It's not the content that matters: Judicial interpretation of hate speech

The number of Supreme Court cases related to freedom of speech is staggering, as is the number of cases related to hate speech. Despite the large number of cases that relate to this kind of speech, the Supreme Court, as well as other federal courts, have consistently held that government cannot regulate the content of speech, despite how offensive it may be to some people. However, it reserves the right for government to regulate speech that is injurious to other parties. For example, the extreme speech of a white supremacist that inflicts actual harm, or even the threat of harm, as in Virginia v. Barry Elton Black can be regulated, just as the extreme speech of a black supremacist. However, just because the government does not like certain content does not give it the right to regulate speech.

“The ideas of the Klan may be propagated. Communists may speak freely and run for office. The Nazi Party may march through a city with a large Jewish population. People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke constitutional amendments granting the vote to blacks and women. They may do this because ‘above all else, the First Amendment means that government has no power to restrict expression because of its message or its ideas…’” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis)

Though the court maintained this assertion, they have also maintained that some aspects of speech may be regulated. For example, Justice Sandra Day O’Connor held in Virginia v. Barry Elton Black that though cross burning may be symbolic speech, in some instances the state has the right to regulate it. The state can regulate this hate speech where it is accompanied by intent to intimidate, or create fear of bodily harm. In the court’s judgment, the statute in the state of Virginia outlawing cross burnings was overturned, only because the statute held that all cross burnings were done with an intent to intimidate. Banning all cross burnings, she said, represented discrimination based on the content of the speech, not the harmful effects of the speech. She says this because cross burning was a large symbol of the KKK, and used at private meetings between members. Thus, the cross is a form of symbolic speech, used to funnel and draw anger. “The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim” (Virginia v. Barry Elton Black)

(Virginia v. Barry Elton Black background: This case began with a KKK rally led by the respondent, Barry Black. He had gathered 25-30 people on a property in Virginia. The rally took place in a highly visible area by the side of the road, and people at the original trial testified that they were scared by the display, which included negative speech directed at black people. When Black objected to his trial on first amendment grounds, the original court paid no heed, and found black guilty and fined him 2,500 dollars. He subsequently appealed the decision all the way to the Supreme Court)

The 7th Circuit Court of Appeals carried a similar message in American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis. Here, the court overturned an Indiana statute that regulated what it called “pornography.” The statute chose to define pornography as a practice that discriminates against women. All of these types of “pornography” are considered illegal, no matter if they are forms of art or not. Under this statute, books like the Iliad would have to potential to be regulated. On the other hand, content that does not discriminate against women, no matter how explicit, would not be regulated. The American Booksellers sued the Mayor on the basis of the unconstitutionality of the statute, which the court held discriminated based on the content of the speech, making the statute unconstitutional. “We do not try to balance arguments for and against an ordinance such as this. The ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way—in sexual encounters ‘premised on equality’ – is lawful no matter how sexually explicit. Speech treating women in the disapproved way – as submissive in matters sexual or as enjoying humiliation – is unlawful no matter how significant the literary, artistic, or political qualities of the works taken as a whole. The state may not ordain preferred viewpoints in this way. The Constitution forbids the state to declare one perspective right and silence opponents” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis).

The case continues to discuss whether or not the law is constitutional because it protects people from the implications of the speech. Some amici argues in this case that pornography is not an idea; pornography is the injury. The case examines both the injury to society, and the injury to the woman in the disputed pornography. In the first, it says that though it may cause “harm” in society, doesn’t all speech carry these same consequences? “Sexual responses are often unthinking responses, and the association of sexual arousal with the subordination of women, therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover… People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to permit government regulation, that would be the end of freedom of speech” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). Such a construction for the regulation of speech, as the justices point out, would lead to governments ability to easily discriminate based on the content of the speech.

For the actual harm that the speech puts on women in the movies, the opinion states that more often than not, the harm isn’t real. “The more immediate point, however, is that the image of pain is not necessarily pain” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). The last argument that could potentially justify the regulation of this type of speech is the argument that it is “low value” speech, ranking with obscenity, which the Supreme Court has allowed to be regulated. However, the court argues that some “pornography” has high value. “True, pornography and obscenity have sex in common. But Indianapolis left out of its definition any reference to literary, artistic, political or scientific value” (American Booksellers Association v. William H. Hudnut, III, Mayor, City of Indianapolis). The court, however, argues that the fact that no such mention was made represents the creation of a state-sponsored point of view, which goes against the first amendment.

The Supreme Court, in Wisconsin v. Todd Mitchell, played with the idea of whether the first amendment is breached in cases of discrimination, where only bigoted thought is punished and no others. This case arose because Todd Mitchell and his friends decided to beat a white boy, leaving him unconscious, and in a comma for four days. Mitchell was prosecuted, and given a penalty enhancement based on the fact that the victim was selected on the basis of race.

Though the Wisconsin Supreme Court ruled that the statute was unconstitutional for punishing what “the legislature has deemed to be offensive thought,” the court disagreed. It decided that such an enhancement was constitutional. The court, consistent with other rulings, says that a physical assault is not a form of speech and can therefore be regulated. “A physical assault is not by any stretch of the imagination expressive conduct protected by the first amendment” (Wisconsin v. Todd Mitchell). Thus, like other rulings, “speech” that causes harm cannot be protected by the first amendment. Also, the court argues, the state is right to inflict a greater punishment on these crimes generated from bigoted beliefs, because such crimes backed by these beliefs generate retaliatory action and the imposition of harm on other parties. “The Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the state and its amici, bias-motivated crimes are likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest” (Wisconsin v. Todd Mitchell).

In Hustler Magazine and Larry C. Flint, Petitioners, v. Jerry Falwell, the Supreme Court faced yet another first amendment dilemma. The magazine, in a parody, portrayed Jerry Falwell, a controversial preacher, as a drunk and immoral. They made up an interview with him about his “first time,” which he said was with his mother in an outhouse. Falwell filed suit, claiming libel and the infliction of emotional distress. The initial jury ruled in favor of Falwell on the infliction of emotional damages, awarding him $100,000 in compensatory damages. However, they ruled against him in libel, saying that the ad could not be reasonably construed as fact.

The respondent wanted the court to find that the state should protect him from having to suffer emotional distress for “speech that us partially offensive and intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved,” the case says. However, it overturned the “emotional harm” statute, making it illegal to sue based on the fact that speech caused emotional distress. The court ruled this way because, again, it wanted to prevent against the regulation of the content of speech. Who decides what is emotionally injurious is usually the person that is injured, making anything said against him able to be regulated. This is also consistent with the previous rulings discussed in that it refuses to regulate something intended for emotional harm. However, it will step in and allow regulation of speech that carries bodily harm or threat of bodily harm. Something that is emotionally hurtful comes nowhere near this constitutional standard set by the Supreme Court.

In conclusion, thought the cases brought before the court have been diverse, the court has maintained its precedent, set by judgments of the past. One can reasonably expect that the court will continue to uphold its basic precedent as the cases continue. The court will continue to support the virtues of free speech, no matter the content, unless this speech creates bodily harm or the threat of bodily harm.

by Juan Forrer