Part 4: Should hate speech be a crime?
Perhaps the most contentious issue of free speech in the past few years is the move to restrict hate speech. Since such speech is motivated by anger or hatred, its very nature stems from vice. Several attempts have been made to regulate not only hate speech but to designate certain actions as hate crimes. The difference is whether or not it is speech or action motivated by hate. Hate crime laws often increase the penalties for crimes when they are motivated by hate. Hate speech codes are often found in universities as an attempt to combat, among other things, sexism, bigotry, homophobia, and racism on campus. We will discuss campus hate speech codes in the next section. First, we should look at several Supreme Court cases involving hate speech/hate crimes.
R.A.V. v. City of St Paul
WEBLINK: Click to read the case R.A.V. v. City of St Paul
In this case some youths made a makeshift cross out of a broken chair and burned it on the lawn of a black family in the middle of the night. Although they could have been prosecuted for trespassing, they were instead charged with an ordinance that read:
Whoever places on public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika,
which one knows or has reasonable grounds to know arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender commits disorderly conduct and
shall be guilty of a misdemeanor.
Similar to hate speech/crime laws and codes, this ordinance targeted the motive of the actor rather than the act itself. However, this led the Supreme Court to overturn this ordinance on the grounds that it was a law targeting specific messages of speech and not just the manner of the speech. Since the law targets only speech aimed at "race, color, creed, religion and gender" and not all speech, it was clearly targeting the content of the message rather than the manner in which the speech was expressed. This decision, though consistent with prior Supreme Court rulings in that you can restrict the manner but not message of speech, creates a problem for any attempt to regulate hate speech or hate crimes as they also target the message of speech. One way to avoid this problem is to employ the concept of "fighting words" to combat hate speech. The case of Collin v . Smith is one such example.
Collin v. Smith (also known as Village of Skokie v. National Socialist Party)
WEBLINK: Click here to read the Collin v. Smith case
In this case the American Nazi Party wanted to hold a march in Skokie , Illinois . Skokie was the home of 40,000 Jews, several thousand of whom were survivors of Nazi concentration camps. The city was unable to stop the march but was able to get a court to ban the display of the swastika during the march on the grounds that the display of the swastika in Skokie constituted "fighting words." (Marching a swastika through a Jewish suburb would be like the Ku Klux Klan marching through Harlem ; we would expect a violent response.) The Nazis went to the state Supreme Court, which ruled that the city could not ban the swastika because it did not qualify as fighting words to the "ordinary citizen." This is an odd consequence of the Cohen decision because, though the "ordinary citizen" may not react violently to a swastika, the ordinary citizen is aware that a concentration camp survivor would likely react violently to the swastika.
Still, the reasoning in the Skokie case was also applied, in part, in R.A.V. v. City of St. Paul and Texas v. Johnson (the flag burning case). In both of these cases, the court ruled that neither activity would necessarily spark a violent response in the ordinary citizen.
Thought Question
What words would spark a violent response in the ordinary citizen?
Given the court rulings in these cases, nothing targeting a specific race, gender, ethnicity, ideology, or sexual orientation would qualify as those are specific groups, not an "ordinary citizen." What then can I say to anyone which we can reasonably expect a violent response?
Taken together Collin v. Smith and R.A.V v. St Paul create a sizable challenge to attempts to prohibit hate speech. As hate speech targets a specific group and not an "ordinary citizen" it is difficult to employ fighting words to justify a restriction. Nor can we limit hate speech by targeting its content. This does not mean that all hate speech is legally allowable. The case of Virginia v. Black demonstrates how at least some forms of hate speech can be restricted.
Virginia v. Black
WEBLINK: Click here to read the case Virginia v. Black
This case involved the state of Virginia 's attempt to regulate cross burning. The statute in question read:
"It shall be unlawful for any person or persons, with the intent of intimidating any person or
group of persons, to burn, or cause to be burned, a cross on the property of another, a highway
or other public place. Any person who shall violate any provision of this section shall be guilty
of a Class 6 felony."Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or
group of persons."
Mr. Black led a rally in which a cross was burned, which lead to his arrest, prosecution, and conviction. The case (like so many of these cases) ended in a divided court which made two points of interest.
- It is constitutional for a state to prohibit cross burning when it intends to intimidate others. This is a content-neutral restriction because it is a limitation upon intimidation regardless of who is intimidating or what the message of the intimidator is.
- It is unconstitutional for a state to consider all cross burnings as inherently intimidating. Certainly there are contexts in which a cross burning is done to intimidate, but there are others where it is not.
As a result the court allowed that cross burning, typically cited as a form of hate speech, can be restricted in contexts where it is done with the intent to intimidate. Yet, at the same time, the court overturned Mr. Black's conviction as it was never proven that his particular cross burning was an attempt to intimidate. One other case where the courts have upheld attempts to restrict hate speech/crimes is Wisconsin v. Mitchell.
Wisconsin v. Mitchell
WEBLINK: Click here to read the Wisconsin v. Mitchell case
This case involved an assault on a young man by group (including Mitchell) who assaulted him strictly because of his race. Where the ordinary punishment would have been a maximum of 2 years, Mitchell was given 7 years due to a provision which increased penalties when someone "intentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . ." Mitchell attempted to appeal his conviction and succeeded in the Wisconsin Supreme Court which held the provision was targeting "offensive thought" in that two assaults are punished differently just because we disapprove of what was in one assaulter's mind more than the other's.
The U.S. Supreme Court overruled the Wisconsin Supreme Court, holding that it was permissible for Wisconsin to increase the penalties for crimes motivated by bias. The Court found that this case was different from R.A.V. in that the law in R.A.V. was targeting the content of speech whereas the law in Mitchell was targeting the motive for action. In other words, Mitchell was not a free speech case because there was no speech involved, there was only Mitchell's criminal actions and his motives. The Mitchell case then allows for increased punishments for "hate crimes" just as the Black case allows for a restriction on "hate speech" intended to intimidate.