Hate Speech and the US First Amendment - Research Paper Example

Lecturer: Hate Speech and the United s First Amendment Introduction The United s under the First Amendment provides that the legislature shall not enact any legislation that may prohibit free speech or reduce the freedom of speech, press, and the right to assemble, or the right to petition the government for a redress of complaints presented to it (Schultz 279). The freedoms thus provided under the First amendment protects the freedom of free speech for the common good of the citizens by protecting their abilities of the people to collectively decide what they want and self-determine themselves. Hate speech can be defined as speech that threatens, offends or insults people amongst other detestable actions to the said groups on the basis of race, color, religion, sexual orientation or disability amongst other factors or parameters. The United States First Amendment gives people the right to speak even if the listener of the conversation does not agree with you or feels that the speech is hateful or offensive. The protection also covers even the most offensive and controversial speech from any suppression by the government and permits only minimum regulation of the same through limited circumstances. The basis of this is the understanding by the government that free exchange of ideas encourages the proper understanding of the masses and prevents falsehoods, and embodies the fact that the freedom of expression by an individual without the fear of being punished by the government promotes liberty for better governance. By allowing the citizens to express themselves and their opinions no matter the disagreements, the First Amendment has helped in the promotion of transparency and social stability in the American society (United States and United States Supreme Court, 10).This means that under the First Amendment of the constitution of the United States, hate speech is constitutionally protected unless it can be proven that the speaker of the assumed hate speech intended to act violently or provoke an immediate act of violence. The implication of this legal provision in the United States constitution is that a person may be charged with an offence related to hate speech only if the statements uttered by that person constitute a threat or provocation of immediate violence. It also means that even in cases where the speaker of the intended hate speech threatens violence or intended violence, he may only be criminally prosecuted if there is a law that is drawn to apply to the situation in an appropriate manner. The United States government though faced with problems in the definition of hate speech has always endeavored to create laws and policies that discourage indecent behavior as well as creating laws that though do not define hate as crimes or acts. This means that the law tends to regulate acts rather than speech as was evident in the case of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) where the US Supreme Court debated about the burning of cross by the radical Ku Klux Klan and whether it was a sign of hate speech (Gerstenfeld 10). The superior court in this instance overruled the Minnesota law which it found to be unconstitutional as it violated a youngster’s First Amendment free speech rights. In Wisconsin v. Mitchell, 508 U.S. 476 (1993) where a white boy was beaten by black teenagers, the debate about the magnitude of the penalty was ruled by the Supreme Court. It held that an increased penalty did not violate the free speech rights of an accused person and therefore the courts could enhance the penalty. From the foregoing discussion, it can be said that the United States constitution which defines hate speech as speech that maligns a person based on the parameters earlier mentioned receives the protection of the First Amendment. The upshot is that while the government restricts hate speech, it has a clear understanding that the most effective way of combating the vice is through tolerant and effective strategies to counter the hate speech. It therefore deploys an array of policies in the resolution of conflicts brought about by hate speech such as effective and controlled dialogue. This paper aims at examining the progression of American cases of hate speech and the protection offered by the United States First Amendment from the early nineteenth century to the present day America. Such will include the Brandenburg v. Ohio (395 U.S. 444 (1969) where the court addressed hate speech and broadened it into a constitutional speech. The paper also analyzes the R.A.V. v. City of St. Paul (112 S. Ct. 2538 (1992) case where the Supreme Court emphasized the freedoms and the right of expression. It further discusses recent jurisprudence in addressing hate speech and the legality of speech codes enacted in institutions as compared to the provisions of the First Amendment. Freedom of Speech and Hate Speech in the United States Right from the onset, it is important to note that the significance of the freedom of speech is enshrined vide the provisions of the First Amendment. Hate speech thrives on prejudice and is aimed at stigmatizing the targeted person and the society should thus be concerned of its consequences and the limitations (Cortese 30). As a society where hate speech is prevalent, most citizens in the United States have taken advantage of the protection of the First Amendment to participate in acts that border on hate speech. Despite the oft misconception that there is no hate speech exception to the First Amendment, the law prohibits hateful speech. Recognizing that there is no hate speech exception to the First Amendment, the American courts of law have made policies that limit the freedom of expression in what they describe as offensive speech (Edward, Martin and Robert 103). In the championing and upholding of the First Amendment, the courts have recognized that in a society that recognizes the rights and freedom of individual to express themselves in any manner, censorship or the coercive power of the state should be limited. However, since the coming into force of the First Amendment, the United States Supreme Court has always debated and made several decisions that define and makes the citizens understand hate speech as compared to the provisions of the First Amendment. In Terminiello v. Chicago (1949), the Supreme Court overturn the conviction of a priest arguing that the rights of the accused were protected against punishment or censorship unless there is likelihood that the utterances or the behavior of a person is likely to result to civil disobedience or evil (Rodgers 121). In Brandenburg v. Ohio (1969), the superior court overturned the conviction of a member of Klu Klax Klan arguing that the constitution guarantees free speech and press and the law cannot proscribe advocacy unless the advocacy is meant to incite or lead to an imminent lawless action (Schmidt, Mack and Barbara 75). In Virginia v. Black (2003), the Supreme Court through a slight majority held that while burning of a cross may be intimidating to a certain section of the masses, a ban on the public burning of crosses would be a violation of the rights enshrined in the First Amendment and that states can only prohibit intimidation that is likely to inspire the fear of bodily harm (Acker and JoAnne 198). The case of Snyder v. Phelps (2011) also showed that hate speech can be tolerated in the United States as the courts dismissed a case brought by an aggrieved party who claimed emotional distress by members of the Westboro Baptist Church. There are different perspectives for the regulation of hate speech which may either be through the libertarian and the communitarian approaches. The United States Supreme court has tended to adopt the libertarian approach where they focus on the freedom of speech which can only be limited if there are compelling reasons to do so. On a few occasions, it has adopted the communitarian approach which focuses on the fact that the well being of the community is of utmost importance and the freedom of free speech of an individual may be protected to protect the interests of the community as a whole. This is hinged on the belief that treating people through fairness and dignity epitomizes freedom of speech that at times may not warrant the regulation by the government. Current Situation of Hate Speech in the United States The United States is among the few democracies that do not punish hate speech in the strictest sense whether the hate speech comes in the form of a written or oral form (Maitra and Mary 52).This is against the normal knowledge that a well ordered society must protect every of its citizens through the law where acts such as hostility and discrimination amongst other hateful acts and utterances must be excluded at all costs. Hate speech should be taken seriously not withstanding the source for the public good and must not be tolerated even if it is not limited by the supreme law. Hate speech is mostly suffered by minorities especially on the basis of ethnic or race and undermines the self-esteem of a person as well as causing isolation that may result into violence. Hate speech also has the ability to cause displaced aggression, retreat, avoidance and other unwarranted acts and omissions. This is tragic in the current American society yet the First Amendment of the constitution protects the freedom of expression thereby guaranteeing the occurrence of hate speech. This guarantee provides that courts of law must protect all speech not regulated by time unless the speech is a threat thus placing higher standards of proof on the offended party. This presents a tricky situation that requires that the problem of hate speech is overcome through a context that relies on proof that the society is hostile and the victims of hate speech must be protected just as the freedom to express ones self is protected. In the United States currently, the law as made by the Supreme Court praised and emphasized the protected status of the citizens with regards to hate speech as granted by the First Amendment of the US Constitution. In essence, the law made in the Snyder case with regard to hate speech is that hate speech, no matter how offensive it may be in terms of offence or hurtful, is protected as long as it addresses a matter of public concern or concerns the rights of public citizens. However, there is now debate that stresses that no matter how the hate speech is, as long as it is outrageous, virulent and targets private individuals should not enjoy the protection of the provisions of the First Amendment. As much as federal courts have tried to uphold the challenges to regulation of speech mostly emanating from the institutions of learning, the Supreme Court has tried to bridge the gap of hate speech as enshrined in the First Amendment. In the absence of decisions by the Supreme Court, the challenges posed by the speech codes continue to be seen in both federal and municipal courts of law. The courts however give a lee way for carefully worded speech codes that may be constitutional and in tandem with the First Amendment (Allport 35). Claims that hate speech codes violate the First Amendment have been criticized by those who support restrictions on speech who argue that certain ideas that assert hate are undeniably bad. Such argument is usually premised on the genuine and trite observation that the First Amendment of the US Constitution should not trump the provisions of the Fourteenth Amendment that offers citizens protection of the law, but instead should uphold it to ensure every citizen enjoys some form of freedom. This is the guarantee that all citizens are entitled to equal protection of the law within the jurisdiction of the United States and its law enforcement agencies including the courts of law. Instead, the defenders of this notion argue that the rights and interests of the perpetrator of hate speech must be balanced against the interests of those to be targeted by the speech (Cole, Christopher and Christina 45). Speech codes can be developed that are consistent with the First Amendment by having policies that prohibit the hateful words such as the prohibition of hateful words. Based on the analysis of case law and the provisions of the First Amendment, most institutions proscribe hate speech through the context driven approach that may limit the protection of a person under the First Amendment. This approach reinforces the framework that provides that regulations must point to the behavior of a person and classify it as either severe or pervasive to create a hostile environment. This approach also allows for the creation of a forum that encourages free speech and answers it in the right way rather than restrictions to deal with offensive speech. It also advocates for the condemning of hate speech through moral force rather than restrictions as moral suasion is always attractive to most members in the society in America. This program must be specific in what words or phrases that can be classified as hate speech so that the courts may uphold the decisions of such quasi-tribunals. Relying on the decisions in Mitchell v. Wisconsin, courts can impose stiffer penalties for offences bordering on hate speech. In this, the Supreme Court has been forthright in allowing decisions that give higher penalties for crimes committed by those engaged in hate speech. The focus must be on the clarity of the context and that the speech was uttered by a reasonable person in his right senses. Conclusion Since the 1980s, courts in United States have made laws that attempt to regulate hate speech but the Supreme Court often invalidates such laws. As already suggested by cases such as R.A.V. v. City of St.Paul and Virginia v. Black, hate speech that includes insults, expressive conduct and epithets targeted at individuals on the basis of immutable parameters such as gender is a serious problem in the United States society. Hate speech can cause the stigmatization that may lead to psychological and physical damage to those affected and must be regulated at all costs. Although legal scholars and the courts of law have tried to develop theories on the relationship between hate speech and the First Amendment, there has been no success as it presents constitutional problems when challenged in courts. Future efforts in the regulation of hate speech especially in institutions of learning must endeavor to utilize the exceptions in the First Amendment to ensure the regulations are not rendered null and void. The Supreme Court in the United States has been presented with a classical case of a debate between the rights of the citizens as provided by the First Amendment and the need to have public order and decency. The struggle though playing out in several cases have brought controversy that the First Amendment is likely not to remedy the situation considering the fact that most of the attempts to challenge it are always overturned by the courts of law. Therefore, the debate between freedom and order in the society as contrasted with cases involved in hate speech and the First Amendment will go on as long as the law remains the way it is. Without clear provisions of the law, the courts will continue to side with the citizens in ensuring that the freedom of speech and expression is protected as opposed to order in the society. This has been manifested right from the initial case laws and the current case law as was held in the more recent Snyder case involving the Westboro Baptist Church. More debate should also be put on the relevance and constitutionality of speech codes and whether they can be codified into statutory laws that the courts can give meaning to and enforce them Works Cited Acker, James R, and JoAnne M. Malatesta. Introduction to Law and Criminal Justice. Burlington, MA: Jones & Bartlett Learning, 2013. Print. Allport, Alan. Freedom of Speech. Philadelphia [Pa.: Chelsea House Publishers, 2003. Print. Cole, George F, Christopher E. Smith, and Christina DeJong. Criminal Justice in America. Belmont, CA: Wadsworth Cengage Learning, 2014. Print. Cortese, Anthony J. P. Opposing Hate Speech. Westport, Conn: Praeger Publishers, 2006. Print. Edwards, George C, Martin P. Wattenberg, and Robert L. Lineberry. Government in America: People, Politics, and Policy. New York: Pearson Longman, 2008. Print. Gerstenfeld, Phyllis B. Hate Crimes: Causes, Controls, and Controversies. Thousand Oaks, CA: Sage Publications, 2004. Print. Maitra, Ishani, and Mary K. McGowan. Speech and Harm: Controversies Over Free Speech. Oxford, U.K: Oxford University Press, 2012. Print. Rodgers, Paul. United States Constitutional Law: An Introduction. Jefferson, N.C: McFarland, 2011. Print. Schmidt, Steffen W, Mack C. Shelley, and Barbara A. Bardes. American Government and Politics Today: Brief Edition, 2010-2011. Boston, MA: Wadsworth Cengage Learning, 2011. Print. Schultz, David A. Encyclopedia of the United States Constitution. New York, NY: Facts On File, 2009. Print. The Constitution of the United States of America: Analysis and Interpretation ; Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952. Washington: G.P.O, 1953. Print. Hate speech and hate symbols have been the topic of much discussion lately. What exactly is hate speech and how does it affect our First Amendment rights? Hate speech can be defined as speech that offends any group based on race, gender, ethnicity, religion or sexual orientation. Despite widespread public misconception, there is no "hate speech" exception to the First Amendment. "Hate speech" is speech, and as such, is protected under the First Amendment. Protection does not condone the use of hateful speech. As a civil society we should strive to follow the "Golden Rule" whenever possible. Perpetuating misinformation regarding the regulation of speech is misleading and harmful to our democratic republic which relies on an informed and engaged citizenry.In a desire to embrace diversity, many schools have attempted to regulate "offensive" speech through the adoption of speech, conduct and harassment codes. While intended to make "marginalized" groups feel more welcome, the unintended consequences of these codes is often the violation of individual First Amendment rights. This problem prompted the U.S. Department of Education, Office of Civil Rights to issue a 2003 memo to school administrators emphasizing that the First Amendment is of "central importance to our government, our heritage of freedom, and our way of life," and that "OCR regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." Although often ignored, the memo remains in effect today. Recognizing that there is no "hate speech" exception to the First Amendment, the courts have consistently struck down policies that have attempted to limit free expression on the basis of "offensive speech." In Nixon v. Northern Local School District Board of Education, a 2005 case argued in U.S. District Court for the Southern District of Ohio, the court rejected the school's argument that censoring a student's controversial religious T-shirt was permissible to protect the "psychological vulnerability" of students. The court held that "achieving free expression requires an open marketplace in which citizens are susceptible to varied viewpoints.schools are part of the market place, with students entitled to the privileges of citizenry." The court went on to state that high school students do not have a "right" to be sheltered from expression that may offend them, just as they will not have such a right once they leave school. K.D. ex rel. Dibble v. Fillmore Central School District, a 2005 case from the U.S. District Court for the Western District of New York, involved the banning of a student's pro-life T-shirt after several students complained that they were "upset" by the message on the shirt. The court struck down the ban, stating that "students do not have the right not to be 'upset' when confronted with a viewpoint with which they disagree." The court's opinion in the KD case rejected the notion that censorship of a message is justified simply because a student may find it to be offensive or upsetting. Most recently, the primacy of the First Amendment was upheld by the United States Supreme Court in the highly publicized 2011 case of Snyder v. Westboro Baptist Church. The case involved Westboro's picketing of the funeral of Matthew Snyder, a U.S. Marine killed in Iraq. During their protest, church members held up signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "Semper Fi Fags," and other similar slogans. Writing for the court in an 8-1 decision, Chief Justice Roberts said, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. ... We cannot react to [Snyder's] pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate." In upholding the First Amendment, the courts have recognized that in a society that champions individual freedom and the free and open exchange and debate of ideas, there is no place for censorship nor the coercive power of the state. Far better to rely on the disinfectant qualities of sunlight. When presented with hateful and repugnant speech, a free people have recourse to reason, debate, discussion, argument and outrage to discredit such speech. As John Milton, the 17th century English philosopher, argued, "let truth and falsehood grapple ... in a free and open encounter," and truth will triumph in the end. The freedom of speech guaranteed to all of us under the First Amendment is a precious thing. It is at the core of our civil society and is essential to protecting all of us from the arbitrary abuse of power. We would do well to heed the advice of Patrick Henry and "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." Hate speech and hate symbols have been the topic of much discussion lately. What exactly is hate speech and how does it affect our First Amendment rights? Hate speech can be defined as speech that offends any group based on race, gender, ethnicity, religion or sexual orientation. Despite widespread public misconception, there is no "hate speech" exception to the First Amendment. "Hate speech" is speech, and as such, is protected under the First Amendment. Protection does not condone the use of hateful speech. As a civil society we should strive to follow the "Golden Rule" whenever possible. Perpetuating misinformation regarding the regulation of speech is misleading and harmful to our democratic republic which relies on an informed and engaged citizenry. In a desire to embrace diversity, many schools have attempted to regulate "offensive" speech through the adoption of speech, conduct and harassment codes. While intended to make "marginalized" groups feel more welcome, the unintended consequences of these codes is often the violation of individual First Amendment rights. This problem prompted the U.S. Department of Education, Office of Civil Rights to issue a 2003 memo to school administrators emphasizing that the First Amendment is of "central importance to our government, our heritage of freedom, and our way of life," and that "OCR regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." Although often ignored, the memo remains in effect today. Recognizing that there is no "hate speech" exception to the First Amendment, the courts have consistently struck down policies that have attempted to limit free expression on the basis of "offensive speech." In Nixon v. Northern Local School District Board of Education, a 2005 case argued in U.S. District Court for the Southern District of Ohio, the court rejected the school's argument that censoring a student's controversial religious T-shirt was permissible to protect the "psychological vulnerability" of students. The court held that "achieving free expression requires an open marketplace in which citizens are susceptible to varied viewpoints.schools are part of the market place, with students entitled to the privileges of citizenry." The court went on to state that high school students do not have a "right" to be sheltered from expression that may offend them, just as they will not have such a right once they leave school. K.D. ex rel. Dibble v. Fillmore Central School District, a 2005 case from the U.S. District Court for the Western District of New York, involved the banning of a student's pro-life T-shirt after several students complained that they were "upset" by the message on the shirt. The court struck down the ban, stating that "students do not have the right not to be 'upset' when confronted with a viewpoint with which they disagree." The court's opinion in the KD case rejected the notion that censorship of a message is justified simply because a student may find it to be offensive or upsetting. Most recently, the primacy of the First Amendment was upheld by the United States Supreme Court in the highly publicized 2011 case of Snyder v. Westboro Baptist Church. The case involved Westboro's picketing of the funeral of Matthew Snyder, a U.S. Marine killed in Iraq. During their protest, church members held up signs that read "God Hates the USA/Thank God for 9/11," "Thank God for IEDs," "Semper Fi Fags," and other similar slogans. Writing for the court in an 8-1 decision, Chief Justice Roberts said, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. ... We cannot react to [Snyder's] pain by punishing the speaker. As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate." In upholding the First Amendment, the courts have recognized that in a society that champions individual freedom and the free and open exchange and debate of ideas, there is no place for censorship nor the coercive power of the state. Far better to rely on the disinfectant qualities of sunlight. When presented with hateful and repugnant speech, a free people have recourse to reason, debate, discussion, argument and outrage to discredit such speech. As John Milton, the 17th century English philosopher, argued, "let truth and falsehood grapple ... in a free and open encounter," and truth will triumph in the end. The freedom of speech guaranteed to all of us under the First Amendment is a precious thing. It is at the core of our civil society and is essential to protecting all of us from the arbitrary abuse of power. We would do well to heed the advice of Patrick Henry and "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." Read More