12 XII. Hate Speech 12 XII. Hate Speech
Note: The cases in this unit contain words and descriptions of conduct that you may find disturbing.
Supreme Court of the United States.
BEAUHARNAIS
v.
PEOPLE of the STATE OF ILLINOIS.
No. 118.
Argued Nov. 28–29, 1951.
Decided April 28, 1952.
Justice FRANKFURTER delivered the opinion of the Court.
The petitioner was convicted of violating s 224a of Division 1 of the Illinois Criminal Code. The section provides:
‘It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.’
Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant’s conviction. We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups.
Beauharnais created and posted a leaflet setting forth a petition calling on the Mayor and City Council of Chicago ‘to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.’ Below was a call for ‘One million self-respecting white people in Chicago to unite’ with the statement added that ‘If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions, rapes, robberies, knives, guns and marijuana of the negro, surely will.’ This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc.
The statute before us is not a catchall enactment left at large by the State court which applied it. It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. The Illinois Supreme Court tells us that s 224a ‘is a form of criminal libel law’. The defendant, the trial court and the Supreme Court consistently treated it as such. Moreover, the Supreme Court’s characterization of the words prohibited by the statute as those ‘liable to cause violence and disorder’ paraphrases the traditional justification for punishing libels criminally, namely their ‘tendency to cause breach of the peace.’
[In Chaplinsky, we stated:] “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of 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. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”
No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of marijuana. The precise question before us, then, is whether the protection of ‘liberty’ in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels—as criminal libel has been defined, limited and constitutionally recognized time out of mind—directed at designated collectivities. If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group.
Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that willful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Elijah Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. In many of these outbreaks, utterances of the character here in question played a significant part. The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups—foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements of northern claims. Nine years earlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State. Less than a month before the [law] was enacted, East St. Louis had seen a day’s rioting, prelude to an out-break, only four days after the bill became law, so bloody that it led to Congressional investigation. A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919.
In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. There are limits to the exercise of these liberties (of speech and of the press). The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish.
It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern know-nothings. Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State’s power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues.
We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced. Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law.
Affirmed.
Justice BLACK, with whom Justice DOUGLAS concurs, dissenting.
This case is here because Illinois inflicted criminal punishment on Beauharnais for causing the distribution of leaflets in the city of Chicago. The conviction rests on the leaflet’s contents, not on the time, manner or place of distribution.
I think the First Amendment, with the Fourteenth, absolutely forbids such laws without any ‘ifs’ or ‘buts’ or ‘whereases.’ Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties.
If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark: ‘Another such victory and I am undone.’
Justice DOUGLAS, dissenting.
My view is that if in any case other public interests are to override the plain command of the First Amendment, the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster.
The First Amendment is couched in absolute terms—freedom of speech shall not be abridged. Speech has therefore a preferred position as contrasted to some other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment. Until recent years that had been the course and direction of constitutional law. Yet recently the Court in this and in other cases2 has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate ‘within reasonable limits’ the right of free speech. This to me is an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy—an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn—limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action.
The Court in this and in other cases places speech under an expanding legislative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating [segregation]. Tomorrow a negro will be hailed before a court for denouncing lynch law in heated terms. Debate and argument are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of man. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for retrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment—a constitutional interpretation which puts free speech under the legislative thumb. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says.
1. The Supreme Court has never again applied Beauharnais’s group libel theory; the Court has also never formally overruled it. Most scholars therefore agree that while Beauharnais technically remains “good law,” it is of limited precedential value unless and until the Court reaffirms it in a future case.
2. The following three article excerpts provide differing perspectives on the problem of hate speech and the First Amendment.
Free Speech Can Be Messy, but We Need It
by Lee Rowland, Senior Staff Attorney, ACLU Speech, Privacy, and Technology Project
MARCH 9, 2018
The year 2017 was a hell of a year for the First Amendment. Nowhere was more central to this culture war than the campuses of universities across America—including right here at the University of Nevada, Reno.
Two students found themselves embroiled in the biggest free speech controversies of recent years. Peter Cytanovic became the face of white nationalism when a picture of him snarling, holding a tiki torch at the Unite the Right Rally in Charlottesville went viral. On the opposite end of the political spectrum, graduate Colin Kaepernick went on to the NFL and used his position to highlight police brutality and racial injustice by taking a knee during the national anthem. Both men became incredibly controversial for their speech. There were calls and campaigns for them to be expelled for their opinions.
But regardless of whether you agree with one of them, both of them, or neither, the First Amendment protects both of those men and their opinions from censorship and retaliation by the government. That’s a good thing. Let me tell you why.
It’s becoming more common to call for lower legal protections for speech—specifically, that we should criminalize “hate speech.” I think many would love a world where Mr. Kaepernick could take a knee without any worry the government would force the NFL to fire him, but where a government school would still have the power to expel Mr. Cytanovic. This is a dangerous proposition.
I’m a progressive. It’s not hard for me to choose between white nationalism and racial justice. The first is abhorrent and racist. The other is a demand for equal rights. But what if we gave the government the power to decide which of those men was too hateful to speak? Look at our current president—he called Charlottesville marchers “very fine people,” while reserving his ire for Black NFL players, whom he called “sons of bitches.” Your idea of “hate speech” may not be the government’s idea of “hate speech.” I know mine isn’t. But even if you agree with Trump—are you sure our next president will agree with your worldview? You shouldn’t be. That’s why I’m a true believer in the First Amendment. I am an anti-authoritarian. And I know that the government has historically wielded its raw power to silence those who speak truth to power. And because I want students everywhere to be able to take a knee without fear of government censorship, I know we have to cherish our robust First Amendment—even for speech that is hateful.
But even though I’m a free speech attorney, I find many of the common tropes and myths about free speech unsatisfying. I’m going to explain why I’m a true believer by debunking [some] common myths, and, in the process, hopefully reveal practical tips for exercising your free speech rights powerfully and strategically.
Let’s start with one myth we all learned in kindergarten: Sticks and stones may break my bones, but words will never hurt me.
Does anyone as an adult actually believe this? It’s manifestly untrue. I’m a free speech attorney precisely because I believe that words matter. We cannot protect free speech by denying its power.
Yes, there is power in hateful words. But there is also power in [the] unwillingness to be goaded into a fight or to play the role of censor.
Second Myth: Hate speech isn’t protected by the First Amendment.
I often hear younger people say that hate speech isn’t protected by the First Amendment. But that’s untrue. As President Trump’s views of Mr. Kaepernick should make plain, “hate speech” is a flexible concept. Just this week, the Spanish government arrested and charged a man with “hate speech” for calling cops “slackers” on Facebook. That’s what criticizing the government looks like without a First Amendment. “Hate speech” can easily be redefined as speech that threatens the state.
But we shouldn’t only protect speech out of paranoia—there’s an upshot here, too. Our history shows the same First Amendment that protects hateful, racist speech can be and has been used by civil rights advocates to protect historically vulnerable communities.
Charles Brandenburg was an avowed racist convicted of “incitement to violence” for holding an Ohio Ku Klux Klan rally in the late 1960s. The KKK’s lawyers took it all the way up to the Supreme Court, arguing his hateful ideas were protected by the First Amendment. The Supreme Court agreed with Brandenburg that his vicious, genocidal talk about Jews and Black people was constitutionally protected because it only fantasized about future violence. The court decided that before the government can punish speech, there has to be an immediate and specific risk of actual violence to a real person.
In a vacuum, that result might upset you. But at around the same time, NAACP leader and civil rights icon Charles Evers gave a passionate speech advocating a boycott of racist, white-owned businesses. He promised that he’d “break the damn neck” of any activist who broke the boycott. White business owners sued Evers and the NAACP for—you guessed it—“incitement,” arguing that his violent language had led to riots. But the NAACP looked to that Brandenburg case. Those civil rights leaders appealed all the way to the Supreme Court, to be sure that Mr. Evers benefitted from the same rights as a KKK member. And they succeeded.
The court boiled it down to this question: Are we talking about theoretical future violence, or is there an immediate risk of harm to a real person? And while there is nothing equivalent about the KKK and the NAACP, from that point of view, these cases looked the same.
There is reason to be skeptical that the rights extended to a KKK member will actually trickle down to someone like an NAACP leader. The hard truth is that every right in our society first gets distributed to the privileged and powerful.
But would you say the answer to that uneven distribution of rights is to eliminate the very constitutional protections that enable us to fight the government when it violates them? No. Distributing our constitutional rights equally is a process. The First Amendment is no different.
It’s our job to ensure that everyone benefits from the same level of constitutional protection, that our free speech rights are truly “indivisible.” Our First Amendment is necessary to ensure that those who challenge the government are not silenced—but that’s not sufficient to ensure justice. We have to do the rest of the work.
* * * *
87 Mich. L. Rev. 2320
Copyright 1989 by Mari J. Matsuda. All rights reserved.
Public Response to Racist Speech: Considering the Victim’s Story
I. INTRODUCTION
A black family enters a coffee shop in a small Texas town. A white man places a card on their table. The card reads, “You have just been paid a visit by the Ku Klux Klan.” The family stands and leaves.
A law student goes to her dorm and finds an anonymous message posted on the door, a caricature image of her race, with a red line slashed through it.
A Japanese-American professor arrives in an Australian city and finds a proliferation of posters stating “Asians Out or Racial War” displayed on telephone poles. She uses her best, educated inflection in speaking with clerks and cab drivers, and decides not to complain when she is overcharged.
These unheralded stories share company with the more notorious provocation of swastikas at Skokie and burning crosses on suburban lawns. The threat of hate groups like the Ku Klux Klan and the neo-Nazi skinheads goes beyond their repeated acts of illegal violence. Their presence and the active dissemination of racist propaganda means that citizens are denied personal security and liberty as they go about their daily lives. This Article [suggests] that formal criminal and administrative sanction is an appropriate response to racist speech.
In calling for legal sanctions for racist speech, this Article rejects an absolutist First Amendment position. It calls for movement of the societal response to racist speech from the private to the public realm. The places where the law does not go to redress harm have tended to be the places where women, children, people of color, and poor people live.
[My] call for a formal, legal-structural response to racist speech goes against the long-standing and healthy American distrust of government power. It goes against an American tradition of tolerance that is precious in the sense of being both valuable and fragile. Dean Lee Bollinger has concluded that a primary reason for the legal protection of hate speech is to reinforce our commitment to tolerance as a value. If we can shore up our commitment to free speech in the hard and public cases, like Skokie, perhaps we will internalize the need for tolerance and spare ourselves from regrettable error in times of stress. Given the real historical costs of state intolerance of minority views, the First Amendment purpose identified by Dean Bollinger is not one lightly set aside.
[This Article nonetheless] concludes that an absolutist First Amendment response to hate speech has the effect of perpetuating racism: Tolerance of hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay.
[II. The Effects of Hate Speech]
Racist hate messages are rapidly increasing and are widely distributed in this country using a variety of low and high technologies. The negative effects of hate messages are real and immediate for the victims. Victims of vicious hate propaganda have experienced physiological symptoms and emotional distress ranging from fear in the gut, rapid pulse rate and difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide. Professor Patricia Williams has called the blow of racist messages “spirit murder” in recognition of the psychic destruction victims experience.
Victims are restricted in their personal freedom. In order to avoid receiving hate messages, victims have had to quit jobs, forgo education, leave their homes, avoid certain public places, curtail their own exercise of speech rights, and otherwise modify their behavior and demeanor. The recipient of hate messages struggles with inner turmoil. One subconscious response is to reject one’s own identity as a victim-group member.
As much as one may try to resist a piece of hate propaganda, the effect on one’s self-esteem and sense of personal security is devastating. To be hated, despised, and alone is the ultimate fear of all human beings. However irrational racist speech may be, it hits right at the emotional place where we feel the most pain. The aloneness comes not only from the hate message itself, but also from the government response of tolerance. When hundreds of police officers are called out to protect racist marchers, when the courts refuse redress for racial insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person. Target-group members can either identify with a community that promotes racist speech, or they can admit that the community does not include them.
[III. International Human Rights Law]
The international community has chosen to outlaw racist hate propaganda. Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination states:
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organization or activities as an offence punishable by law; [and]
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.
Under this treaty, states are required to criminalize racial hate messages. Prohibiting dissemination of ideas of racial superiority or hatred is not easily reconciled with American concepts of free speech. An American lawyer, trained in a tradition of liberal thought, would read article 4 and conclude immediately that it is unworkable. Acts of violence, and perhaps imminent incitement to violence are properly prohibited, but the control of ideas is doomed to failure. In signing the Convention, the United States made a relatively short reservation, stating:
The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of The United States of America.
The reservation separates the United States from an evolving world standard. This position represents an extreme commitment to the First Amendment at the expense of antidiscrimination goals.
The Convention is not the only expression of the emerging international view. The United Kingdom, for example, under the Race Relations Act, has criminalized incitement to discrimination and incitement to racial hatred. The Act criminalizes the publication or distribution of “threatening, abusive, or insulting” written matter or use of such language in a public place. The Act is consistent with the international standard in that it recognizes that avoiding the spread of hatred is a legitimate object of the law, and that some forms of racist expression are properly criminalized.
Canada has similarly adopted a national statute governing hate propaganda. Sections 318 and 319 of the Canadian Criminal Code outlaw communications inciting hatred against any identifiable group where a breach of peace is likely to follow. The law further outlaws the expression of ideas inciting hatred if such expression is tied to a probable threat to order. Australia and New Zealand also have laws restricting racist speech, leaving the United States alone among the major common law jurisdictions in its complete tolerance of such speech. What these laws and the United Nations Convention have in common is that they specify a particularly egregious form of expression for criminalization. All ideas about differences between races are not banned. The definitive elements are discrimination, connection to violence, and messages of inferiority, hatred, or persecution. Thus the entire spectrum of what could be called racist speech is not prohibited. A belief in intellectual differences between the races, for instance, is not subject to sanctions unless it is coupled with an element of hatred or persecution. What the emerging global standard prohibits is the kind of expression that most interferes with the rights of subordinated-group members to participate equally in society, maintaining their basic sense of security and worth as human beings.
The failure of American law to accept this emerging standard reflects a unique First Amendment jurisprudence. In order to discuss the significance of this contradiction, it is necessary to consider the American position of tolerance.
[IV. Protection of Traditional First Amendment Values]
This Article attempts to recognize and accommodate the [traditional] civil libertarian position. The victim’s perspective requires respect for the idea of rights, for it is those on the bottom who are most hurt by the absence of rights, and it is those on the bottom who have sustained the struggle for rights in American history. The image of book burnings should unnerve us and remind us to argue long and hard before selecting a class of speech to exclude from the public domain. I am uncomfortable in making the suggestions made in this section if others fall too easily into agreement.
In order to respect First Amendment values, a narrow definition of actionable racist speech is required. Racist speech is best treated as a sui generis category, presenting an idea so historically untenable, so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the realm of protected discourse. The courts in the Skokie case expressed doubt that principles were available to single out racist speech for public limitation. This section attempts to construct a doctrinal and evidentiary world in which we might begin to draw the lines the Skokie courts could not imagine.
The alternative to recognizing racist speech as qualitatively different because of its content is to continue to stretch existing first amendment exceptions, such as the “fighting words” doctrine and the “content/conduct” distinction. This stretching ultimately weakens the First Amendment fabric, creating neutral holes that remove protection for many forms of speech. Setting aside the worst forms of racist speech for special treatment is a non-neutral, value-laden approach that will better preserve free speech.
In order to distinguish the worst, paradigm example of racist hate messages from other forms of racist and nonracist speech, three identifying characteristics are suggested here:
1. The message is of racial inferiority;
2. The message is directed against a historically oppressed group; and
3. The message is persecutorial, hateful, and degrading.
Making each element a prerequisite to prosecution prevents opening of the dreaded floodgates of censorship.
The Case of the Angry Nationalist
Expressions of hatred, revulsion, and anger directed against historically dominant-group members by subordinated-group members are not criminalized by the definition of racist hate messages used here. Malcolm X’s “white devil” statements—which he later retracted—are an example. Some would find this troublesome, arguing that any attack on any person’s ethnicity is harmful. The harm and hurt is there, but it is of a different degree. Because the attack is not tied to the perpetuation of racist vertical relationships, it is not the paradigm worst example of hate propaganda. The dominant-group member hurt by conflict with the angry nationalist is more likely to have access to a safe harbor of exclusive dominant-group interactions. Retreat and reaffirmation of personhood are more easily attained for historically non-subjugated-group members.
While white-hating nationalist expressions are troublesome both politically and personally, I would interpret an angry, hateful poem by a person from a historically subjugated group as a victim’s struggle for self-identity in response to racism. It is tied to the structural domination of another group. Should history change course, placing former victim groups in a dominant or equalized position, the newly equalized group will lose the special protection suggested here for expression of nationalist anger.
Critics of this proposal ask how one knows who is oppressed and who isn’t. Poor whites, ethnic whites, wealthy ethnics—the confusing examples and barriers to classification abound. In some cases, a group’s social well-being may improve, while their victimization continues. Asians who experience economic success are often underemployed relative to their talents. Jews who attain equality in employment still experience anti-Semitic vilification, harassment, and exclusion. Catholics are relatively free from discrimination in some communities, and subject to vile bigotry in others. In the same way that lawyers deploy evidence in an adversarial setting to find facts in other areas of law, we can learn to do the same to know the facts about subordination, and to determine when hate speech is used as an instrument of that subordination.
Anti-Semitism and Racism by Non-Whites
What of hateful racist and anti-Semitic speech by non-whites? The phenomena of one subordinated group inflicting racist speech upon another subordinated group is a persistent and touchy problem. Similarly, members of a subordinated group sometimes direct racist language at their own group. The victim’s privilege becomes problematic when it is used by one subordinated person to lash out at another. While I have argued here for tolerance of hateful speech that comes from an experience of oppression, when that speech is used to attack a subordinated-group member, using language of persecution, and adopting a rhetoric of racial inferiority, I am inclined to prohibit such speech.
The victims’ experience reminds us that the harm of racist hate messages is a real harm, to real people. When the legal system offers no redress for that real harm, it perpetuates racism.
This Article attempts to begin a conversation about the first amendment that acknowledges both the civil libertarian’s fear of tyranny and the victims’ experience of loss of liberty in a society that tolerates racist speech. It suggests criminalization of a narrow, explicitly defined class of racist hate speech, to provide public redress for the most serious harm, while leaving many forms of racist speech to private remedies. Some may feel this proposal does not go far enough, leaving much hurtful speech to the uneven control of the marketplace of ideas. Others will cringe at what they perceive as a call for censorship. This is not an easy legal or moral puzzle, but it is precisely in these places where we feel conflicting tugs at heart and mind that we have the most work to do and the most knowledge to gain.
* * * *
University of Chicago Law Review
Fall, 1986
Copyright 1986 by the University of Chicago; David A. Strauss
Review of The Tolerant Society: Freedom of Speech and Extremist Speech in America by Lee Bollinger (Oxford Univ. Press)
Lee Bollinger argues that the institution of free speech, established by the First Amendment, functions principally as a kind of didactic ritual: by requiring us to be tolerant of the most abhorrent speech, the First Amendment teaches us to be tolerant throughout political life. Bollinger’s primary focus is on what he calls ‘extremist speech.’ His principal example of extremist speech is the effort a few years ago by a Nazi group to march in Skokie, Illinois, a Chicago suburb with a large Jewish population that includes several thousand survivors of concentration camps. Bollinger rejects, not as worthless but rather as insufficient and obsolete, what he sees as the two principal received justifications for providing legal protection to such extremist speech: the view that all speech, including extremist speech, must be protected so that democratic politics can function successfully; and the theory that if extremist speech is not tolerated, the government will be able to suppress speech that is unquestionably valuable and worthy of protection. He argues instead that the purpose of free speech is to teach self-control by forcing people to tolerate an activity they would like to suppress. In particular, this enforced toleration teaches us to understand and control the ‘impulse toward intolerance’ that is present in everyone—an impulse that has its legitimate claims, Bollinger says, but that, if unchecked, can have devastating consequences for society.
Bollinger begins by challenging what he calls the ‘classical’ defense of free speech. This is the view that free speech is necessary to enlightened democratic self-government because the suppression of information and ideas thwarts the search for truth and impairs a political system’s ability to reach the right decisions. In acknowledging, ungrudgingly, that this view has considerable force, Bollinger relies on an insight into personal psychology: he points out that we all know from our personal lives that dialogue with others helps us reach better decisions. And he acknowledges that the ‘classical’ defense of free speech is of great importance when a community is trying to establish ‘the minimally essential conditions of a ‘democratic’ society.’
But while some level of free exchange of information and ideas is necessary to a self-governing society, our society has far surpassed that level, Bollinger says, and we could suppress a good deal of extremist speech without rendering ourselves literally incapable of democratic self-government. Most Western European nations, for example, have laws forbidding speech that incites racial hatred, including speech that is almost certainly constitutionally protected here.
Bollinger also attacks the classical view on the ground that it prevents us from applying to speech the kind of cost-benefit calculations that we unhesitatingly apply in dealing with actions. Perhaps speech is, in general, less harmful than action. But is it plausible to say that speech is so much less harmful that the government has free rein to regulate action but can almost never regulate speech? Perhaps, as John Stuart Mill argued, the search for truth is advanced by confrontation even with egregiously false ideas. But do we really believe that the search for truth is advanced by allowing the Nazis to march? Or, more precisely, is the likelihood that the Nazis will contribute to our search for truth really great enough to outweigh the harms that their speech will inflict—in particular, the very real emotional suffering of the concentration camp victims? Bollinger meets the usual objection—if Skokie can lawfully suppress the Nazis, then segregationist communities could have suppressed civil rights demonstrators—by denying that it is impossible to draw the necessary lines. After all, we have no difficulty drawing a line that prohibits the actions that the Nazis advocated while permitting the actions supported by the civil rights movement. Why should we have any more difficulty drawing a line that distinguishes the speech of those two groups?
Bollinger argues in addition that the defense of the classical view systematically ignores the virtues of intolerance. People confronted with an idea they abhor, Bollinger says, have a deep need to express their abhorrence. Intolerance is itself a ‘communicative act[ ],’ a ‘form of expression intended to avoid creating the wrong impression—either that we don’t really believe what we claim to believe or that we don’t have the courage of our convictions or the power to defend them.’ Both individuals and communities define themselves by refusing to tolerate certain ideas, and if they are forced to tolerate an abhorrent view they may ‘feel implicated in, and their identity tarnished by,’ that view. In reply to the contention that one should express intolerance of a view by speaking against it, not by suppressing it, Bollinger argues that legal prohibition is a particularly effective way for a community to express its opposition to an idea.
Bollinger’s [justification for robust free speech protection] begins from the premise that excessive intolerance can be a threat throughout political life. That is why it is so important that we be educated to control it. Speech is a good area in which to practice self-control because the stakes are lower than in the area of conduct: less harm will be done if we tolerate bad speech than if we tolerate bad actions. But we exercise ‘extraordinary self-restraint’ toward speech in order to teach ourselves to be more tolerant throughout ‘the whole tapestry of social intercourse.’
The institution of free speech serves this educative function in several ways. First, Bollinger says, when people tolerate harmful speech—when the residents of Skokie tolerate the emotionally bruising speech of the Nazis, for example—their ‘self-restraint in the face of the injury sustained’ has a broader social meaning; it ‘demonstrates powerfully, more powerfully than a general injunction to be appropriately tolerant in all circumstances ever would, to [them]selves and others, a commitment to exercise moderation throughout social intercourse.’
Second, enforced tolerance makes us confront the motivations underlying our impulse to be intolerant—motivations that, according to Bollinger, are often a mix of the good (for example, a desire to dissociate oneself from an abhorrent idea) and the bad (for example, a desire to suppress differences among people or to make scapegoats of the extremists). When we are forced to confront the speech itself and therefore our impulse to suppress it, we may be led to try to purge ourselves of the illegitimate aspects of our motivations. Third, since extremist speech often reflects the attitudes of the intolerant mind—contempt for the views of others, ‘incapacity to cope with uncertainty in human affairs,’ and a ‘quest for simple and clear answers’—exposure to such speech enables us to identify those attitudes and resolve not to entertain them ourselves.