VICE, CRIME, AND AMERICAN LAW

Of all the Supreme Court decisions we have looked at, perhaps the most referenced was the R.A.V. decision written by Justice Scalia. As we have read, this decision had a huge impact on hate speech laws, making it more difficult for them to pass constitutional challenge. This decision is not without its critics. In "Words Which Wound" Masuda and Lawrence offer a challenge to the R.A.V. ruling. Below is a paraphrase of their arguments.

Masuda and Lawrence: "Words Which Wound"

The thesis of this article is that Justice Scalia's majority decision in the R.A.V. vs. St. Paul case was wrong. In deciding the case in favor of St. Paul , the Minnesota Supreme Court said:

"Burning a cross in the yard of an African American family's home is deplorable conduct that the City of St. Paul may without question prohibit. The burning cross is itself an unmistakable symbol of violence and hatred based on virulent notions of racial supremacy. It is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear" (pg. 269)

The Minnesota court relied upon history which clearly tells us the intent, meaning, and intimidating effect of R.A.V.'s actions in determining that this "method" of speech (not content) was objectionable. Scalia seems to ignore this history and the actual impact upon the Jones family, who awoke to find a cross burning in their lawn just two weeks after moving into an all-white neighborhood. Given the history, context, and effect of R.A.V.'s actions it should be clear that any "message" he had to express was secondary to the terror, offense, and intimidation hoisted upon the Jones. The St. Paul ordinance did not restrict hateful content, but instead restricted a "hateful manner" of speech. Just as I can express my utter disdain for you, but not by using "fighting words," so too could R.A.V. have expressed his racial hatred in a non-hateful way.

Scalia's opinion casts R.A.V. in the role of victim of state discrimination against his minority viewpoint. Scalia does so without any consideration of the real victim of this case-the Jones family. The First Amendment should be viewed as an attempt to maximize public discourse. Given the nature of hate speech-terrorizing and intimidating groups-it should be clear that protection of hate speech is contrary to the goal of the First Amendment. A restriction on hate speech will only serve to enhance public discourse. 

Hypothetical Case: Imagine two classrooms, both dedicated to "free speech" and the goals set out by Mill. In classroom X, all students are free to express any viewpoint they wish, including insulting others and attacking them personally. In classroom Y, all students are free to express any viewpoint they wish, but they are required to do so civilly, without insults or personal attacks on others. Which classroom is best conducive to promotion of free speech?

Another area where hate speech has created controversy is on college campuses around the country. Some instances of hate speech on campus as compiled by Charles R. Lawrence III in his article "If He Hollers Let Him Go: Regulating Racist Speech on Campus" include:

• University of Michigan : "Greek Rites of Exclusion." Racist leaflets in dorms, white students paint themselves black, and place rings in their noses at "Jungle parties."
  
  
• Northwest Missouri State University : White Supremacists distribute flyers stating, "The Knights of the Ku Klux Klan are Watching You."
  
  
• Temple University : White Student Union Formed.
  
  
• Memphis State University : Bomb Threats at Jewish Student Union.
  
  
• Dartmouth College : Black professor called "a cross between a welfare queen and a bathroom attendant" and the Dartmouth Review purported to quote a black student, "Dese boys be sayin' that we be comin' here to dartmut an' not takin' the classics."
  
  
• Purdue University : Counselor finds "Death Nigger" scratched on her door.
  
  
• Smith College : African student finds message slipped under her door that reads, "African Nigger do you want some bananas? Go back to the Jungle."
  
  
• University of Michigan : Campus radio station broadcasts a call from a student who "joked": "Who are the most famous black women in history? Aunt Jemima and Mother Fucker."
  
  
• University of Michigan : A student walks into class and sees this written on the blackboard: "A mind is a terrible thing to waste-especially on a nigger."

It is instances like these (and many others) that motivate many to seek "hate speech codes" at universities to protect students from such a hostile environment. Though several authors advocate pro or con positions, perhaps Andrew Altman's work is the most balanced in its approach. His arguments are summarized below.

Andrew Altman: Liberalism and Campus Hate Speech

Conservatives, and many liberals, have held that hate speech restrictions are illegitimate because they are not "viewpoint-neutral" rules of speech. If there is an error here, it is that they do not allow at least some restrictions on hate speech. Other liberals favoring such hate speech codes perhaps err in being overbroad on what can be restricted. Altman attempts a middle ground in which some hate speech can be criminalized but restricts these to a minimum.

On many college campuses speech codes provide for disciplinary action for those who make racist, sexist, homophobic, or some similar types of expression.

For example, at Stanford speech must meet three conditions to be actionable:

1. Intent to insult or stigmatize based upon race, gender, or sexual orientation.
2. Speech is addressed directly to those stigmatized.
3. Speech must employ epithets or terms that convey "visceral hate or contempt" to those addressed.

Compare this to the overly broad rules at the University of Connecticut :

"Every member of the University is obligated to refrain from actions that intimidate, humiliate or demean persons or groups that undermine their security or self-esteem." This would include "making inconsiderate jokes... stereotyping the experiences, background, and skills of individuals, ... imitating stereotypes in speech or mannerisms [and] attributing objections to any of the above actions to 'hyper-sensitivity' of the targeted individual or group."

Though the first code is significantly narrower than the second, both violate the liberal idea that speech codes ought to be viewpoint-neutral. Even the Stanford code is based in the idea that racist, sexist, and homophobic attitudes are morally wrong (or inferior). As such, there is a prima facie reason to reject both codes. Of course, many liberals still attempt to justify such codes on the grounds of psychological harms that hate speech inflicts upon its victims. One method of doing this draws on a comparison between the harms of the speech and the value of the speech. 

For example, compare the harms associated with, and the value of allowing the following hateful expressions:

First , imagine a KKK rally or hateful speech expressed scientifically, philosophically, religiously, or politically. Such speech may still cause psychological harm, but is (as Feinberg would say) easily avoidable. It also contains values we traditionally protect such as the right to rally, freedom of religion or of scientific, philosophical, or political freedom.

Second , take the case of the racist who writes: "African monkeys, why don't you go back to the jungle?" on the bathroom mirror of an African American's dorm room. This action causes psychological harm to the viewer who is directly targeted (and cannot easily avoid the display). Furthermore, it is done in a manner that does not possess the values mentioned in the first case.

As such, many liberals wish to uphold restrictions on cases like the second, while protecting the first type of expression. Does this utilitarian argument for minimal hate speech regulations persuade you?

Altman, who does not support this utilitarian restriction, finds that there is an alternative justification for holding that hate speech codes, despite not being "viewpoint-neutral," should be upheld. The reason that racist, sexist, and homophobic speech is thought to be immoral is that it is a method of subordinating these groups. In other words, these forms of speech are attempts to deny persons of their equality of moral standing. This is what hate speech codes should target-the preservation of equal standing in discourse. Just as we prohibit discriminations of employment and housings, minimal hate speech codes (such as Stanford's) prohibit discrimination of equal standing in university discourse. Such codes should never be mandatory, but if a university chooses a minimal code, that should be protected (although the courts have struck down several universities' hate speech codes around the country).

Notice, this view only allows prohibitions against speech that deprives others of moral equality (racism, sexism, and homophobia qualify) but does not allow prohibitions upon offensive or insulting displays (fat ass, slob, pig, etc.) as these do not deprive one of moral equality like the others. Are you persuaded by Altman? What objections to speech codes such as Stanford's might be offered?

 

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