Setting aside an area to exercise our 1st amendment rights is not what the writers of the Bill of Rights had in mind.
|“||Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.||”|
By Jarrod F. Reich
The U.S. Supreme Court has yet to address the issue of hate speech on the Internet. Nor have many federal or state courts ruled on the issue. But it is important to remember that the courts’ rulings in other hate-speech cases are still controlling for future hate-speech cases no matter in which medium they occur, including the Internet.
To borrow from the late Justice Potter Stewart’s remark about obscenity, we may not be able to describe or classify hate speech accurately, but “we know it when we see it.” Mainstream America collectively shudders when it hears racial, anti-Semitic, homophobic, or other derogatory comments aimed at racial or religious minorities or other groups, but the question is: Can we stop it without stepping on people’s First Amendment rights? Even if so, how could it be stopped on the Internet?
Some have argued that racial and ethnic epithets are types of speech that, like “fighting words” (as articulated in Chaplinsky v. New Hampshire in 1942), seem to have “no redeeming value,” can incite violent retaliation, and thus should not enjoy First Amendment protection and can be regulated with no risk of infringing First Amendment rights.
But who decides what is offensive and, moreover, what is offensive enough to be called “hate speech”? Could legislation be drafted that would adequately bar hate speech without being either underinclusive (still allowing some hateful speech) or overbroad (banning protected speech)?
The Supreme Court has not been extremely receptive to hate speech regulation. It has said that such regulation should be “strictly scrutinized” to ensure that it does not prohibit protected speech.
The legacy of the Chaplinsky “fighting words” doctrine as it might be applied to hate speech has evolved into a “speech” vs. “action” dichotomy, as discussed in the following four cases.
Brandenburg v. Ohio: In this 1969 case, the Court explained its modern incitement test, whereby speech does not create the classic “clear and present danger” to citizens unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The case centered around a videotaped and broadcast news piece on an Ohio Ku Klux Klan rally, wherein the viewer could hear racial and anti-Semitic epithets (such as “Freedom for the whites” and “Send the Jews back to Israel”) uttered in the background of the newscast. Although not a “hate speech” case per se (it dealt with an alleged violation of a state criminal syndicalism statute), Brandenburg’s per curiam opinion (all justices writing the opinion in agreement together) made clear that for non-obscene speech to be proscribed by the First Amendment, it must lead to “imminent lawless action.” The Court ruled there was no such imminence in Brandenburg because the epithets were spoken at an earlier time than they were received by its audience because of the television broadcast.
National Socialist Party v. Skokie: This famous 1977 case centered on the efforts of residents of the predominantly Jewish town of Skokie, Ill., to prevent the National Socialist of Nazi Party from holding a planned demonstration there. The Supreme Court denied the residents’ attempts to block the march, because to do so, it said, “albeit reluctantly,” would suppress the Nazis’ First Amendment rights. Said the Court: “[A]nticipation of a hostile audience [cannot] justify the prior restraint ... . [I]t is [the] burden of [Skokie residents] to avoid the [offensive march] if they can do so without unreasonable inconvenience.” The Court held, then, that the speech itself, although hateful, could be avoided.
R.A.V. v. City of St. Paul: In this 1992 case, the city of St. Paul, Minn., enacted an ordinance that banned the placing on public or private property “a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The plaintiff in this case was arrested for violating this ordinance by placing a burning cross on the front lawn of an African-American family’s house. The Court held the ordinance invalid because it was both overbroad and inderinclusive, and that it even went so far as to constitute viewpoint discrimination. The Court reasoned that “the First Amendment does not permit [a government] to impose special prohibitions on those speakers who express views on disfavored subjects.” The Court considered that it was overbroad in that any such speech used by “proponents of all views” whatever its context would be prohibited. It was underinclusive in that it did not proscribe all fighting words — homophobic epithets and “aspersions about one’s mother” would be allowed under the statute. The Court therefore suggested in this case that any anti-hate crime statute would be presumed unconstitutional and therefore be strictly scrutinized on the grounds that it would be underinclusive, overbroad, and/or constituting viewpoint discrimination.
Wisconsin v. Mitchell: The Supreme Court solidified a speech/action distinction in this 1993 case. The case concerned black youths who had been convicted under a hate-crime statute after severely beating a white person because they were incensed by racist depictions of the movie “Mississippi Burning,” which they had watched. The Wisconsin Supreme Court overturned the convictions on the basis of R.A.V., because their actions constituted “offensive [yet protected] thought.” The Supreme Court reversed the state decision, saying that there was a difference between speech and conduct. “Whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., “speech” or “messages”), the statute in this case is aimed at conduct unprotected by the First Amendment,” the high court said.
The Mitchell court thus seemed to suggest that “hate speech” remains a conundrum: The only way it can be prohibited is if the statute that does so is “content-neutral” — yet the point of proscribing hate speech in the first place is to proscribe the content of the speech.Perhaps the seminal case on the speech-conduct distinction vis a vis the Internet is Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists.
This 2001 case involved the “Nuremberg Files” Web site run by the American Coalition of Life Activists. The names and home addresses of abortion doctors were posted on the site, then crossed out or turned gray if the doctors were killed or wounded by anti-abortion zealots. The “Nuremberg Files” site did not explicitly threaten the doctors, but the ACLA lauded and perhaps encouraged the killings.
Some of the doctors whose names appeared on the list sued the ACLA on grounds that, among other things, the speech on the Web site “robbed the doctors of their anonymity and gave violent anti-abortion activists the information to find them” and praised the slaying/injuring of the doctors on the list. The doctors said this speech hurt them in that it constituted “true threats” against them.
Although not a “hate speech” case per se, the case sheds some light on how courts may handle such a case in the future. The U.S. Court of Appeals for the 9th Circuit held that the ACLA’s speech on the Web site was constitutionally protected by the First Amendment. The court said that there was no “imminence” as required since Brandenburg to prove a danger, and that “advocating illegal action at some indefinite future time is protected [by the First Amendment]. If the First Amendment protects speech advocating violence, then it must also protect speech that does not advocate violence but still makes it more likely,” the 9th Circuit court said.
Further, the court noted that the ACLA did not urge its members to commit the violence or have anyone commit the violence on the ACLA’s behalf. “While pungent, even highly offensive, ACLA’s statements carefully avoided threatening the doctors with harm in the sense that there are no ‘quotable quotes’ calling for violence,” the court held. A generalized implied threat (by giving those who would commit heinous acts the information required for committing them), the court said, could not be suppressed without violating the First Amendment.
The “Nuremberg Files” site, the 9th Circuit concluded, “cannot fairly be read as calling for future violence against several hundred other doctors, politicians, judges, and celebrities on the list; otherwise any statement approving past violence could automatically be construed as calling for future violence.”
Speak No Evil?
Surprisingly, Anthony Lewis isn't the only civil libertarian thinking along these lines. Gene Policinski, the vice-president and executive director of the Tennessee-based First Amendment Center, says there's a chance that the courts will pay closer attention to extreme anti-Obama speech than they have to speech regarding previous presidents. "I think there's great concern, since he's the first African-American president," says Policinski. "And given our history of violence directed at African-Americans — particularly those who stand out by challenging the status quo — the courts may see these kinds of expression in a much more serious and immediate way."
NOT SEEN ON TV: Were anti-hate-speech strictures to tighten, there would be less leeway for political protest or satire — namely, films like the British mockumentary Death of a President (above).
But altering free-speech protections out of concern for Obama could have devastating implications for our collective right to criticize political authority.
The ancillary effects of such a hypothetical expansion also need to be considered. New restrictions on anti-Obama speech could legitimize paranoid conservative fears that Obama plans to silence his opponents, for example — thereby exacerbating anti-Obama animus. Consider, too, that by making hateful attitudes known, the First Amendment allows society to respond in kind. "The theory of the First Amendment actually makes a lot of social sense," notes Silverglate. "It's very useful to know who wants to hang the Jews and the blacks." Penalize the ugliest anti-Obama speech, and this benefit vanishes.
If you're an Obama booster who thinks concern for his safety might justify even an incremental erosion of free speech, ask yourself: did Checkpoint and Death of a President bother you at the time? Do they bother you now? (Be honest.) And how would you feel if — four or eight years from now — expanded limits on speech that originated during an Obama administration led to the censorship of texts deemed too threatening to, say, President Sarah Palin?
"We need to have historical humility," says Nadine Strossen, the former president of the American Civil Liberties Union and a professor at New York Law School. "Each era tends to have historical hubris — 'This is the greatest danger ever posed to the values we hold most dear.' We tend always to exaggerate the danger — and to unnecessarily cut off civil liberties."
Warsaw Community High School officials say the method in which the school's "Young Americans for Liberty" approached holding a proposed demonstration Tuesday expressing their concerns with Barack Obama's policies violated school policy.
The purpose of the demonstration was to put the Constitution information booklet in student's hands so they could see government had a rule book.
"The goal was to basically peel back the marketing of what Obama's so-called change is, and we wanted to expose to students that everything he says in his commercials and what you hear in the media might not necessarily be true," Austin Brenneman said.
"Young Americans for Liberty" is the continuation of Ron Paul's youth campaign, Students for Ron Paul, and was officially endorsed Dec. 2 by Paul. The organization seeks to recruit, train, educate and mobilize students on the ideals of liberty and the Constitution.
"Although I understand it is school policy, I don't think it is the law, and I think it is violating my First Amendment right by prohibiting me from distributing these materials at the time I planned," Brenneman said.
more - Times Union
Ohio State's on FIRE
As the largest university in the nation, one could only hope that The Ohio State University would be an open canvas for academic and intellectual exchange, as well as a free zone for sharing opinions, ideas, and values. However, according to the Foundation for Individual Rights in Education (FIRE), Ohio State is preventing such an open environment from existing. According to its website, TheFIRE.org, FIRE works to "defend and sustain individual rights at America's colleges and universities." Some of the rights mentioned are freedom of speech, due process, and legal equality, "the essential qualities of individual liberty and dignity." Unfortunately, Ohio State has earned a "red-light" classification from FIRE, identifying the school as having at least one policy which violates freedom of speech.
In support of the red-light classification, FIRE specifically identified the university's "Diversity Statement" as a clear violation of freedom of speech. Selected in September of 2007 as FIRE's Speech Code of the Month, FIRE reported on the explicit regulations that are detailed in the Diversity Statement which, not only cross the line in terms of constitutionality, but are also self-defeating, if indeed they are meant to actually encourage diversity.The first grievance which FIRE cites is a section of the Diversity Statement which at the time read "Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc." Considering the ramifications of this instruction, it seems preposterous that only a year or two ago the university commanded that its student body refrain from joking about controversial matters. As FIRE points out, and as Ohio State students already know, joking in a certain manner about brash and seemingly offensive topics often diffuses tense situations and can aid in fostering understanding and communication between different students. Regardless of whether or not one agrees with OSU as to whether or not making jokes is a malevolent behavior, the policy still treads on first amendment rights. FIRE makes the point that "There is no exception to the First Amendment for ethnic jokes or dumb blonde jokes."
more - FIRE
Photography is Not a Crime. It's a First Amendment Right
Do police have the right to confiscate your camera?
In one word - NO!
Religious freedom at center of pot case
Arguing that he uses marijuana for religious reasons, a 48-year-old Mexico man has filed suit against the state and two law enforcement agencies, charging violation of his constitutional rights.
Hutchinson stated he is a member of the Religion of Jesus Church, which mandates the use of cannabis based on 12 tenets. These include the belief that cannabis "increases ability to feel the presence of God," helps conquer addiction to tobacco and alcohol, creates peace and "is a good thought-stimulating neuro-hormone," according to the Religion of Jesus Church Web site.
Hutchinson charges the agencies with violating his right to free exercise of his religion under the First Amendment of the U.S. Constitution and Section 3 of the Maine Constitution; violating the Freedom of Religion Restoration Act of 1993; violating his civil rights under the U.S. Code, false imprisonment, trespass, invasion of privacy and negligent and intentional infliction of emotional distress.
Hutchinson was indicted in November 2004 and charged with aggravated marijuana cultivation and the criminal forfeiture of an ATV alleged to have been used in the cultivation.
more - sunjournal
The Rutherford Institute Wins Court Victory for West Virginia Constitution Part's Right to Circulate Petitions at a State Park
ELKINS, W.Va. --Judge John Preston Bailey of the Northern District of West Virginia has ruled that a First Amendment lawsuit dealing with the right of a political group to circulate petitions and collect signatures at a state park can move forward. Officials with the West Virginia Division of Natural Resources (DNR), which manages and controls the park, had asked the court to dismiss the lawsuit. Filed in April 2008 by Rutherford Institute attorneys on behalf of members of the Constitution Party of West Virginia, the lawsuit poses a constitutional challenge to a ban on politics in West Virginia state parks.
"Americans have a First Amendment right to the freedom of political expression," stated John W. Whitehead, president of The Rutherford Institute. "We cannot allow the government to silence. We have a right to be heard."
A copy of the court's ruling is available here.
more - Rutherford Institute
In South Carolina, if state Senator Robert Ford has his way, it will be illegal to use profanity in public. He believes that citizens in violation should be subjected to fines and/or imprisonment, and of course, it's all about protecting the children:
Under the pre-filed bill, profanity could land you in jail for up to 5 years and/or cost you up to $5,000 in fines. Which words are exactly considered profane is still unclear, but the bill does have a list of qualifications for profanity including words or actions that are lewd, vulgar or indecent in nature.
Red State Eclectic
Fate of 1st Amendment
“We have enough political free speech in the U.S.,” a prominent civic leader of McHenry County said the other day.
That “enough” plus Congress’ flirting with the “Hate Speech” bill makes me wonder about the First Amendment’s fate.
Who should decide on the “enough” and the “hate” qualifiers when it comes to political discourse? The Government? No way! That’s precisely what the First Amendment protects against.
Only the people should rule on such matters.
For now, the Internet has settled the issue. It has shown that we need not amend the First Amendment. Overwhelming, opinionated, confusing, messy, you name it; the Internet is an unrestricted democratic forum of ideas.
While it lasts, the Republic is safe.
Unfortunately, the mainstream media, too, have decided that it carries “enough” political free speech. God bless the mainstream media’s innocence (or is it collaboration?)