The Supreme Court has defined some categories of speech as unprotected, such as fighting words or incitement, because the value of free speech is superseded by a compelling public interest in preventing violence.
Hate speech, however, despite its possible potential to inflict deep offense or psychological damage, remains a protected domain of speech. Skokie, R. A. V, and Virginia all uphold the protected nature of hate speech.
Free Speech and Racism: National Socialist Party v. Skokie
In the late 1970s, American Nazis threatened to march in Skokie, Illinois, a community with many Holocaust survivors. Skokie, aiming to prevent the Nazis from legally marching, passed several ordinances which ultimately were overturned in National Socialist Party v. Skokie (1977).
It was determined that the display of the swastika does not constitute “fighting words;" as the District Court argued, “it is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear."
Rhetoric, though perhaps venomous, is not considered to be harmful enough that it is worth sacrificing the freedom of speech. Moreover, regulation of speech involves the risk that, now or later, the wrong speech will be censored.
Defending the Marketplace of Ideas: R. A. V. v. City of St. Paul
The Supreme Court revisited hate speech in R. A. V. v. City of St. Paul (1992), striking down St. Paul’s Bias-Motivated Crime Ordinance, which criminalized any symbol or illustration that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."
A teenager had been convicted of this offense after burning a homemade cross on the lawn of his African-American neighbors. Justice Scalia, writing the majority opinion, notes that “the First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed."
This case emphasizes a rejection of content discrimination: “the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects." This is a clear defense of the marketplace of ideas.
Dissenters explicitly rejected this philosophy, contending that in “characterizing fighting words as a form of ‘debate’, the majority legitimates hate speech as a form of public discussion."
Free Speech and Cross Burning: Virginia v. Black
Virginia v. Black (2003) addressed Virginia’s statute against cross burning. The Supreme Court determined that Virginia’s statute against cross burning done with an attempt to intimidate was constitutionally permissible, but that its provision that cross burning is prima facie evidence of an intent to intimidate was unconstitutional.
Justice O’Connor writes that “the act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech."
Virginia expands the boundaries of legal speech to allow even cross-burning, an act that dissenter Justice Thomas argues “instills in its victims well-grounded fear of physical violence," as long as it aims to express a message, not a threat.
According to the Supreme Court, the freedom of speech outweighs the potential fear it may invoke in others.
Balancing Free Speech and Hate Speech
Hate speech often resembles an other-regarding act. Certainly people in each of the previous cases were offended, perhaps severely distressed, by the speech or expression they witnessed.
However, the court’s decisions arguably accurately balance the overriding need for free discourse in the marketplace of ideas against the insult people inevitably experienced.
Free speech invariably involves the risk of encountering unfavorable or offensive opinions, but this is a small cost in comparison to the risk involved in allowing the government to decide what is acceptable.
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Sources
Gerald Gunther , Kathleen M. Sullivan.Constitutional Law. University Casebook Series. 2007.
John Stuart Mill, ‘On Liberty’ and Other Writings. Cambridge Texts in the History of Political Thought, 1998.
Rebekah Richards - Rebekah Richards has published fiction and nonfiction in the Atlanta-Journal Constitution, Brandeis Law Journal, Where the Children Play, ...
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