Recent Articles The American Prospect - articles by author en Stealing First: The Rehnquist Court Gags on Free Speech <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p><font class="nonprinting"></font></p> <p><font size="+3">T</font>he prospect that Bill Clinton could name more than</p> <p>one new justice to the U.S. Supreme Court has caused celebration among those who</p> <p>feared for the fate of <i>Roe v. Wade</i>. The same prospect has significant</p> <p>implications for the first Amendment, which has also been hanging in a precarious</p> <p>balance since President Reagan and Bush have shifted the Court's center of</p> <p>gravity to the right. For while the nation's attention was absorbed by the</p> <p>decision at the end of the Court's 1991-1992 term upholding the restrictions on</p> <p>abortion enacted in Pennsylvania, the justices were at the same time deciding a</p> <p>less-noticed group of cases that are likely to have profound implications for</p> <p>the First Amendment. Not only did the justices tinker with some fundamental</p> <p>principles governing freedom of speech and the separation of church and state,</p> <p>but the surprising alliances and divisions among them foreshadow an uncertain</p> <p>future for several of those principles. At stake are such important issues as:</p> <p></p><ul><li>the extent to which hate speech can be restricted, if at all;</li> <p></p><li>whether criminal acts motivated by group hatred can be singled out for <p>sterner punishment than parallel acts that are not so motivated; </p></li> <p></p><li>what kinds of public places are available for demonstrations, leafletting, <p>or solicitations of money for religious and political causes; </p></li> <p></p><li>how much of a fee can be charged for holding parades and rallies;</li> <p></p><li>the degree to which the government may become involved with religion before <p>it violates the First Amendment's prohibition against an establishment of</p> <p>religion.</p></li></ul><p> The answers to these questions will be influenced not only by the nature of the</p> <p>cases and merits of the arguments presented to the Court in coming years but by</p> <p>the ideological predispositions and interpersonal dynamics of the justices.</p> <p>Justice Harry Blackmun warned last year that he was 83 and could not remain</p> <p>forever on a Court only one vote short of overturning <i>Roe v. Wade</i>. But</p> <p>replacing Justice Blackmun with a Clinton appointee will only maintain the</p> <p>Court's present philosophical makeup. For the Court to move toward a more</p> <p>vigorous invocation of the First Amendment, not to mention stricter adherence to</p> <p><i>Roe v. Wade</i>, one or both of the Court's two most senior members, Justice</p> <p>Byron White and Chief Justice William Rehnquist, will also have to leave, and</p> <p>the other relatively senior member, Justice John Paul Stevens, would have to be</p> <p>replaced by someone with more consistently liberal inclinations. </p> <p> If such personnel changes do not occur, and if the younger and newer justices</p> <p>remain on the Court for a considerable period of time, the risk remains that the</p> <p>narrowing of First Amendment doctrine set in motion or attempted this past term</p> <p>may be reinforced. That will depend in part on whether Chief Justice Rehnquist</p> <p>and Justice White continue, as they have for the two decades they have served</p> <p>together, to vote alike virtually all of the time and almost always uphold the</p> <p>position of the government against claims by individuals that First Amendment</p> <p>rights have been violated. Or will they, as they did in the St. Paul</p> <p>cross-burning case, more frequently vote to strike down a government restriction</p> <p>on speech? </p> <hr size="1" /><center><br /><a href="/subscribe/"><img src="/tapads/mini_subscribe.gif" border="0" alt="Subscribe to The American Prospect" /></a> <p></p></center><br /><hr size="1" /><p> Will Justice Stevens maintain his record of voting for a high wall of</p> <p>separation between church and state while swinging between supporting and</p> <p>opposing government restraints on freedom of speech? And will Justice Blackmun</p> <p>continue with the generally expansive view of the First Amendment he has taken</p> <p>in recent years, or could he regress to his early days on the Court, when he</p> <p>voted nearly always with his so-called "Minnesota twin," the</p> <p>conservative Chief Justice Warren Burger? </p> <p> Justice Clarence Thomas will most likely continue, as he has begun, to anchor</p> <p>the Court's extreme right wing, dissenting even when every other justice has</p> <p>recognized an individual right as against the state. He was the lone dissenter</p> <p>when the eight other justices held that a white murderer's mere membership in a</p> <p>racist organization (he had killed a white woman) could not be considered in</p> <p>sentencing him to capital punishment. Justice Antonin Scalia may well persist in</p> <p>alienating the more moderate members of the Court, with his combination of sharp</p> <p>words, Jesuitical logic, and seeming need to be different, while at the same</p> <p>time, and with some important exceptions, hewing to a hard majoritarian line.</p> <p>Will Justices Sandra Day O'Connor and Anthony Kennedy continue to walk in the</p> <p>middle of the road with respect to both freedom of speech and the separation of</p> <p>church and state, straying more often to the right than to the left, sometimes</p> <p>together and sometimes separately? And will Justice David Souter continue down</p> <p>the promising, independent path he has begun to take in First Amendment cases,</p> <p>somewhat more sure-footed regarding the Establishment Clause than with respect</p> <p>to freedom of speech? </p> <p> Clues to how these questions may be answered and how, as a result, important</p> <p>free speech and church-state issues may be resolved can be found in the First</p> <p>Amendment cases that were decided in May and June of 1992. </p> <p></p><hr /><p></p><h3>HATE SPEECH AMBIGUITY</h3> <p><i>R.A.V. v. St. Paul</i>, in which a so-called Bias-Motivated Crimes Ordinance</p> <p>was struck down, produced the most complicated set of opinions, whose effects</p> <p>will not be entirely clear until they have been tested in future cases. The</p> <p>justices left no doubt that burning a cross on somebody else's lawn can properly</p> <p>be punished as an act of trespass or assault, while all agreeing that the St.</p> <p>Paul law against hate speech and hate symbols was unconstitutional. Beyond</p> <p>that, there was no consensus and much ambiguity. </p> <p> A five-person majority, with Justice Scalia as their spokesperson, argued that</p> <p>the government may ban all so-called "fighting words"--a</p> <p>well-established doctrine of the Court that excludes from First Amendment</p> <p>protection speech having a direct tendency to provoke a fight--but it may not</p> <p>select for punishment only those "fighting words" that express a point</p> <p>of view of which it disapproves. This is what the majority believed the city of</p> <p>St. Paul had done. The other four justices were quite willing to let a city or</p> <p>state decide that within a category of expression, like fighting words, which</p> <p>was already beyond the protection of the First Amendment, some speech believed</p> <p>to be of greater social harm than other speech should be particularly singled</p> <p>out for criminal penalties. Their reason for striking down the St. Paul</p> <p>ordinance was their belief that it reached beyond fighting words to criminalize</p> <p>constitutionally protected speech, namely that which "causes only hurt</p> <p>feelings." Had the law been confined to the punishment of "race-based</p> <p>fighting words" and threats, it would have had their approval. </p> <p> The vehemence with which the concurring (only in the final judgment) opinions</p> <p>of Justices White, Blackmun, and Stevens took exception to Justice Scalia's</p> <p>opinion on behalf of the majority suggests that there may have been a subtext to</p> <p>this dispute. Although on the surface what was at issue was an ordinance</p> <p>directed only at verbal and symbolic expressions of group hatred, that law was</p> <p>known as the Bias-Motivated <i>Crimes</i> Ordinance (italics mine), and what</p> <p>the city had invoked it for in this instance was indisputably a criminal as well</p> <p>as a symbolic act. (It should be noted here that the defendant was also charged</p> <p>with, and found guilty of, assault --a conviction that was not appealed to the</p> <p>Supreme Court.) </p> <p> For those who favor more severe penalties for criminal behavior, like assault</p> <p>and battery, arson, or murder that is motivated by group hatred, than for</p> <p>equivalent run-of-the-mill crimes, there is a concern that if one reads between</p> <p>the lines of the majority opinion, one may find the basis for striking down such</p> <p>enhanced penalties. And whether the five justices who signed on to that opinion</p> <p>believe it or not, there are certainly other jurists and legal scholars who have</p> <p>argued that imposing greater punishment on bias-motivated crimes than on the</p> <p>same crimes if not caused by group hatred is just as much a violation of the</p> <p>First Amendment as St. Paul's content-based discrimination among fighting words</p> <p>that the majority condemned. This claim is based on the fact that the only way</p> <p>we know and can prove that a crime has been motivated by group hatred is if the</p> <p>perpetrator has given verbal or symbolic expression to such feelings. </p> <p> The four justices who took a different route to the conclusion that the St.</p> <p>Paul law was unconstitutional may well have shared the concerns of those who see</p> <p>in the majority opinion a potential basis for invalidating enhanced penalties</p> <p>for hate crimes as well as for hate speech. This is strongly suggested by some</p> <p>of the language of their concurring opinions, which in many ways read more like</p> <p>dissents. Justice Stevens, for example, had this to say: </p> <p><i>Conduct that creates special risks or special harms may be prohibited by</i></p> <p>special rules. Lighting a fire near an ammunition dump or a gasoline storage</p> <p>tank is especially dangerous; such behavior may be punished more severely than</p> <p>burning trash in a vacant lot. Threatening someone because of her race or</p> <p>religious beliefs may cause particularly severe trauma or touch off a riot...</p> <p>such threats may be punished more severely than threats against someone based</p> <p>on, say, his support of a particular athletic team. </p> <p> Yet it is not at all certain that the majority intended to, or would be</p> <p>inclined to, foreclose enhanced penalties for hate crimes. Indeed, one of the</p> <p>exceptions to the majority's disapproval of content-based discriminations that</p> <p>Justice Scalia said would be permissible would be a "prohibition of</p> <p>fighting words that are directed at certain persons or groups (which would be</p> <p><i>facially</i> valid if it met the requirements of the Equal Protection</p> <p>Clause)." If such discrimination would be allowed with respect to <i>words</i>,</p> <p>it would certainly be allowed with respect to criminal <i>acts</i>. On the</p> <p>other hand, one who favors enhanced penalties for hate crimes can legitimately</p> <p>feel uneasy about the "<i>if </i>it met the requirements of the Equal</p> <p>Protection Clause" caveat, wondering just what that means. </p> <p> Another serious ambiguity left by the <i>R.A.V. v. St. Paul</i> opinions is</p> <p>what the Court now considers to be punishable "fighting words." Prior</p> <p>to this decision, most analysts assumed that the Supreme Court's original 1942</p> <p>definition of "fighting words" as those which "by their very</p> <p>utterance inflict injury or tend to incite an immediate breach of the peace"</p> <p>had been amended by decisions in the 1970s that chopped off the first half of</p> <p>the definition and limited it only to words that "have a direct tendency to</p> <p>cause acts of violence by the person to whom, individually, the remark is</p> <p>addressed." Many observers also assumed that the contemporary reason for</p> <p>the Court's exclusion of fighting words from First Amendment protection is</p> <p>because they may provoke a fight, not because they are barren of ideas. </p> <p> Both of these premises have now been thrown into some doubt by contradictory</p> <p>statements, not among the various <i>R.A.V.</i> opinions but within the very</p> <p>same opinions. Justice White, for example, reiterates the current understanding</p> <p>of legal scholars that expression which "by its very utterance...causes</p> <p>only hurt feelings, offense, or resentment" or "anger, alarm, or</p> <p>resentment" does not constitute fighting words and is protected by the</p> <p>First Amendment. Indeed, that is why he and the other concurring justices found</p> <p>the St. Paul ordinance to be unconstitutionally overbroad. Yet at another point</p> <p>in his opinion, he objects vehemently to Justice Scalia's having characterized</p> <p>fighting words as a form of "debate" and asserts that in so doing "the</p> <p>majority legitimates hate speech as a form of public discussion." On the</p> <p>one hand, White maintains that speech that causes hurt feelings, offense,</p> <p>resentment, anger, and alarm is constitutionally protected but, on the other</p> <p>hand, suggests that all hate speech is beyond the pale. </p> <p> The majority opinion is no less self-contradictory. Justice Scalia, in his</p> <p>apparent desire to correct Justice White's assertion that "fighting words</p> <p>are not a means of exchanging views, rallying supporters, or registering a</p> <p>protest," reminds us that when the Court first declared fighting words</p> <p>outside the protections of the First Amendment, it was not because they were "<i>not</i></p> <p>part of the expression of ideas" but because they were "no <i>essential</i></p> <p>part of the expression of ideas....Sometimes," Justice Scalia</p> <p>perceptively observes, "they are quite expressive indeed." But then in</p> <p>attempting to justify their exclusion from the marketplace of ideas despite</p> <p>their expressiveness, he turns around and says they are "analogous to a</p> <p>noisy sound truck"--prohibitable not because of the ideas they convey but</p> <p>because of a "`nonspeech' element of communication." What he means by</p> <p>that is anybody's guess. He does not bother to explain it, and it is by no means</p> <p>self-evident, since it is surely the ideas expressed in fighting words ("You</p> <p>Fascist, racketeer, motherfucker, nigger, kike, honkie, fag," or whatever)</p> <p>that produce the problem society seeks (I think short-sightedly) to address</p> <p>through legal prohibitions. </p> <p></p><hr /><p></p><h3>THE UNEASY MAJORITY</h3> <p> Though Justices White and Scalia were at swords' points in the St. Paul case,</p> <p>with Chief Justice Rehnquist siding with the latter of his two usual allies, the</p> <p>three of them were back in unison, along with Justice Thomas, on all the other</p> <p>First Amendment matters decided by the Court at the end of its 1991-92 term.</p> <p>When they could entice Justice O'Connor or Kennedy, or both, from the middle of</p> <p>the road to their side, they had a majority. Otherwise, they were a dissenting</p> <p>foursome. </p> <p> The most radical success of these so-called conservatives was in persuading</p> <p>Justice O'Connor to join them in essentially rewriting public forum law. They</p> <p>were not satisfied with deciding that airport terminal buildings were too</p> <p>crowded or specialized a kind of public forum to accommodate the selling of</p> <p>literature by the Hare Krishna, as Justice Kennedy wanted to do in <i>International</i></p> <p>Society of Krishna Consciousness v. Lee. Instead, in an opinion written for</p> <p>the majority by the Chief Justice, the Court held that the only public</p> <p>properties that will be considered public forums and thus places where</p> <p>government restrictions on speech will be subject to the strictest First</p> <p>Amendment protection by the Court, are those that have as "a principal</p> <p>purpose...the free exchange of ideas" and have "immemorially" and</p> <p>"time out of mind" (quoting a 1939 Court opinion) "been held in</p> <p>trust and used for the purposes of expressive activity." Presumably this</p> <p>means only streets and parks, although, as Justice Kennedy pointed out, "It</p> <p>would seem apparent that the principal purpose of streets and sidewalks, like</p> <p>airports, is to facilitate transportation, not public discourse." </p> <p> Justice Kennedy was also deeply troubled by the majority's reliance on</p> <p>tradition as a determinant of what constitutes a public forum. As he put it so</p> <p>sensibly: </p> <p><i>One of the places left in our mobile society that is suitable for</i></p> <p>discourse is a metropolitan of the few government-owned spaces</p> <p>where many persons have extensive contact with other members of the public....We</p> <p>have allowed flexibility in our doctrine to meet changing technologies in other</p> <p>areas of constitutional interpretation...and I believe we must do the same with</p> <p>the First Amendment. </p> <p> As an alternative to the majority's vision, Justice Kennedy: </p> <p> <i>...would accord public forum status to other forms of property,</i></p> <p>regardless of its ancient or contemporary origins and whether or not it fits</p> <p>within a narrow historic tradition....The most important considerations...are</p> <p>whether the property shares physical similarities with more traditional public</p> <p>forums, whether the government has permitted or acquiesced in broad public</p> <p>access to the property, and whether expressive activity would tend to interfere</p> <p>in a significant way with the uses to which the government has as a factual</p> <p>matter dedicated the property. </p> <p> Justice Souter, in his dissenting opinion with respect to the selling of</p> <p>literature, embraced Justice Kennedy's criteria for determining whether a</p> <p>property should be considered a public forum. His impassioned objection to the</p> <p>majority's view was that it "has no warrant in a Constitution whose values</p> <p>are not to be left behind in the city streets that are no longer the focus of</p> <p>community life. If that were the line of our direction, we might as well abandon</p> <p>the public forum doctrine altogether." </p> <p> As already indicated, Justice Kennedy was willing to go along with the</p> <p>majority's conclusion that solicitations for money could be barred from an</p> <p>airport terminal, even though he believed it to be a public forum, because he</p> <p>thought there was a compelling interest in such a restriction that passed his</p> <p>strict scrutiny test. However, in a related case, <i>Lee v. International</i></p> <p>Society of Krishna Consciousness, Kennedy came down on the other side,</p> <p>concluding a ban against the distribution of <i>free</i> literature was</p> <p>unconstitutional. In his view, such activity interfered with pedestrian traffic</p> <p>less and did not involve the risk of the fraud and duress associated with the</p> <p>monetary transactions. </p> <p> Justice O'Connor turned the tables when she joined with Justice Kennedy in</p> <p>switching sides, and along with Justices Blackmun, Stevens, and Souter made up a</p> <p>majority to strike down this prohibition. Although she did not consider airport</p> <p>terminals a traditional public forum whose restrictions are subject to the</p> <p>strictest scrutiny, this did "not mean that the Government can restrict</p> <p>speech in whatever way it likes....restrictions in nonpublic fora are valid only</p> <p>if they are `reasonable'." And because, in this case, "the Port</p> <p>Authority is operating a shopping mall as well as an airport," she felt</p> <p>that, though the ban on money transactions was reasonable, the prohibition</p> <p>against non-monetary solicitations was not. </p> <p> Justice Souter, as we have seen, joined by Justices Blackmun and Stevens, not</p> <p>only regarded the airport terminal as a public forum in which restrictions on</p> <p>speech were to be judged with the strictest scrutiny but concluded that the</p> <p>bans on both non-monetary and monetary solicitations failed the test. </p> <p><font size="+3">I</font>n the other case affecting public forum law--a case</p> <p>that was heard before Justice Thomas was confirmed--the Court decided 5-3 that a</p> <p>Tennessee law prohibiting the solicitation of votes and the distribution of</p> <p>campaign literature within 100 feet of the entrance to a polling place did not</p> <p>violate the First Amendment. In <i>Burson v. Freeman,</i> only Justice Scalia</p> <p>believed that the streets and sidewalks outside of a polling place are not a</p> <p>public forum and that therefore strict scrutiny of the Tennessee law was not</p> <p>required. From that premise he found it easy to conclude that the restriction at</p> <p>issue was reasonable. </p> <p> All four of the other justices in the majority, as well as the three</p> <p>dissenters, agreed that such streets and sidewalks are a public forum and that</p> <p>the speech that was banned was "classic political expression" entitled</p> <p>to the strongest possible First Amendment protection. Their disagreement was</p> <p>only over whether the 100-foot restriction passed muster as one that served a</p> <p>compelling interest and was narrowly drawn to serve that interest. Justices</p> <p>Rehnquist, White, Blackmun, and Kennedy thought that it did. Justices Stevens,</p> <p>O'Connor, and Souter thought it did not, calling attention to the many states</p> <p>that are able to preserve the integrity of their electoral process with</p> <p>forbidden zones of 50 feet or less. </p> <p> Notably, in this case, Justices Blackmun and O'Connor came down on the opposite</p> <p>sides from their Hare Krishna book-selling opinions. Justice Blackmun thinks</p> <p>there is a more compelling interest in keeping political campaigners 100 feet</p> <p>away from a polling place than in keeping the Hare Krishna from selling their</p> <p>literature in airport terminals. Justice O'Connor thinks it is more reasonable</p> <p>to prohibit the latter than to ban the former. </p> <p> All of this leaves public forum law in an uncertain state of affairs. Four</p> <p>justices--Rehnquist, White, Scalia, and Thomas--are likely to uphold almost any</p> <p>restriction on speech, beyond the streets and parks. Three justices--Souter,</p> <p>Stevens, and Blackmun--will usually view such restrictions with the greatest of</p> <p>suspicion. One justice--Kennedy--holds a generous view of what constitutes a</p> <p>public forum but a somewhat tolerant view of the kinds of restrictions for which</p> <p>the government might find a compelling interest. And one justice--O'Connor--has</p> <p>a narrow view of what constitutes a public forum but a rather tough-minded</p> <p>attitude as to the limitations on speech that can be imposed there, and a</p> <p>willingness to apply somewhat rigorous standards even to the kinds of</p> <p>restrictions that are reasonable on other kinds of public property. Thus the</p> <p>rule of thumb on the use of public property for expressive activity is this: as</p> <p>Justices Kennedy and/or O'Connor go, so will go the Court. </p> <p></p><hr /><p></p><h3>SPEECH FOR SALE</h3> <p> Public forum law is not the only aspect of the First Amendment that is now</p> <p>essentially in the hands of Justices Kennedy and O'Connor. In two other</p> <p>significant First Amendment cases decided in June of 1992 (as well as in the</p> <p>Pennsylvania abortion decision), they joined with Justices Blackmun, Stevens,</p> <p>and Souter to stave off the assault on major Court precedents (like <i>Roe v.</i></p> <p>Wade) by the Rehnquist-White-Scalia-Thomas foursome. </p> <p> The first of these two cases, <i>Forsyth County v. Nationalist Movement</i>,</p> <p>raised anew the question of how free, in a monetary sense, is freedom of speech.</p> <p>Although the Court, for half a century, has allowed local governments to charge</p> <p>relatively modest fees for permits to hold parades or rallies, it has been a</p> <p>firmly established principle that laws requiring such permits must not be</p> <p>discretionary--that is, they must not leave to those who issue the permits the</p> <p>power to discriminate among applicants on the basis of the content or viewpoint</p> <p>of their speech. And although the Court had never ruled definitively that the</p> <p>fee had to be nominal, it was implicit in the principle of nondiscrimination</p> <p>that applicants could not be charged a large sum just because their</p> <p>demonstration might require a sizeable number of police to protect them from an</p> <p>anticipated hostile audience. </p> <p> When confronted with the Forsyth County, Georgia ordinance that allowed county</p> <p>officials, at their discretion, to charge up to $1,000 a day for parades or</p> <p>open-air public meetings, the U.S. Circuit Court of Appeals for the 11th Circuit</p> <p>struck it down on the basis of what they assumed to be the Supreme Court</p> <p>precedents governing such matters. But Chief Justice Rehnquist et al. wanted to</p> <p>reverse that decision because they felt there was nothing in past precedents</p> <p>that limited a local government to charging only a nominal fee and that there</p> <p>was no evidence in the record of the case before them to indicate that the</p> <p>ordinance had, in practice, been utilized in a discriminatory way. </p> <p> Happily, Justices O'Connor and Kennedy joined with Justices Blackmun, Stevens,</p> <p>and Souter to constitute a majority rejecting that view. Although avoiding the</p> <p>question of whether a permit ordinance could require more than a nominal charge,</p> <p>they vehemently reaffirmed the principle that its implementation could not be "left</p> <p>to the whim of the administrator" and that it could not "depend on the</p> <p>administrator's measure of the amount of hostility likely to be created by the</p> <p>speech based on its content." Said Justice Blackmun for the majority, "Speech</p> <p>cannot be financially burdened, any more than it can be punished or banned,</p> <p>simply because it might offend a hostile mob." </p> <p><font size="+3">F</font>ew expected the same five justices to form a</p> <p>majority in <i>Lee v. Weisman</i>. Justice Souter was an unknown because this</p> <p>was his first establishment-of-religion case. But most analysts expected</p> <p>Justices Kennedy or O'Connor, or both, to be on the other side, based on their</p> <p>earlier votes and opinions in cases involving the use of peyote in Native</p> <p>American church rituals and religious displays at public buildings during the</p> <p>Christmas season. <i>Lee v. Weisman</i> raised the specific question of whether</p> <p>the delivery of religious invocations and benedictions by members of the clergy</p> <p>at public middle school and high school graduation ceremonies violated the First</p> <p>Amendment. The larger question, however, was whether the Court, as the fearsome</p> <p>foursome wanted to do, would overturn a two-decade old precedent that for a</p> <p>government practice or law to avoid violating the establishment-of-religion</p> <p>clause of the First Amendment, it has to "(1) reflect a clearly secular</p> <p>purpose; (2) have a primary effect that neither advances nor inhibits religion;</p> <p>and (3) avoid excessive government entanglement with religion." These</p> <p>principles were enunciated in a landmark 1971 decision called</p> <p><i>Lemon v. Kurtzman</i>, in which the Court invalidated the use of taxpayers'</p> <p>money to help pay the salaries of parochial school teachers. </p> <p> Justice Kennedy, in the majority opinion, politely declined the dissenters'</p> <p>invitation to revisit the so-called <i>Lemon</i> tests--an invitation initiated</p> <p>not only by the petitioner in the case but by the Bush administration's</p> <p>friend-of-the-court brief. To the majority, "The government involvement</p> <p>with religious activity in this case" was so "pervasive" and "the</p> <p>potential for divisiveness" so apparent that by any measure, <i>Lemon</i></p> <p>or otherwise, it had to be prohibited. As for the contention of the petitioner</p> <p>and government</p> <p><i>amicus</i> brief, supported by the dissenters, that there is nothing</p> <p>coercive about a situation in which students have a choice of sitting in silence</p> <p>during the prayer or not attending the graduation ceremony, Justice Kennedy's</p> <p>reply was that "the argument lacks all persuasion. Law reaches past</p> <p>formalism. And to say a teenage student has a real choice not to attend her high</p> <p>school graduation is formalistic in the extreme....Everyone knows that in our</p> <p>society and in our culture high school graduation is one of life's most</p> <p>significant occasions. A school rule which excuses attendance is beside the</p> <p>point." </p> <p> The dissenting opinion was Justice Scalia at his nastiest. He characterizes the</p> <p>majority's view that there is psychological pressure on teenagers to attend</p> <p>their graduations and subtle coercion in having to sit or stand through a prayer</p> <p>that is not theirs as a "psycho-journey" with "psychology</p> <p>practiced by amateurs." The Kennedy opinion, says Scalia, "lays waste</p> <p>a tradition that is as old as public-school graduation ceremonies</p> <p>themselves....As its instrument of destruction, the bulldozer of its social</p> <p>engineering, the Court invents a boundless, and boundlessly manipulable, test of</p> <p>psychological coercion." Continuing on his tradition hang-up, Justice</p> <p>Scalia maintains that "the history and tradition of our Nation are replete</p> <p>with public ceremonies featuring prayers of thanksgiving and petition....George</p> <p>Washington deliberately made a prayer a part of his first official act as</p> <p>President....Thomas Jefferson...prayed in his first inaugural</p> <p>address....Similarly, James Madison....Most recently, President Bush...made a</p> <p>prayer his first official act as President." Perhaps, snarls Justice</p> <p>Scalia, "the next project for the Court's bulldozer" will be the</p> <p>Pledge of Allegiance. </p> <p> This was too much for Justice Souter. Perhaps he felt that history, too, should</p> <p>not be practiced by amateurs. In a separate opinion concurring with the majority</p> <p>(though he signed on to the Kennedy opinion as well), joined by Justice Stevens</p> <p>and, significantly, Justice O'Connor, Justice Souter reviews with scholarly</p> <p>precision the history of the Establishment Clause and the separationist beliefs</p> <p>and practices of the Founding Fathers. Directly countering Justice Scalia's</p> <p>examples, he notes that "President Jefferson...steadfastly refused to issue</p> <p>Thanksgiving proclamations of any kind, in part because he thought they violated</p> <p>the Religion clauses," and that "during his first three years in</p> <p>office, James Madison also refused to call for days of thanksgiving and prayer." </p> <p> It may be that Justice O'Connor joined Justice Souter's opinion not only</p> <p>because it struck back so artfully at Justice Scalia, whose sharp words have so</p> <p>often been directed at her but also because it parted company somewhat from</p> <p>Justice Kennedy (who did not join the opinion). She has had a difference in the</p> <p>past with Justice Kennedy, not yet been resolved by a Court majority, on whether</p> <p>there must be a religiously coercive element in a government practice for it to</p> <p>violate the Establishment Clause. Justice Kennedy has said he thinks there must</p> <p>be, but he did not press the point in <i>Weisman</i> because he felt that</p> <p>coercion was obviously present. Justice Souter, in contrast, now makes clear</p> <p>that he, like Justice O'Connor (and Justice Stevens), believes coercion need not</p> <p>be present for there to be a violation of the separation of church and state;</p> <p>that it is enough if the government has appeared to</p> <p><i>endorse</i> religion. </p> <p> Why Justice Blackmun did not also join the Souter opinion and why Justice</p> <p>Souter did not join Justice Blackmun's separate concurring opinion is not at all</p> <p>clear, since Justice Blackmun also agrees that coercion is not necessary and</p> <p>endorsement is sufficient to violate the First Amendment, and since Justices</p> <p>Stevens and O'Connor joined with both. Although there is nothing incompatible</p> <p>between the two opinions, one significant element in Justice Souter's is absent</p> <p>from Justice Blackmun's, and that may be the explanation. Referring to a 1947</p> <p>Court precedent, Justice Souter says "the Establishment Clause forbids not</p> <p>only state practices that `aid one religion...or prefer one religion over</p> <p>another,' but also those that `aid all religions'....the Establishment Clause</p> <p>forbids state-sponsored prayers in public school settings no matter how</p> <p>nondenominational the prayers may be." Although it is hard to believe that</p> <p>Justice Blackmun, or anyone else who understands the reasons for maintaining a</p> <p>separation of church and state, would find that principle objectionable, it</p> <p>seems to be the only real difference between the two opinions. </p> <p> Whatever the case may be, there are still only four firm votes (Justice Kennedy</p> <p>excluded) for the position that a coercive element need not be present for a</p> <p>religious activity sponsored or supported by the state to be violative of the</p> <p>First Amendment. At best, then, this is a modest victory for the separation of</p> <p>church and state. If greater victories are to be won on this, or any of the</p> <p>other First Amendment issues we have explored here, it may depend on how much</p> <p>the hard line of Justice Thomas and the sharp words of Justice Scalia offend the</p> <p>moderate temperaments of Justices O'Connor and Kennedy and drive them to the</p> <p>opposing side. </p> <p></p><hr /><p></p><h3>FORTIFYING THE FIRST AMENDMENT</h3> <p> All of this can, of course, change dramatically if the former professor of</p> <p>constitutional law, Bill Clinton, has the opportunity to name replacements not</p> <p>only for Justice Blackmun but for one or more of the other justices. Before the</p> <p>election, Clinton said that a primary criterion for such selections will be a</p> <p>commitment to the Bill of Rights, and he specifically mentioned freedom of</p> <p>speech and separation of church and state. </p> <p> Assuming that Clinton gets that chance, what might proponents of freedom of</p> <p>speech hope for from such a Court? At the very least, the "fighting words"</p> <p>exception should once again be unequivocally limited to speech that provokes</p> <p>violence from the individual to whom it is personally addressed. Far better</p> <p>would be to abandon the exception altogether and punish only those who swing the</p> <p>first fist and not those who hurl the last epithet. But even under the former</p> <p>and less radical alternative, which the Supreme Court for more than twenty years</p> <p>has felt to represent an adequate balance between freedom of speech and social</p> <p>order, most of the hate speech incidents that occur, whether on or off the</p> <p>college campuses, would be protected by the First Amendment, as they should be.</p> <p>That is so because most of the time those hateful messages are addressed to the</p> <p>world at large, through posters, the display of symbols, or utterances to third</p> <p>parties, rather than by words directed to the target in face-to-face</p> <p>confrontations where the victim is either likely to respond, or capable of</p> <p>responding, by starting a fight. </p> <p> Enhancing a penalty for criminal behavior because it was motivated by group</p> <p>hatred poses difficult questions about which strong supporters of freedom of</p> <p>speech can and do differ. Some view it as a serious intrusion on the First</p> <p>Amendment to punish such conduct more severely than a comparable</p> <p>run-of-the-mill crime because the evidence that a hate crime has been committed</p> <p>is necessarily derived from the perpetrator's beliefs and verbal expression of</p> <p>those beliefs. Others argue that hate crimes pose a greater danger to society</p> <p>than similar offenses that are not so motivated; heavier penalties are therefore</p> <p>justified despite, or even because of, the ideological underpinnings of the</p> <p>behavior. Thus a Supreme Court ruling one way or the other would not</p> <p>necessarily be viewed as a fundamental First Amendment error. </p> <p> The Court should expand, rather than contract, the kinds of public properties,</p> <p>paid for with my money and that of other taxpayers, that are regarded as public</p> <p>forums for speech. Justice Kennedy had it right when he said that the primary</p> <p>question should be "whether expressive activity would tend to interfere in</p> <p>a significant way with the uses to which the government has dedicated the</p> <p>property." Justice Thurgood Marshall said essentially the same thing two</p> <p>decades ago in a case involving the picketing of a school, <i>Grayned v.</i></p> <p>Rockford, when he wrote, for a majority of the Court, "The crucial</p> <p>question is whether the manner of expression is basically compatible with the</p> <p>normal activity of a particular place at a particular time." Unfortunately,</p> <p>the Court has since made it more complicated than that, and Kennedy, having</p> <p>started from such a desirable premise, was so willing to believe it to be</p> <p>violated by a handful of Hare Krishna selling their literature in a vast airport</p> <p>terminal. </p> <p> Justice Blackmun too had it right when he struck down Forsyth County's permit</p> <p>fee ordinance, saying that speech should not be "financially</p> <p>burdened...simply because it might offend a hostile mob." It is too bad</p> <p>that he and his colleagues in the majority chose not to accept the challenge of</p> <p>the dissenters to rule also on the question of whether fees for permits to</p> <p>engage in expressive activity must be kept at a nominal level. The dissenters</p> <p>insisted that they need not be, and perhaps the majority ducked that question</p> <p>because there were insufficient votes for declaring otherwise. It may be that a</p> <p>Clinton-altered Court will have the fortitude to do so. </p> <p> Finally, is it too greedy to wish for a day when the establishment-of-religion</p> <p>clause of the First Amendment will be more like the "wall of separation</p> <p>between church and state" that Thomas Jefferson envisioned and less like</p> <p>the wall that former Chief Justice Burger has dismissed as a mere "metaphor"?</p> <p>I lose no sleep over coins that say "In God We Trust" or members of</p> <p>the clergy giving their blessings to presidential inaugurations; I realize</p> <p>political pragmatism dictates that these traditions continue. But I take much</p> <p>more seriously Christmas nativity scenes on the property of public buildings</p> <p>(even if surrounded by a secular Santa Claus and reindeer), crosses on city or</p> <p>state-owned mountaintops or on the shoulder patches of police uniforms, and</p> <p>government vouchers that would pay tuition to attend parochial schools. If</p> <p>Justices O'Connor's and Souter's "endorsement test" proves</p> <p>insufficiently tough to flunk those practices, I would hope for new justices</p> <p>with the mortar to fill such chinks in Mr. Jefferson's wall. </p> <p><br /><br /><!-- dhandler for print articles --></p></div></div></div> Wed, 19 Dec 2001 19:10:47 +0000 141506 at Franklyn Haiman Setting Limits on Free Speech <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>&#13;<br /> &#13;</p> <p><font color="#004987" face="verdana, arial, trebuchet MS" size="3"><b><u>Rod Smolla's <i>Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book</i></u></b></font>&#13;<br /><br />&#13;<br /><font color="darkred" face="verdana, arial, trebuchet MS" size="2"><b>01.03.00</b></font><font color="black" face="verdana, arial, trebuchet MS" size="2"> | reviewed by Franklyn S. Haiman</font><br />&#13;</p> <p>Rod Smolla, a professor of law at the University of Richmond, is one of the country's most able and articulate First Amendment experts. In this engrossing narrative, he explains how and why- contrary to his pro-free-speech impulses and after much agonizing- he came to join a team of lawyers suing a book publisher for having aided and abetted a murder.&#13;<br /> &#13;<br /></p><p>&#13;<br /> &#13;<br /> The U.S. Supreme Court has yet to deal directly with the recent spate of free speech issues raised by extremely inflammatory messages, which these days are not just in books and peri odicals but also in cyberspace. The still-prevailing precedent for this kind of communication is its unanimous 1969 opinion involving a KKK rally in Ohio. The Court stated then, in Brandenburg v. Ohio, that provocative speech is protected by the First Amendment unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."&#13;<br /> &#13;<br /></p><p>&#13;<br /> &#13;<br /> During the three decades following that pronouncement, the Supreme Court has decided no case in which a defendant has been found to have crossed the Brandenburg line. But in the spring of 1998, it left standing, by its abstention, a U.S. Circuit Court of Appeals ruling that had found that boundary transgressed in the case Rod Smolla describes in Deliberate Intent. The Supreme Court thus implicitly allowed that there are indeed limits to what people of unsound judgment or dubious sanity may lawfully say or write.&#13;<br /> &#13;<br /></p><p>&#13;<br /> &#13;<br /> Rice v. Paladin Enter prises was technically a wrongful death suit for monetary damages against Paladin Press for its publication of Hit Man: A Tech nical Manual for Inde pen dent Contract ors, a volume containing in explicit and horrifying detail instructions on how to commit a contract murder. The plaintiffs were the families of a woman, her 8-year- old brain-damaged son, and his nurse, who had been murdered in a contract killing. The hit man, who had studied the book, was sentenced to death, and the ex-husband who had hired him was imprisoned for life. &#13;<br /> &#13;<br /></p><p>&#13;<br /> &#13;<br /> The decisive question for Smolla in deciding to represent these plaintiffs was whether Paladin Press had deliberately intended that some reader of Hit Man would actually follow the manual. For that there was abundant evidence, both circumstantial and testimonial, to convince him the answer was yes. But for many other First Amendment scholars, myself included, there is a second question that must also be answered affirmatively before they embrace a restriction on such speech: whether any book or other mass medium of communication addressed to the public at large and not directed to a particular target at a particular time and place can ever fail to qualify for First Amendment protection. My inclination is to say no. The reason is that there is simply no way that is compatible with freedom of speech and press to ensure, for example, that some psychologically disturbed person, by reading Hitler's Mein Kampf, necessarily available in any public library, will not be motivated to go out and kill Jews, or that some alienated teenager, viewing legitimate TV news coverage of the Colum bine High School massacre, will not attempt to copycat that crime. Those who commit such crimes of violence should be severely punished, but not the communicators of ideas or information that among a multitude of other possible causes may or may not have contributed, deliberately or otherwise, to the enactment of their deeds.&#13;<br /> &#13;<br /></p><p>&#13;<br /> &#13;<br /> Smolla has presented as compelling and eloquent a justification as I have ever read for "going over to the other side." Though his chilling story caused me to re-examine my own beliefs on this issue, as he so profoundly thought about his, it left me ultimately unconvinced. I suspect, however, that many other readers will side with Smolla and decide that even mass media messages should sometimes be punishable.&#13;<br /> &#13;<br /> &#13; </p> </div></div></div> Wed, 14 Nov 2001 22:09:01 +0000 140781 at Franklyn Haiman The Remedy is More Speech <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"> <p>The recent spate of incidents on college campuses involving the verbal expression of racist, sexist, anti-Semitic, and homophobic hatred has reignited a long-running debate in the history of free speech. Like flag burning, obscenity, and defamation of character, the derogation of people on the basis of their race, religion, or ethnicity -- known to the legal community as "group libel" -- has often been singled out as a candidate for exclusion from the protections of the First Amendment. Those who have urged curbs on group libel point out that the United States stands alone among the democracies of the world in tolerating such speech.</p> <p> The controversy over "hate" speech stirs some of our deepest emotions. How can a society that claims to be civilized, and sensitive to the feelings and interests of all its people, permit a group of neo-Nazis to march in Skokie, Illinois -- home to a large cluster of Holocaust survivors -- or allow programs by the Ku Klux Klan to be broadcast over a Kansas City public access television channel? How can universities, committed to equality of educational opportunity and reasoned discourse, permit a University of Connecticut student to post a sign on her dormitory room door announcing that "homos," among others, are unwelcome to her room and will be "shot on sight," or a drunken group of University of Illinois students to taunt Jewish fraternity members with the chant that "Hitler had the right idea"?</p> <p> Nearly half a century ago David Riesman, who later turned from law to sociology, wrote a classic series of articles in the <i>Columbia Law Review</i> arguing that group libel should not be considered legally protected speech (though he subsequently departed from that view with respect to the Skokie incident). A decade after the Ries-man articles, the U.S. Supreme Court, in a case involving the distribution of racist leaflets in Chicago (<i>Beauharnais v. Illinois</i>) upheld the constitutionality of an Illinois group libel law. That statute, however, was later removed from the books by the state legislature. By the time of Skokie in 1978, most courts, including the ones that decided the Skokie case, viewed restrictions on racially and religiously derogatory communication as violations of the First Amendment. Those decisions provoked a new round of writings in the early 1980s, such as a book by Donald Downs entitled <i>Nazis in Skokie,</i> and an essay by Richard Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," published in the <i>Harvard Civil Rights and Civil Liberties Law Review,</i> advocating that such speech be restricted. These were followed, at the end of the decade, by passionate appeals for regulation of racist speech from minority group law professors like Charles Lawrence at Stanford University and Maria Matsuda, writing in the <i>Michigan Law Review.</i></p> <p> Acting on such appeals, universities across the country -- from the University of Connecticut to the Universities of Michigan and Wisconsin to Stanford and the University of California system -- adopted group libel rules of various sorts. Some of these have been challenged and struck down by federal courts. Others remain the source of continuing controversy.</p> <p> Whenever our society and our legal system have accepted limitations on the seemingly unqualified mandate of the First Amendment that there shall be <i>no</i> laws abridging freedom of speech and press, it has been because of some perceived competing interest that overcomes our concern for freedom of expression, usually combined with the perception that the speech in question is of little or no social value. As the U.S. Supreme Court said in <i>Chaplinsky v. New Hampshire</i> in 1942: "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 a breach of the peace.... 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."</p> <p> Those who call for curbs on racist speech maintain that it is <i>both</i> without social value <i>and</i> seriously harmful to the people who are its targets as well as to society at large. It has no social value, they say, because it is patently false and not really a "part of any exposition of ideas." It is merely an act of harassment which, though clothed in words, functions more like a physical blow than an invitation to dialogue.</p> <p> The competing interests that outweigh the free expression of racism are said to be overwhelming. Racist speech may sometimes provoke violence, either against or from those subjected to it, leading to breaches of the peace that society has a right and responsibility to prevent. It may intimidate its targets into fearing for their physical safety, or it may create so much emotional distress for them that they are unable to function effectively as students, workers, or participants in whatever other environment they find themselves. Even short of such severe impairment, racist speech is still a psychological assault on self-esteem and personal identity, which no member of a community should have to endure.</p> <p></p><center>* * *</center> <p> The answers to these seemingly compelling arguments are many, and even more compelling. The view of racist slurs as equivalent to physical blows ignores some crucial differences. A physical blow will hurt, no matter what the victim's state of mind; a verbal attack will hurt only if comprehended. If uttered in a foreign language, or in euphemisms equally unfamiliar, it will do no damage, for its meaning will not have been understood. It is the meaning that hurts, which is another way of saying that not only has an idea been communicated, but a very powerful and hateful one at that. If no meaningful idea were involved, there would be no injury. </p> <p> It is internally contradictory to say that racist speech contains no ideas and has no value because it is false. A statement with no ideas cannot be false. Hitler's claims that the Aryans were a superior race and that an international Jewish conspiracy was controlling the world were harmful because they were false ideas, not because they lacked ideational content. When students pass out leaflets saying "Niggers go home," or chant that "Hitler had the right idea" they are uttering opinions that are hateful precisely because of the ideas they express.</p> <p> We are dealing here with bad ideas, not physical blows or the absence of ideas. For that problem John Stuart Mill had the right answer long ago in his famous essay "On Liberty." He said that we must allow for the expression of bad ideas -- whether opinions or alleged statements of fact -- because they may contain some grain of truth that corrects the conventional wisdom or, lacking that, provide a challenge to accepted beliefs, without which those beliefs in the long run become mere prejudices. As Supreme Court Justice Louis Brandeis advised, in his famous <i>Whitney v. California</i> opinion in 1927, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."</p> <p> A proponent of restricting racist speech might concede that it does contain ideas and that there might even be some slight value in the expression of those ideas, but that on balance the harm they do still warrants their suppression. Yet a closer look at those harms and the competing interests they involve shows why this is not so. </p> <p> It is clear that racist speech in some volatile situations may incite violence against its targets or provoke its targets to react violently. But that is not unique to racist speech. We have more generic, constitutionally permissible, prohibitions against direct incitement or provocation to immediate violence in contexts where violence is likely to occur. These restrictions, covering incitements of any sort, are adequate to deal with the relatively infrequent incidents of violence resulting from racist speech. </p> <p> If anything, some of these prohibitions, such as the so-called "fighting words" doctrine that has been approved by the Supreme Court and adopted by the University of California system as its standard for restricting speech, may be too extensive, since they allow for the possibility of a "heckler's veto." Despised or unpopular speech that does not seek to start a fight may be suppressed because the audience threatens reactive violence. Under such a regime, any speech could be stopped by displeased listeners who threaten sufficient turmoil. What is more, the "fighting words" standard offers no protection to those targets of hate speech who are too weak or outnumbered to even consider beginning a fight.</p> <p> A second harm that racist speech is alleged to cause, at least in some circumstances, is the physical intimidation of its targets. Again, this problem is not unique to racist speech, and generic, constitutionally permissible, remedies are available. The common law of assault punishes verbal attacks of any sort that place an individual in immediate apprehension of physical harm. It is illegal to send threats of physical injury through the U.S. mail. Federal civil rights law makes it a crime for two or more persons to "conspire to injure, oppress, threaten, or intimidate any citizens in the free exercise or enjoyment of any right or privilege secured to him by the Constitution." </p> <p> There are also remedies specific to racial and sexual harassment in the workplace. Employees who have been subjected to patterns of verbal abuse by supervisors and fellow employees have won court judgments against the employer. One such case occurred in the State of Washington, where the Crown Zellerbach Company was found liable to a Mexican-American employee who, according to the state supreme court, had been "subjected to continuous humiliation and embarrassment by reason of racial jabs, slurs and comments ... by agents and employees of the defendant corporation." The same logic could well apply to a classroom situation in which a student is subjected to a similar pattern of verbal derogation by the teacher and other students.</p> <p></p><center>* * *</center> <p> We must be cautious about such remedies, however, if and when they begin to spill over to circumstances where the instances of racist or sexist utterance are rare rather than part of a persistent pattern, and where there is no authority relationship present as between boss and employee or teacher and student. Key elements of the Washington Supreme Court decision in the Crown Zellerbach case, for example, were its finding that the victim was in a situation where he had to "remain in physical proximity" to people who were "continually" making racial slurs, and that the participation in this activity by a person in a position of authority over the target created the apprehension of discriminatory <i>treatment</i> that might well go beyond mere words.</p> <p> We must also be wary of restrictions, such as those being adopted by some universities, that punish racist or sexist speech on the basis of vague criteria such as the creation of an "unpleasant" or "hostile" environment, rather than specific and demonstrable interference with a targeted individual's ability to function. Not that unpleasantness or discomfort resulting from the speech of others is benign. It is not a harm, however, from which people in a free, and often disputatious, society can be immunized. The supreme court of the State of New York recently made that point clear, in striking down as overbroad the state's harassment statute, which had been invoked against a nineteen-year old woman who had called a retarded neighbor woman a "bitch" and her retarded son a "dog" as they passed by her door. Absent a clear and present danger of material consequences, the court believed that such verbal abuse must be tolerated. That is a standard which universities, supposedly bastions of free inquiry, would do well to embrace.</p> <p> To do otherwise would be to accept the proposition, offered as perhaps their most forceful argument by the advocates of restricting racist speech, that the emotional distress suffered by the victims of such communication is, in and of itself, a sufficient harm to justify an exception to First Amendment protections. That real emotional pain may be experienced by the targets of racially, religiously, or sexually abusive speech is undeniable, particularly when they feel their group to be vulnerable to oppression by those actually or potentially in power. But emotional pain is a highly subjective, individualized experience that can result from a wide range of stimuli, including not only explicit and deliberate verbal attacks but unintended slights and even vivid historical or fictional accounts of traumatic events.</p> <p> Emotional pain can also be confounded and confused with other psychological states. Lawsuits for causing mental anguish were filed, for example, against the ABC network for its broadcast portrayal of the impact of a nuclear war, "The Day After," though what the plaintiffs had probably felt was less mental anguish than intense political disagreement. And in a suit for emotional distress arising out of the Skokie incident, a holocaust survivor and leader of the opposition to the Nazi march, who testified that the sight of marching Nazis would evoke intolerably painful memories of the execution of his parents, was found to have gone willingly to monitor other demonstrations by the neo-Nazis in the Chicago area. Apparently his opposition to their Skokie march was motivated more by anger than by pain.</p> <p> This is not to denigrate the anger that he felt but to suggest that it is not the same as emotional hurt. Nor is emotional hurt the same for one black person in the face of verbal slurs and epithets as it is for another, nor of necessarily greater magnitude for a black than for a Jew, for a Jew than for a gay, or for a person with physical handicaps. It is for this reason that the U.S. Supreme Court rejected Jerry Falwell's claim against <i>Hustler</i> magazine for the intentional infliction of emotional distress, holding that in the area of political and social discourse any effort to determine the seriousness of alleged emotional harms has such "an inherent subjectiveness about it" that our courts should not engage in the process.</p> <p></p><center>* * *</center> <p> Even if one were persuaded that banning racist speech is desirable to reduce harm, numerous practical consequences should give pause. Placing limitations on the verbal expression of group hatred does not make those attitudes disappear. More likely they will go underground to fester, and perhaps later erupt in more violent form. In the absence of their overt expression, society may grow complacent, thinking it has solved a problem that actually persists. The hidden enemy is more dangerous than one that is seen.</p> <p> Those who are clever enough, instead of going underground, will express their hatred in more indirect and sophisticated ways, evading the prohibitions of the law while increasing the persuasiveness of their racist message by phrasing it in less repugnant terms. This is precisely what happened in Great Britain with a racist journal after passage of the Racial Relations Act of 1965. The law made it an offense to publish or distribute any matter that is "threatening, abusive, or insulting" aimed at fomenting "hatred against any section of the public in Great Britain distinguished by color, race, ethnic or national origins." The journal cleaned up its language and increased its circulation.</p> <p> Prohibitions also turn censored material into "forbidden fruit" and the advocates of racism into martyrs. If speech or writing is banned, many will suppose there must be something important that those in power are afraid of. Curiosity, if nothing else, will lead some to find out for themselves what is being withheld or regulated. How many people who would not otherwise have done so went to see the movie 'The Last Temptation of Christ" or the Mapplethorpe art exhibit, because of the efforts made to suppress them? In France, National Front leader Jean-Marie Le Pen's success in garnering up to fifteen percent of the vote in recent elections may well have been due in part to the role of martyr he has played to the hilt as a result of the various legal actions brought against him for "inciting racial hatred."</p> <p> Prohibitions on group libel may also perpetuate a sense of helplessness among the targets of racist speech. Instead of learning to defend themselves verbally, people who come to regard themselves as victims may depend upon authorities to protect them from verbal abuse. Children who respond to a schoolyard taunt by chanting, "Sticks and stones may hurt my bones, but names will never hurt me" may not be truthfully revealing all their inner feelings. But they are at least expressing a bravado that may be useful in deterring further abuse.</p> <p> A final practical shortcoming of restrictions on racially, religiously, or sexually derogatory speech is that no matter how broadly they sweep in defining what is prohibited, they cannot, without entirely shredding the First Amendment, reach some of the insidious forms of racism and sexism that have been built into our very language. Are we going to outlaw such expressions as "black sheep," "blacklist," "blackball," "blackening someone's reputation," and "as different as black and white"? Are we going to decree that God may no longer be referred to as "He"? And make no mistake about it: it is an insidious influence on our ways of thinking for black to be so often associated with the bad and for "he" to serve as our generic pronoun.</p> <p> To oppose restrictions on group libel is not to be insensitive to the problems of prejudicial attitudes and discriminatory conduct. On the contrary, it is to refocus our attention and energies away from superficial and counterproductive remedies to grapple with the underlying causes of group hatreds. Insofar as the verbal expression of those hatreds is concerned, our institutions of higher education, more than any other institutions in our society, have a responsibility and the resources to act on the advice of Justice Brandeis and answer evil speech with more and better speech. They should be sponsoring activities and setting examples, aimed at educating students for living harmoniously in a pluralistic society. If intergroup understanding is to be developed, our college and university administrators, faculty, and student leaders must play an active and vocal role in helping to make it happen.</p> <p> But the roots of group hatreds stretch far beyond the reach of our educational institutions. They have entangled the world forever and plague us today, from Northern Ireland to the Middle East, from Ethiopia to South Africa. They are interwoven with problems of economic wealth and poverty, of political power and powerlessness, of psychological insecurity and fear. They will not be solved by writing laws and rules against racist speech. </p> </div></div></div> Tue, 05 Dec 2000 02:51:49 +0000 141600 at Franklyn Haiman