Ariadne's Thread is designed to help you work out and defend your
own views on the complicated subject of hate speech. The focus
is chiefly on racist speech. Some fairly non-controversial history
and commentary may serve as an introduction. Even this history,
however, will show that what counts as hate speech is unclear,
the rationale for protecting it varies, and American courts have
been somewhat inconsistent in how they have dealt with the issues
over the last 50 years. At the very least, this history can clarify
some of the legal issues that must be resolved in order to develop
a reasoned position on hate speech. In addition, there are closely
related issues in moral and social philosophy that must be considered.
If we view the question on a broader scale, we discover that many
countries besides the United States have considered the problem
of hate speech, and some have adopted laws to restrict it. Even
some countries that have very few restrictions on speech in general
have adopted legal or constitutional restrictions on hate speech.
In other words, many countries regard hate speech as having an
especially poisonous effect on social life. In the United States,
however, we have tended toward another view that emphasizes the
value of unrestricted debate.
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.
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 of the First Amendment to the federal constitution
were not applied to state governments until years later when they
were gradually "incorporated" into the 14th amendment
that limits action by states. The 14th amendment was
adopted in 1868 and states that:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;…"
Incorporation expanded the meaning of "due process" and thereby limited what states could do to restrict speech. In Gitlow versus New York (1925) the Supreme Court decided that freedom guaranteed by the First Amendment could not be limited by the states.
The First World War forced both federal and state governments
to examine their ideas and policies on freedom of speech and association.
There was considerable opposition to American involvement in the
war; and as that involvement increased, several issues and organizations
emerged.
Did Americans have the right to speak and write against American
involvement even after war was declared? Did the federal government
have the right to draft men for military service? Could antiwar
and anti-draft organizations publish and use the mails to distribute
their literature? Could they urge men to resist the draft? The
older view of the First Amendment would allow for restrictions.
In 1917 the federal government passed the Espionage Act, which
made it a crime to "willfully obstruct the recruiting or
enlistment service of the United States." Amendments were
added in 1918 and referred to as the Sedition Act. These made
"disloyal" or "abusive" criticism of the government
illegal. In addition, the Postal Service attempted to suppress
antiwar and antidraft propaganda by banning it from the mails.
In some cases it confiscated the mail of organizations. Socialist
party leaders Charles Schenck and Eugene Debs were convicted under
the wartime acts for their opposition to conscription. An anarchist
named Jacob Abrams was convicted for distributing phamplets opposing
the United States military intervention in Russia after the Russian
Revolution.
The American Union Against Militarism (AUAM) was one of the organizations
that opposed United States involvement in the First World War.
The AUAM was especially concerned with the military draft established
during the war. It was also concerned with attempts by the Postal
Service to suppress publications that opposed American involvement
or war policy.
In 1917 the AUAM created the National Civil Liberties Bureau (NCLB).
The NCLB focused on protecting free speech during the war. At
one point, the federal government seized its mail and banned several
of its pamphlets. In 1920 the NCLB became the American Civil Liberties
Union. The ACLU has never argued that no speech whatever can be
constitutionally prohibited, but it has defended a broad definition
of free speech. In the 1920s, for example, the ACLU defended the
anti-Semitic newspaper published by Henry Ford against local restrictions.
It has been active at all judicial levels and has had considerable
influence on both court decisions and the development of First
Amendment legal doctrine. Samuel Walker has argued that the ACLU
has been successful in part because there was never an equally
well organized and persistently focused opposition.
At the time of the First World War, the Supreme Court was guided
by a less liberal interpretation of the First Amendment than the
one that was to develop later. In general, it took the view that
legislatures were within their rights to restrict speech and propaganda
that they believed to have dangerous consequences. In 1919 it
upheld the convictions of Debs, Schenck, and Abrams. Justice Oliver
Wendell Holmes put forward his "clear and present danger"
test in the Schenck case, but he and the other justices
upheld the conviction. In Abrams, however, he modified
his view and filed a dissenting opinion that extended the scope
of protected speech..
The dominant view of the courts changed in the mid-20th century.
State and local restrictions were prohibited and the range of
protected speech was expanded. In a series of Supreme Court cases,
speakers who deeply offended others or threatened to upset the
social patterns desired by others were protected by the courts.
This has resulted in the United States having one of the most
liberal policies in the world on free expression. On the other
hand, the Court has never held that the Constitution establishes
an "absolute" right to free speech. In other words,
it has never held that Americans have a right to say anything
at any time in any place. In general, it has protected some kinds
of speech (especially political speech) more than others (such
as obscene or commercial speech). It has also upheld reasonable
restrictions on the time and place of speech (including political
speech). The court has also relied heavily on a distinction between
speech and conduct. Although this distinction is not hard and
fast, there are clearly cases in which speech is a constituent
part of an otherwise illegal act such as price fixing. In these
cases, and others, the speech is not protected by the First Amendment.
Typically, the important free speech cases involved the rights
of minority groups: extreme anti-Semites, American Nazis, the
Jehovah's Witnesses, Communists, and members of both the Ku Klux
Klan and the National Association for the Advancement of Colored
People (NAACP). These cases often involved minority groups with
unusual ideas; but they were not always cases in which a minority
was in conflict with a majority. In some cases, the conflict is
between two different minorities. In some cases, both minorities
have been objects of discrimination in the past.
For example, the Jehovah's Witnesses often strongly criticized
the Catholic church. Catholics themselves were another, larger,
minority in the United States, and had experienced discrimination
themselves. Some of the Witnesses' activities were offensive to
Catholics, but were nevertheless protected by the courts.
Although American law moved toward a vastly more liberal idea
of free speech during the 20th century, you should keep several
things in mind when thinking about that trend.
First, the trend was not unbroken. Supreme Court cases generally
enlarged the area of protected speech, but not always.
Second, there are principles and arguments in some Supreme Court
cases that have acquired a somewhat doubtful status because of
later cases.
Third, the Court has never said that all speech is protected.
Political speech receives the highest level of pretection. Commercial
speech and obscene speech have never been given the same degree
of protection.
Fourth, there was nothing inevitable about the more liberal interpretation
of the First Amendment. Most countries, including most wealthy
democratic countries, have never developed as liberal a view as
the United States. As Samuel Walker points out in his history
of hate speech, our own results were influenced greatly by organized
argument and pressure. Different pressures might have produced
different results (and might do so in the future). The Supreme
Court has not always sided with the advocates of greater freedom.
In 1928, for example, the Court upheld a New York law that outlawed
parading with masks. The law applied to some organizations and
exempted others, depending on their purposes. It was clearly aimed
at the Ku Klux Klan.
In a different political situation, this interpretation of the
First Amendment might have prevailed.
One of the most significant free speech/hate speech cases arose
in 1977. The National Socialist Party of America (NSPA), led by
a man named Frank Collin, announced plans to march in front of
the Village Hall in Skokie, Illinois. Skokie had a large Jewish
population, including several thousand survivors of the World
War II holocaust in Europe. Village officials first obtained an
injunction against the demonstration. After the injuction was
reversed, the village enacted three ordinances to prohibit certain
kinds of demonstrations, including that of the NSPA. Collin sued
to prevent the ordinances from being enforced.
In Collin v. Smith (1978), the circuit court decided the case in favor of Collin. The court said, in part:
No doubt, the Nazi demonstration could be subjected to reasonable regulation of its time, place, and manner….Because the ordinances turn on the content of the demonstration, they are necessarily not time, place, or manner regulations….To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."
The court also commented on the obvious pain that the Nazi demonstration
would give to many of the residents of Skokie:
It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the Village's residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that "invite(s) dispute … induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
The court added that:
There is room under the First Amendment for the government to protect targeted listeners from offensive speech, but only when the speaker intrudes on the privacy of the home, or a captive audience cannot practically avoid exposure….
The Skokie case reaffirmed the First Amendment doctrine that had
developed over the preceding decades. One of the most important
elements of that doctrine was the notion that restrictions on
speech could not be content or viewpoint based. Since the Skokie
decision, however, a number of powerful criticisms of standard
First Amendment doctrine have emerged. In 1993 two books appeared
that challenged the standard doctrine. These were Only Words
by Catharine MacKinnon and Words That Wound: Critical Race
Theory, Assaultive Speech, and the First Amendment, a collection
of papers by Mari Matsuda, Charles Lawrence III, Richard Delgado,
and Kimberle Crenshaw. These authors offered a mix of new and
traditional arguments. One of the novel arguments maintained that
in the case of hate speech the First Amendment conflicted with
the Fourteenth Amendment's guarantees of equality. In such a conflict
the First Amendment could not automatically be invoked as a trump
card. It was not a situation in which a fundamental right conflicted
with a desirable goal, but rather a conflict of two rights. Therefore
some balancing between equally important values was required.
In short, the First Amendment could be limited by the Fourteenth.
These authors were also skeptical about other elements of the
currently standard interpretation of the First Amendment, including
the stress on content neutrality, the distinction between public
and private action, and the distinction between speech and conduct.
After many Supreme Court decisions, hate speech continues to be controversial. Americans continue to debate questions such as these:
These questions continue to be debated with no sign of agreement. Ariadne's Thread may help you to develop your own views.
Reference: For a legal history of hate speech written from an ACLU perspective, see Hate Speech: The History of an American Controversy by Samuel Walker.