. Additionally, speech is one of the most powerful tools a person possesses. If he cannot speak his mind, his power to enact change is lost. He who cannot vote has no power to check the government or society. The definition of hate speech is cebigoted speech attacking or disparaging a social or ethnic group or a member of such a group.l Such speech is clearly antagonistic among the public, hurtful, and in some cases damaging.

Nevertheless, hate speech needs to protected by the very notion of the principle. To tread down the path of restriction is against the foundational roots of the constitution and could lead to the slippery slope of totalitarianism. Every advance in restriction

may be a battle won among advocates of restricting hate speech, but however, in reality, we all will have obtained a loss for the public are giving away their power, the power of expression. Before jumping to the conclusion of giving up a portion of a fundamental principle, realize that there are other means to deal with, and, need be, restrict hate speech. There are numerous laws in place to protect citizen's rights that one can turn to, or in the case R.A.V. there are several other legal avenues one could take for criminal prosecution such as trespassing laws. We need to apply the principles suggested in the wise words of Justice Scalia in the R.A.V. case: "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." Fight speech with speech, but do not take the air from the lungs of the speaker. We need to cherish the value of expression and move away from the dangerous ideological rationale of restriction so that we don't fall down the slippery slope to a nation that polices unfavorable thoughts.