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During the past decade, while
Americans have come to grips with
"political correctness"1 with its euphemisms and code-words advocating widely accepted
attitudes concerning society, especially those involving women, gays, and
racial, ethnic, and religious minorities,
there has been an alarming increase in the
number of hate crimes frequently aimed at the very
groups that the politically correct seek to aid and comfort.2
States, cities, and university campuses responded with
a barrage of statutes, ordinances, and policies aimed at controlling
bias crimes. This response sparked a wide-ranging public debate concerning the
desirability and constitutionality of such
legislation. Since
the civil rights revolution of the 1960s, violence motivated by racial, sexist
and other biases has been condemned
vehemently by the American public. Yet the right to
free expression of ideas, no matter how distasteful or hateful,
is a fundamental constitutional principle.
Thus, hate crimes involving
elements of speech or expression
pose perplexing constitutional questions: whether, and why, should the U.S. Constitution be
tolerant of intolerance? When, and under what circumstances, do intolerant
expressions merit protection? And how can victims of
bias-motivated violence be protected while the rights of bigots to express their
beliefs also are protected? The answers to
these questions will provide clues as to what is now
the politically (or constitutionally) correct view of hate
crimes/hate speech.
PRINCIPLES IN THE DEBATE
Two principal historic
justifications for free expression come
into conflict in determining what to do about hate
speech.3 One justification, that of the "liberals," sees
free speech as an essential party of a free and just society
that treats all its members as responsible moral agents.
To the liberals, speech is valuable for its own sake.
From this perspective, speech is, for the most part, an
expressive act engaged in by individuals toward the end of the
individual's own self fulfillment. Liberals are admirers of
the free marketplace of ideas.
The other side, the
"progressive," justifies free speech on the ground that it serves a
greater good, and creates a better
country, helping to produce an informed electorate or a
more accountable government. For progressives, speech creates
a bond, a relationship, or a community that was not there
previously between speaker and listener or writer and reader,
the creation of which is both the primary purpose and primary
consequence of the speech.
From this perspective, hate
expressions inflict not only physical harm
but also unique psychic damage on victims. Because a hate crime is directed not only
at the individual victim,
but also at the group to which the victim belongs, such
violence tends to escalate from individual conflicts to mass
disturbances by exacerbating divisions among observers who
sympathize with either the victims or the attackers. Hate
crimes are of little positive value, and when they cause the
harm which is their primary purpose and most identifying consequence,
it is not at all obvious from this perspective, why
they should be protected. The progressive views that offense
as a serious anti-communitarian injury which sharply undercuts
the prima facie reason for protecting speech, and hence
a sufficient justification for its regulation.
PROTECTED AND UNPROTECTED
EXPRESSION
Protection of free speech rights
have deep roots in American history.
According to traditional libertarian views of the First Amendment there are at least
four bases for expression having immunity
from government regulation: 1. the search
for truth; 2. the promotion of democracy; 3. individual
self-fulfillment; and 4. the expression of natural or fundamental rights.4 Over the years,
the U.S. Supreme Court has affirmed these
principles in free expression cases. Although
the Court never endorsed Justice Hugo Black's preferred
position doctrine of First Amendment protections, it
gave its imprimatur to the idea that free speech is an essential
part of a free and just society. The Court also has found a number of exceptions
to the general principle that government
may not restrict expression on the basis
of its content. The theory that exceptions exist
for certain "low value" speech derives from the Court's assertion
in Chaplinsky v. New Hampshire that "certain classes
of speech are such slight social value as a step to truth that any benefit that
may be derived from them is clearly
outweighed by the social interest in order and morality."5
The Court has defined certain categories of such low-value
speech, described by Lawrence Tribe as "a patchwork quilt
of exceptions," including libel, slander, obscenity, profanity,
incitement to illegal acts, commercial speech, false
statements of fact, and fighting words. Chaplinsky defined
"fighting words" as those that "by their very utterance
inflict injury or tend to incite an immediate breach
of the peace." In each of these categories the expression
regulated is injurious either to the rights of a specific
individual or to the public interest.
Advocates of hate speech
legislation would add another exception:
expression in the form of violence, threats, and vandalism
committed because of the race, religion, sexual orientation,
or other such characteristics of the victim. A constitutional
problem arises under this exception when intolerant
speech is braided with some form of expressive conduct.
THE FIRST HATE SPEECH CASE
This was exactly the problem
encountered by the Supreme Court in 1991
in R.A.V. v. City of St. Paul,6 the first hate speech
case to come before the Court. In that case, two juveniles
burned a cross on the lawn of a black family in violation of a city ordinance
that forbade the placing on private or
public property "words or symbols that insult, or provoke
violence, or arouse anger, alarm or resentment in others
on the basis of race, color, creed, religion or gender."7
One of the juveniles, Ronald Viktora, argued that the
law violated his right of free expression. The
Supreme Court unanimously found the ordinance unconstitutional
but split 5-4 over why. The opinion of the Court
written by Justice Scalia provoked bitter concurring opinions
from four other justices. Members of the Court disagreed
over whether it is legitimate for a legislature to make
the essentially political judgment that some insults are worse
than others, that some words and deeds tear so sharply and
painfully at the social fabric that they may be singled out
for special punishment.
Scalia's opinion addressed the
nature and extent of the governmental
license to regulate fighting words and, by implication,
other "low-value speech. The Court held that the
city ordinance violated the First Amendment because it was
under-inclusive--that is to say, it did not abridge enough
speech. The Court found that governmental restrictions on
the use of fighting words may not be selectively imposed on
those who would convey certain messages. The St. Paul ordinance
was constitutionally flawed in making a crime out of
insults hurled in some directions--for example messages concerning
race--but not in others. People who express hostility
toward others "on the basis of political affiliation,
union membership or homosexuality" were not covered
by the law. The majority found that the St. Paul ordinance
did not prohibit all fighting words, but rather only
those concerning certain topics. The statute singled out
a "distinctive idea" for prohibition. The Court noted that
statutes making such impermissible content distinctions are
"presumptively invalid" and invalidated the ordinance. The
Court concluded "that the ordinance is facially unconstitutional
in that it prohibits otherwise permitted speech
solely on the basis of the subjects the speech addresses."
In other words, the Court held that the statute must
criminalize all fighting words, not merely a special subset
selected by the government. Laws prohibiting fighting words,
thus, must be content-neutral to withstand constitutional
scrutiny.
The Court also suggested that in
addition to being content-based, the
statute in practice served to regulate viewpoint.
Said Scalia, in the most quoted statement in his opinion,
"St. Paul has no such authority to license one side of
a debate to fight freestyle, while requiring the other to follow
Marquis of Queensberry Rules." Since the Court held the
statute facially invalid because it prohibited speech on certain
subjects, the Court's observation regarding viewpoint discrimination
in the statute's practical application was not part
of the holding. The
concurring opinion of Justice White (in which Blackmon,
O'Connor, Stevens joined) took a completely different
path to finding the St. Paul ordinance unconstitutional.
For these four Justices, the flaw in the ordinance was that it was
"overbroad," posing too great a risk
that it might deter speech or expression that deserved constitutional
protection. White
said it was entirely justifiable for St. Paul to have
placed hateful speech on the subject of race, religion or
sex in a category separate from all other speech. This selective
regulation reflects the city's judgment that harms based on race, color, creed,
religion or gender are more pressing
public concerns than the harms caused by other fighting
words. White said: "In light of our nation's long and
painful experience with discrimination, this determination is plainly
reasonable." The four justices concurred
in the judgment that the ordinance was invalid, but rejected
the Court's argument that it is unconstitutional to criminalize
only a select type of fighting words. The ordinance
was facially unconstitutional because it went beyond
fighting words to outlaw expressions protected by the First
Amendment that cause only hurt feelings, offense, or resentment
(the argument that petitioner had made before the Court).
White criticized the Court for abandoning the categorical
approach, which he viewed as "a firmly entrenched part
of our First Amendment jurisprudence." The categorical approach
provides that most speech is constitutionally protected,
but "expression falling within certain limited categories so lacks the
values the First Amendment was designed to
protect that the Constitution affords no protection to that expression."
White asserted that if the ordinance had
been limited to fighting words it would have been
a valid regulation of unprotected speech under the categorical
approach. White also criticized the Court for abandoning
the over-breadth test, which rejects broad limits on
expression in recognition that the First Amendment protects
most disturbing speech. Justice Blackmon, in his separate opinion, said, "I
see no First Amendment values that are
compromised by a law that prohibits hoodlums from driving minorities out of
their homes by burning crosses on their
lawns, but I see great harm in preventing
the people of St. Paul from specifically punishing the race-based 'fighting
words' that so prejudice their
community." He added, "I fear that the Court has been distracted
from its proper mission by the temptation to decide
the issue over 'politically correct speech' and 'cultural
diversity,' neither of which is presented here."
Justice Stevens' concurrence
(joined by White and Blackmun) stated that
"conduct that creates special risks or causes
special harms may be prohibited by special rules."
Stevens noted: "One need
look no further than the recent social unrest in the nation's cities to see that
race-based threats may cause more harm to
society and to individuals than other
threats. While that is regrettable, until the nation matures beyond that
condition, laws such as St. Paul's
ordinance will remain reasonable and justifiable." Stevens
thought that context as well as content was significant
in determining whether a particular act or message
was entitled to First Amendment protection. Of particular
importance is the identity of the speaker and of the
audience to which the message is directed. The Court should at least consider the possibility
that racial, religious, and gender-based
invectives can cause distinct and especially
grievous injury, particularly when used by members of
a powerful group against an individual already disadvantaged
by a hostile environment. In such circumstances,
an epithet comes closest to a threat, by evoking
the ever-present specter of bias-motivated violence, and,
with it, real fear in the recipient. To
Stevens and his allies, the greatest danger presented by
hate speech was the hurtful, destructive nature of the speech
or expression itself. But to the majority, the greater
danger lay in the threat that a government-imposed orthodoxy
would be put in the service of stamping out the hateful
speech. It was bland insistence on the moral equivalency
of all speech that appeared particularly to trouble,
even enrage, the justices on the other side. They wanted
some recognition from the majority of the terrible power
of words in the mouths of bigots. In expanding the freedom
of speech, this decision, in its tone of arid absolutism,
may have made freedom more painful to bear.
THE PENALTY ENHANCEMENT CASE
In June 1993, the Court
re-entered the bias crime arena with its
ruling in Wisconsin v. Mitchell.8 The case involved a
dozen or so black youngsters in Kenosha, Wisconsin, who attacked
a 14-year-old white boy and beat him unconscious .Todd Mitchell, the oldest of
the African-Americans, was convicted as
the ring leader and sentenced to two years in prison
for aggravated assault. He also received an additional
two years because the jury separately found him guilty
of selecting the victim because of his race. The Supreme Court of Wisconsin
struck down the "penalty enhancement"
law as an impermissible interference with First Amendment
freedoms.9 The U.S. Supreme Court reversed
the decision and ruled that people who
commit hate crimes because of a racial, gender,
or religious motive may be given longer prison terms without
it violating their free-speech rights. For an unanimous
Court, Chief Justice Rehnquist noted that judges have
traditionally considered a wide range of factors in sentencing
and that the motive for the crime is considered relevant.
The chief justice pointed to differences between a statute
that imposes stiffer penalties for hate crimes and one
that punishes particularly offensive speech, as was the case
in R.A.V. Actual crimes, like assault, are conduct, whereas
nasty expression is speech and is protected. Moreover,
Rehnquist said, the Wisconsin hate crime statute singles
out hate crimes for tougher punishment because of the societal harm involved: the likelihood
that bias-motivated crimes are even more
traumatic for the victim, for society as a
whole, and may lead to retribution and further violence.
THE PROBLEM WITH THE REHNQUIST
SOLUTION
The chief justice's solution to
the free expression conundrum, the simple
distinction between speech and conduct, may
not work in all cases. Difficulties will arise when intolerant
speech is so closely associated with some form of expressive
conduct that they form what John Hart Ely describes
as "an undifferentiated whole, 100% action and 100% expression.
It involves no conduct that is not at the same time
communication, and no communication that does not proceed
from conduct."10 As a result, Courts will punish what
they will term "conduct" with expressive value and protect
what they will call "expression" that requires conduct
for its means of communication. If a meaningful distinction
between bias crimes and racist speech exists, it must
be found elsewhere.
In a public address, Justice
Stevens offered one approach.11 He
indicated that Rehnquist's bright-line rule may
have to be abandoned in favor or relying "instead on attention
to detail and sensitivity to context."12 Stevens postulates
that offensive conduct need not merit the same tolerance
as that given to speech that conveys offensive messages.
He added: These judgments will be
difficult and complex, and must be
informed by attention to context-specific factors.
That is why it is wiser to argue and decide
one case at a time, using an occasional rhetorical
flourish to emphasize a point, than it is
to attempt to craft absolute propositions of law to
answer a host of questions that have not yet been
tested in adversary litigation.13 Stevens'
statements may portend a series of hate crime decisions
before the stance of the Court on the issue becomes clear.
ACADEMICIANS AND LAWYERS TO THE
RESCUE
Meanwhile, academicians and
lawyers have expounded a variety of
rationale for new nonprotected categories of speech
or proffered other remedies. Some "progressives" would
frame the debate as balancing the competing values of the
Fourteenth Amendment against the First Amendment.14 Constitutionally,
there should be an additional exception to the
First Amendment's protection of speech, an exception motivated
by a political quest for equality and sanctioned by the
Fourteenth Amendment. Such an exception would allow for regulations,
if narrowly and skillfully crafted, of speech that
is of little expressive value and which does tremendous subordinating
harm.
Another approach might be called
"the St. Paul ordinance done
right," the careful drafting of speech restrictions focusing
on the threat aspect and indicating that: 1. Speech or
expression must be specifically targeted at a particular individual
or a small group of individuals; 2. The speaker just
intend that the speech or expression convey a message that
installs fear in its listeners; and 3. The fear that violence
in the offing must be a realistic one. To go beyond the
threat probably would be construed as punishing speech that
is valuable to society.15 A novel approach would use Reconstruction Amendments
to punish hate crime perpetrators. Akhil
Reed Amar points out that the 13th
Amendment speaks directly to governmental regulation
to abolish all vestiges, badges, and incidents of slavery.
States, therefore, could use police powers under state
constitutions and in keeping with Article VI's Supremacy
Clause and Supremacy Oath to punish those who commit
crimes motivated by racial bigotry. Such action would be
reinforced by the 14th Amendment incorporation doctrine that
makes applicable against states various personal rights, freedoms, privileges
and immunities declared in the original Bill of Rights.16
Still another approach would
bring tort actions against perpetrators of
hate crimes.17 Tort actions are content- neutral
and protect against affronts of dignity. Under the law
of torts, juries could protect an individual's interests if
personality and equal citizenship. Persons who are harmed by
the intentional infliction of emotional distress based on abusive
language or behavior emphasizing the race, gender, religion
or sexual orientation or disability of the targeted victim
can sue to recover damages for their injuries, judged by
a common-sense standard of social tolerance. Furthermore, exemplary
damages (punitive damages) may be recovered when the
wrong was aggravated by violence, malice, or the wanton behavior
of the defendant. The public policy underlying an award
of exemplary damage is to set an example for the community
that similar conduct will be similarly punished. One
of the most convincing arguments for bias crime laws is
presented by Frederick Lawrence who posits that such laws do
not attack racist beliefs.18 Rather they penalize intentionally
or knowingly causing harm to a victim on the basis of his or her ethnicity,
race, religion, or sexual orientation.
Through an analysis that blends First Amendment concerns with substantive
criminal law, Lawrence concludes that
nothing in criminal law doctrine bars states from punishing
the discriminatory selection of a victim.
CONCLUSION
The jury is still out on the
constitutionality of hate crimes. It is
understandable that the Supreme Court's decisions in this area are
controversial. If the Court remains true
to its libertarian tradition protecting free expression, it will value highly
tolerance. The types of expression
protected in the hate crimes controversy are so loathsome
that only the most secure and First Amendment- protected
society would think of protecting them. Indeed, the
U.S. is alone in the world in affording such protection. As
Floyd Abrams points out, this is one of this country's
glories, not one of its weaknesses.19 If it were the
best of all possible worlds, the discourse of the American
people would be cerebral and civil. But in our tradition,
we do not use law to guarantee that expression be either
civilized or virtuous. We do not trust government to define
for us what may or may not be said. That is politically
and constitutionally correct. That is our ultimate protection entrusted to the
safekeeping of the Supreme Court.
NOTES
1. According to the Barnhart
Dictionary Companion, A Quarterly to
Update General Dictionaries 6 (Fall 1991): 128,
political correctness means: "following with the political
doctrine of a government; to be considered to be among
the ruling group, especially for personal political advantage;
assuming an acceptable position concerning society,
especially a position advocating widely accepted attitudes."
The term apparently was first published in an article
reporting on the hearings of a Congressional subcommittee on Immigration,
Refugees, and International Law in William
McPherson, "Standby to Repel Untidy Thoughts,"
Washington Post, 22 May 1984.
2. Hate Crime Statistics Act, 28
U.S.C.A., Sec. 534 (Law. Co- op. Supp.
1991)
3. The two sides in this debate
are heirs of the controversy over the
legal enforcement of morality in the 19th century between
John Stuart Mill and Sir James Fitzjames Stephen, and
in the 20th century between H.L.A. Hart and Lord Patrick
Devlin.
4. Elizabeth F. Defeis,
"Freedom of Speech and International Norms:
A Response to Hate Speech," 29 Stanford J. of Intl Law
57 at 62 (1992).
5. 315 U.S. 568 (1942).
6. 112 S. Ct. 2538 (1992).
7. Id. at 2541.
8. 61 USLW 4575 (1993).
9. 485 N.W.2d 807 (1992).
10. John Hart Ely, "Flag
Desecration: A Case Study of the Roles of
Categorization and Balancing in First Amendment Analysis,"
88 Harv. L. Rev. 1481 at 1495 (1975).
11. John Paul Stevens,
"Freedom of Speech," 102 Yale L. J. 1293
(1993).
12. Id. at 1311.
13. Id.
14. See, e.g., Mary Ellen Gale,
"Reimagining the First Amendment:
Racist Speech and Equal Liberty," 65 St. John's
L. Rev. 119 (1991).
15. Nadine Strossen,
"Liberty, Equality and Democracy: Three Bases
for Reversing the Minnesota Supreme Court's Ruling,"
18 Wm. Mitchell L. Rev. 965 (1992).
16. Akhil Reed Amar, "The
Case of the Missing Amendments: R.A.V. v.
City of St. Paul," 106 Harv. L. Rev. 124 (1992).
17. Richard Delgado, "Words
That Wound: A Tort Action for Racial
Insults, Epithets, and Name Calling," 17 Harv.C.R. -C.L.L.Rev.
133 (1982); Michael K. Steenson, "Civil Actions
for Emotional Distress and R.A.V. v. City of St. Paul,"
18 Wm. Mitchell L. Rev. 983 (1992).
18. Frederick M. Lawrence,
"Resolving the Hate Crimes/Hate Speech
Paradox: Punishing Bias Crimes and Protecting Racist
Speech," 68 Notre Dame L. Rev. 673 (1993).
19. Letter to the Editor,
New York Times, 3 July 1992, p. 24A.
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