Protection of Hate Speech

For as long as anyone can remember there have been differences of race, religion, sex and gender in this country. Consequently, there are those who feel that they are superior to others based upon their specific race or beliefs, and in response speak out regarding such beliefs often in a manner both physically and verbally derogatory. Those trying to remedy this situation have attempted to establish “hate-speech” laws that would make it illegal at certain times and in certain places to degrade another’s race, religion, sex or gender. The problem with these laws is that they not only limit the speaker’s expression but also the speaker’s opinion. These laws run the risk of violating not only the person’s freedom of expression, but also the freedom of thought. Therefore, hate speech laws that punish those for being prejudiced for their thoughts and speech should not be imposed.

Taking this idea into a real situation, a person may hate African Americans and speak out according to such hatred as much as he or she desires. However, when such forms of expression become actions which cause a “true threat” it is no longer protected under the first amendment. The Supreme Court defined a “true threat” in the 2003 case Virginia v. Black, stating that a “true threat” is “[t]hose statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” The Supreme Court held the opinion that the

“[s]peaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

Hence, if a person verbally speaks out about directly harming another human being or group of people with the intent of putting that person or group of people in fear of physical harm or death, they are no longer protected under the First Amendment.

This definition is grounded in the philosophy of Thomas Emerson who believed that freedom of expression should extend to expression but not to action. According to Emerson, “expression must be freely allowed and encouraged, and has earned an absolute right of protection. However, conduct that includes ‘action’ has no protection.”

An additional layer to this debate that needs to be addressed is the difference between public and private speech. In the 2011 case Snyder v. Phelps the Supreme Court ruled that the State of Maryland could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased Marine Lance Corporal Matthew Snyder. Now before we dive into the difference between public and private speech, first, let me back up a little to give the reader background on this particular case.

On March 10, 2006 The West Baptist Church (WBC) of Topeka, Kansas traveled to Maryland and picketed the funeral of the deceased solider Matthew Snyder. The purpose of the protest was to speak out against homosexuals in the military. The congregation did this with picketed signs which had blatant derogatory statements. The picketing took place on public land approximately 1,000 feet from where the funeral was held.

The father of the fallen soldier filed a diversity action against the founder of the WBC, Fred Phelps, and the church claiming “intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy.” The supreme court defending the actions of the WBC, stated, “speech on public issues occupies the “highest rung of the hierarchy of First Amendment values” and is entitled to special protection.”

While I find the actions carried out by this church deplorable and frankly quite disgusting, I also find myself in agreement with the Supreme Courts ruling. It goes back to this notion of private verses public speech. The church was on public property and by the courts definition of public speech; they were speaking out against matters of social concern to the community. Do I think that the actions of this church caused emotional distress to the father of the fallen soldier? Absolutely! Having gone through something similar myself, my heart goes out to that father. Ethically, this church should be nailed to the wall, but lawfully I must disagree. Making it unlawful for this group to speak their minds would set a dangerous precedent. We cannot support the freedom of speech for those who preach only the messages we agree upon. The freedom of speech must extend to all; it must extend to the sane as well as the insane. For this reason, I begrudgingly support the right for the church and their founder to protest outside the funeral of that fallen soldier.

Going back to this notion of private verses public speech, it is a notion that was proposed by the philosopher Zechairah Chafee Jr. The philosopher argued that speech pertaining to the social interests of the community should have the highest form of protection. Chafee devised a “clear and present danger” test, further defined in the 1919 case Schenck v. U.S which states that any speech which presents a clear and present danger to the victim is not protected under the First Amendment.

If we apply this test to the Snyder v. Phelps case, the WBC and its founder did not pose a clear and present danger towards those attending the funeral. The group was standing 1,000 feet from the actual funeral and the messages posted on the picketed signs were not directly aimed at Marine Lance Corporal Matthew Snyder. In addition the messages addressed matters of public concern. Furthermore, there is no proof that there was intent to commit an act of unlawful violence towards the father and funeral attendees. Therefore, despite the ethical questionability of their actions, the WBC had every right to protest at the funeral.

There are other forms of “hate speech” that are important to address because, like the Snyder v. Phelps case, these forms of hate speech should also be protected under the First Amendment. Other examples of hate speech are speech against religions and different races. The target of religious hate speech in recent years has been Islam. A classic example of this is a Christian church group distributing t-shirts to its members that state “Islam is of the Devil.” While this statement exemplifies massive generalizations and distorts the religion of Islam, it must be protected. These statements don’t place anyone in fear of bodily harm or death; which means it passes the “clear and present danger” test.

It’s not the religious organization that should be protected but the followers of such organizations. However, we have to be careful when protecting these followers so that we don’t stifle opposing opinions about such organizations. It is having openly opposing ideas and opinions as well as a free form to discuss and challenge such opinions that has helped us advance as a nation.

Now the debate against protecting speech regarding someone’s race is a bit more difficult to defend because you are speaking out against a person’s identity rather than their personal beliefs. One example of a current controversy surrounding racial hate speech is cross burning. This controversy exemplifies hate speech through the use of symbols. In the 1992 case R.A.V v. St. Paul the Supreme Court ruled in favor of protecting white teenagers who burned a cross in the yard of a black family. The teenagers were charged under a “local bias- motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Supreme Court ruled to protect the defendants because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." In other words, this prohibition is too overly broad.

Under this specific charge I agree with the Supreme Court’s ruling. That being said, I would convict those teenagers of committing a “true threat.” If we were to pass the actions of the teenagers through the “clear and present danger” test, they would fail miserably. Remember a “true threat” determined by the Supreme Court to be “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” I argue that such statements can be translated through symbols. The Supreme Court also ruled that the speaker does not need to actually carry out the threat but rather it protects the victim from fear that such an act might be carried out. Burning a cross on the private property of a black family would most likely incite such a fear. Now, if the teenagers had burned a cross on private property (with permission) or on public property, they would be protected under the First Amendment. An example of such an occurrence is the 2003 case Virginia v. Black which was discussed earlier. But since that’s not what happened they should not be protected.

These ideas go back to the philosophy of Thomas Emerson, who proposed that freedom of speech should extend to expression and not to action. The categories of action that should go unprotected are sedition, defamation, obscenity, and provocation to anger. When looking at the facts of the case, I would say the actions taken by the white teenagers would fall under the category of “provocation to anger.” People should be protected from having their personhood directly threatened within the comfort of their own home, which is private property.

Now, hate speech is not just a domestic issue. International communities deal with this same issue and the final verdict about what constitutes protected and unprotected speech is not always universal. International jurisprudence defines hate speech as that which “advocates extreme or egregious violence against a target group (Rikhof, 1128).” To further define hate speech within international jurisprudence, the courts state that “persecutory speech which encourages hatred and violence against a targeted group furthers an [actual] attack against that group (Rikhof, 1128).” This means that in addition to speech that advocates violence, the international courts consider hate speech to be directly tied to any direct violent actions carried against that group. This principle is not followed in domestic law. As stated earlier in the essay, (under US law) there does not need to be any action carried out, just a fear from the victim that there could be such an action.

Presently, the Canadian Crimes against Humanity and War Crimes Act (CAHWA) lays out similar stipulations as the international jurisprudence and domestic laws; meaning that any such speech which promotes crimes against humanity is deemed illegal. Canadian law is in accordance with international jurisprudence when it states that in order for hate speech to enter the realm of criminal law it must openly and explicitly advocate extreme violence on the target of that speech. While hate speech is similarly defined, the difference between Canadian and domestic laws verses international law is that unlike international law, there does not need to be a direct link between the speech and hate crimes in order for such speech to be considered criminal.

While international and Canadian law set different precedents than domestic laws, all three communities agree upon the commitment to the individual human dignity. There needs to be a common balance between protecting everyone’s right to free expression and opinion while protecting everyone’s humanity. As long as speech does not incite fear of bodily harm it must be protected. There will always be differences between people. The solution to these differences should not be to limit emotionally charged communication. A person must be allowed to express their thoughts and opinions in a non-violent manner.