Living in the United States we enjoy many wonderful freedoms and liberties. Even though most of these freedoms seem innate to our lives, most have been earned though sacrifice and hard work.
Out of all of our rights, freedom of speech is perhaps our most cherished, and one of the most controversial. Hate speech is one of the prices we all endure to ensure our speech stays free. But with hate speeches becoming increasingly common, many wonder if it is too great of a price to pay, or one that we should have to pay at all.
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.
When the framers of the constitution penned these 45 words could they have known the extent that they would be studied and scrutinize? Are the words meant to be taken literally or is it the "spirit" to them that is most important? Many views exist and are hotly debated, but most agree that this amendment has enabled some of the best things in the history of our country to be said; and ultimately done.
However it has also enabled some of the worst.
When discussing hate speech one has to address fighting words. Fighting words are words that the Supreme Court believes that even the mere utterance of them will inflict injury or incite an immediate breach of the peace. The court also believes these words are unnecessary for anyone to use, and that even if they were not used someone could still express their ideas.
Historically some hate speeches have contained fighting words, but they are view by the court as a separate entity. Fighting words are often classified as having absolutely no social value, and are not protected by the first amendment. In this regard I think that hate speech and fighting words are very analogous to indecent and obscene material. While indecent material might be frowned upon it is constitutionally protected, as where obscene material (also classified as having no social value) is not.
This distinction was first made in the early 1940s in the Chaplinsky case.
Chaplinsky was a Jehovah' s Witness, and one day while doing some face-to-face confrontations as part of his religious practices, an angry crowd formed. When an officer stepped in to break it up, Chaplinsky called him a "God-dammed racketeer" and a "dammed fascist". After a conviction in a lower court for offensive speech, and an affirming decision by the Supreme Court, the fighting words doctrine was born.
It is worth noting that the fighting words doctrine has not been extended to written works. If someone were to put the exact same thing in a book or an advertisement it could not get the fighting words classification. This is because the expression needs to "incite an immediate breach of peace" and to date no written material has lived up to this standard; the court is looking for a true "verbal attack".
It would seem that in the wake of the Chaplinsky ruling that a hate speech would be a very difficult, if not impossible thing to pull off. So how can the Ku Klux Klan have a rally two days before Martin Luther King Day? And according to one Klan leader, "Protesting the holiday and "Celebrate Robert E.
Lee's birthday and talking about Americanism, as opposed to Karl Marx and the philosophy of Martin Luther King. We'll also talk about American sovereignty, imbalance in immigration and the loss of jobs to immigrants," (Associated) Surely during a gathering like this there will be a lot more offensive things said than someone being called a dammed fascist.
The reason groups can get away we these types of meeting has made possible in part by the decision in the case Village of Skokie v. National Socialist Party (1978)
Most hate groups look to schedule rallies and marches in sensitive locations that will be the most offended by their presence, trying to get maximum impact. During the 1970s a neo-Nazi group called the National Socialist Party, scheduled a march in the predominately Jewish community of Skokie Illinois.
In attempts to block the group Skokie was one of many communities that had made laws tailored towards stop groups like the National Socialist Party, but these laws for the most part were found to be in violation of free speech rights. When the Supreme Court ruled in the Skokie case they said that one of the main reasons the National Socialist Party rally was protected by the first amendment, and not classified as fight words was because they had announced their plans in advance, and "a speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen." This is a key point because in a sense it gives carte blanch to any group who simply announce where and what will be said. These days it is not uncommon to see even the most obscure hate group make a public relations- style press release months in advance.
Other issues that often get associated with these laws are that of flag burning, and cross burning. "Symbolic expression" is a phrase often used to describe expression that is mixed with elements of conduct, and pose the question can an action be hate speech? The Supreme Court has made clear in a series of cases that symbolic expression (or expressive conduct) for the most part will be protected by the First Amendment.
Several of these cases have been highly controversial; recently it has been Black v. Virginia (2001).
In 1998, Barry Elton Black organized and led a Ku Klux Klan rally in Carroll County, Virginia. At the rally speeches with laden with racial, ethnic, and religious bigotry were made. The grand finale of the event was the burning of a cross 30 feet tall, while listening to Amazing Grace (Fein).
Afterwards Black was convicted under the states cross burning statute, but the Virginia Supreme Court promptly reversed the conviction. The court ruled that the state's cross burning laws engaged in content-base restriction which is impermissible under the first amendment. In writing the courts opinion Justice Lemons said, "This goes beyond content restriction, these laws are intended for view-point restriction."
In another recent case, Texas v. Johnson (1989), we see that for better or for worse, flag burning usually receives the same protection as burning crosses.
During the 1984 Republican National Convention in Dallas Texas, Dorsie Lee Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed.
However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court said that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction.
Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.
In post 9/11 America, flag burning is proving to be an unpopular act. Many people feel that a constitutional amendment that prohibits flag burning, despite its content-based restriction, would not be a threat to our liberties. A poll by the Citizens Flag Alliance claims that three of four Americans want the amendment and believe that the Senate should debate it this session.
They continue saying "Burning the American flag is not "speech" as defined by our Constitution. Since 1996, there has been a 23 percent increase among those who regard the flag as a unique symbol, from 67 percent to 90 percent; and 50 percent of our people value the flag more after September 11. That figure rises to 59 percent of men and a remarkable 70 percent of women ages 18 to 24." (Fales 11) I think the most interesting findings in this poll is that 18-to 24-year-olds now share the same passion for the flag as the "Greatest Generation.
" And, among the young, women are the most pro-flag of any group.
The continuing growth in popularity of the World Wide Web has given hate mongers a new medium to espouse ideas, reach potential new members and easier communication between each other. In fact the new web portal Front 14 offers free web hosting and e-mail exclusively to "Racialists" and explains that "Many White people don't have the time and energy to put into hosting their own domain, so they join Geocities, Angelfire, etc, in an attempt to get their voices heard. But these "free" services (who bombard you with ads) have adopted an aggressive anti-White policy. We decided to provide an alternative to proud White men and women, one that would be for our White interests only.
"
One of the newest trends in hate websites are called "stealth sites." With more and more people using the World Wide Web to conduct research extremist are capitalizing on the trend. People using Google as search engine doing a report on Martin Luther King may get linked to www.martinlutherking.org. This is a site ran by authors with ties to neo-Nazi organizations, the Ku Klux Klan and the white-power movement (Rodrigues 15).
The site is called a "stealth" site because it appears to be a legitimate informational site, it has a clean professional layout, and the language at first is subtle, but gets progressively more scathing, eventually making all kinds of outrageous claims. No one that I showed the site to notice its true nature, everyone had to have it pointed out to them. There are no concrete numbers available on how many hate site are on the internet. Because most hate site authors crave anonymity, sites are next to impossible to track. One site I found aptly named the Hate Directory, list links to hate websites and currently has over 3000 listings.
I think theses sites are very important when considering hate speech. The main motivation for groups to deliver a hate speech is to disseminate an idea. Now with the World Wide Web as a resource, a group can now reach more people, cheaply and secretly than ever before possible.
When looking at the Supreme Courts past rulings on hate speech it is clear that it is not going away anytime soon.
With law makers not wanting to risk the integrity of the first amendment to stop hate speech, and technology making easier for hate groups to operate, many people are looking at alternative measures to try and stop hate speech. One of the most common is counter rallies. At most major hate-group rallies these days there is usually an opposition group present. However according to Joe Roy, director of the Intelligence Project at the law center in Montgomery, Alabama, this might not be the most effective technique. While it's important to voice an opposing viewpoint, Roy said, it does no good to get into a shouting match. "If you holler and shout, you might as well put on a robe,"
Roy said he's talked to law-enforcement officials across the country.
He's learned what happens in a lot of communities: 300 demonstrators show up, and the police have to referee between the two groups. Invariably, he said, police complain that the counter protesters are the main problem. In the end, it can cost the community hundreds of thousands of dollars (Taylor 3). Instead of a counter protest, the law center suggests creating an alternative outlet for people's anger and frustration over the rally. "What works best is getting everyone together religious groups and others in the community for some sort of gathering the same day somewhere else.
It could be a concert, a parade or whatever the community's residents think is appropriate. That kind of gathering offers an opportunity for people to talk about something other than the Klan. It also shows the outside world the community does not condone Klan activity."
Perhaps in the end all we can really do it to try and come to terms with hate speech on a personal level. I believe 100 percent in the first amendment, and I look at having to tolerate hate speech as a price I have to pay for enjoying such a wonderful freedom. I don't think it would be effective or warranted to limit the peoples freedom in attempts to try and stop the despicable practice of hate speech.
Works Cited
The Associated Press State & Local Wire, January 7, 2002.
Fales, John The Washington Times, Pg. 11 September 2, 2002.
Fein, Bruce The Washington Times, August 6, 2002.
Rodrigues, Janette The Houston Chronicle, Pg. 15 January 17, 2001.
Taylor, Lynda Guydon The Pittsburgh Post-Gazette, Pg. w3 June 24, 2001
Cases Sited
Black v. Virginia, 262 Va. 764, 553 S.E.
2d 738 (2001)
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Texas v. Johnson, 491 U.S.
397 (1989)
Village of Skokie v. National Socialist Party 373 N.E. 2d 21 (1978)
