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1994

Hate Speech and the U.S.

Geoffrey R. Stone

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Recommended Citation Geoffrey R. Stone, " and the U.S. Constitution," 3 East European Constitutional Review 78 (1994).

This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. EAST EUROPEAN CONSTITUTIONAL REVIEW

Focus: Hate Speech Jurisprudence in the United States and Hungary

Hate Speech and the U.S. Constitution

Geoffrey R. Stone

One of the most difficult issues in working out a sys- any Constitutional problem. These include the tem of free expression arises out of the need to recon- lewd and obscene, the profane, the libelous, and the cile a society's often competing commitments to free- insulting or "fighting" words.... It has been well dom of speech and individual dignity. This conflict is observed that such utterances are no essential part posed most poignantly in the context of libel, group of any exposition of ideas, and are of such slight and hate speech. To what extent must a social value as a step to truth that any benefit that society, to be true to its commitment to free expres- may be derived from them is clearly outweighed by sion, tolerate speech that deliberately insults and the social interest in order and morality." degrades a group or individual on the basis of race, The significance of this passage is that whereas religion, gender or ethnic origin? On what theory the Supreme Court views laws restricting most does the right to free expression embrace the right to forms of expression-for example, a law prohibition engage in individual or group defamation? On the the advocacy of communism-as presumptively other hand, to what extent may a society, in further- unconstitutional and sustainable only on a showing ance of its commitment to individual dignity, censor that the restriction is necessary to prevent a clear and unpleasant racist or sexist or homophobic speech present danger of some very serious evil (a standard merely because it offends, or even deeply offends, the Government almost never can meet), the Court particular groups or individuals? Can this possibly be views laws restricting "low" value speech as pre- a principled basis on which to censor ideas and opin- sumptively constitutional and will sustain such ions in a society committed to open public debate? restrictions on a showing of mere "reasonableness." For the past fifty years, the United States Supreme Less than a decade after Chaplinsky, the Court con- Court has wrestled with these questions. While at fronted the issue of group defamation in Beauharnaisv. first the Supreme Court hinted at the possibility that Illinois, 343 U.S. 250 (1952). Beauharnais, the president some regulation of group defamation and hate of the White Circle League, organized the distribution speech would be constitutional, the Court has now of a leaflet calling on the city council of Chicago "to halt quite firmly concluded that such regulation would the further encroachment, harassment and invasion of most likely be unconstitutional. white people, their , neighborhoods and per- The history of libel, group defamation and sons, by the Negro." The leaflet called upon the "white hate speech regulation in American constitution- people in Chicago to unite," and added that "If persua- al law begins with the Supreme Court's 1942 sion and the need to prevent the white race from decision in Chaplinsky v. New Hampshire, 315 U.S. becoming mongrelized by the Negro will not unite us, 568 (1942), in which the Court announced that then the aggressions [rapes], robberies, knives, guns some categories of speech are of only "low" First and marijuana of the Negro surely will." Amendment value and are thus accorded less As a result of his participation in the distribu- than full constitutional protection: tion of this leaflet, Beauharnais was convicted "There are certain well-defined and narrowly under an Illinois statute declaring it unlawful for limited classes of speech, the prevention and pun- any person to distribute any publication which ishment of which have never been thought to raise "portrays depravity, criminality, unchastity or lack

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of virtue of a class of citizens, of any race, color, no talismanic immunity from constitutional limita- creed or religion" or subjects them "to contempt, tions" and "must be measured by standards that sat- derision, or obloquy." isfy the First Amendment." In a five-to-four decision, the Supreme Court Turning to the task of articulating these stan- upheld the conviction. Relying on Chaplinsky, the dards, the Court observed in an oft-quoted passage Court explained that, because "libelous utterances that "we consider this case against the background [are not] within the area of constitutionally protect- of a profound national commitment to the principle ed speech," it was irrelevant that Beauharnais' that debate on public issues should be uninhibited, speech did not create a clear and present danger of robust, and wide-open." The essential difficulty, the any serious harm. It was enough, the Court said, Court explained, is that "erroneous statement is that this was not a "purposeless restriction unrelated inevitable in free debate," and even false statements to the peace and well-being of the State." Pointing must therefore be "protected if the of to the history of racial conflict in Illinois, the Court expression are to have the 'breathing space' that observed that "we would deny experience to say they 'need to survive.'" Thus, the Alabama law of that the Illinois legislature was without reason in libel could not be "saved by its allowance of the seeking ways to curb false or malicious defamation defense of truth," for a rule compelling the critic of of racial and religious groups." In response to official conduct to guarantee the truth of all his fac- Beauharnais' argument that he should at least have tual assertions" would lead to intolerable "self-cen- been permitted the defense of truth, the Court con- sorship." Indeed, under such a rule, "would-be crit- cluded that the State could constitutionally prohibit ics of official conduct may be deterred from voicing group defamation without regard to the truth or fal- their criticism, even though it is believed to be true sity of the statements if the defendant did not act and even though it is in fact true, because of doubt "with good motives and forjustifiable ends." whether it can be proved in court." Such a rule, the Although Beauharnais seemed a landmark deci- Court concluded, "dampens the vigor and limits the sion that would significantly affect the Supreme variety of public debate." Court's interpretation of the First Amendment for With these considerations in mind, the Court years to come, in fact it has never been cited approv- held that public officials may not recover damages for ingly by the Supreme Court and, for all practical defamatory falsehood relating to their official conduct purposes, has been defacto overruled. The beginning unless they can prove "that the statement was made.. of the end for Beauharnais was New York Times v. .with knowledge that it was false or with reckless dis- Sullivan, 376 U.S. 254 (1964). Sullivan, an elected regard of whether it was false or not." official in the city of Montgomery, Alabama, New York Times revolutionized the law of libel brought a civil libel action against the New York and, at the same time, undermined the principles Times alleging that the Times had published several underlying Beauharnais.The decision in Beauharnais statements that inaccurately described his involve- had been based on the premise that defamatory ment in suppressing a demonstration by black stu- utterances are "unprotected" by the First dents who were protesting racial segregation. Upon Amendment, whether or not they are false. New finding the statements to be false, thejury returned York Times emphatically and unequivocally rejected a verdict for Sullivan in the amount of $500,000. that premise. As a result, in the thirty years since The Supreme Court reversed. At the outset, the New York Times, it has come to be accepted in Court confronted its own past statements in American constitutional law that the Illinois statute Chaplinsky and Beauharnaisto the effect that libelous upheld in Beauharnaiswould no longer be held con- utterances are not "within the area of constitution- stitutional, and that such actions for group defama- ally protected speech." In rejecting these earlier tion are incompatible with the First Amendment statements, the Court declared that "libel can claim because they suppress ideas, opinions and assertions

HeinOnline -- 3 E. Eur. Const. Rev. 79 1994 EAST EUROPEAN CONSTITUTIONAL REVIEW that may offend; but these do not create a clear and 's lawn, the petitioner, a teenager, was present danger of serious harm. charged under the St. Paul, Minnesota, Bias- The extent to which Beauharnais has been dis- Motivated Ordinance, which prohibited the credited was made clear in the 1977 Skokie contro- display of a burning cross, a swastika, or other sym- versy. In 1977, Skokie, a northern Chicago suburb, bol which one knows or has reason to know "arous- had a population of about 70,000 persons, 40,000 of es anger, alarm or resentment in others" on the basis whom were Jewish. Approximately 5,000 of the of race, color, creed, religion or gender. The Jewish residents were survivors of Nazi concentra- Minnesota Supreme Court interpreted the ordi- tion camps during II. Frank Collin, nance as prohibiting only constitutionally unpro- leader of the National Socialist Party of America, tected "fighting words." informed Skokie officials that the party intended to In Chaplinsky, the Court had listed "fighting hold a march through Skokie. Collin explained that words" among the "well-defined and narrowly lim- the demonstration would consist of thirty to fifty ited classes of speech, the prevention and punish- individuals marching in single file wearing uni- ment of which have never been thought to raise any forms reminiscent of those worn by the Nazi Party Constitutional problem." Indeed, in Chaplinsky in Germany under Hitler and that they would wear itself the Court had upheld the conviction of an swastika armbands. The marchers would also carry individual for calling a police officer a "damned banners containing a swastika and signs bearing racketeer" and a "damned Fascist." The Court such messages as "Free Speech for Whites." explained that "fighting words" - personal epithets Skokie officials filed suit seeking to enjoin the hurled face-to-to face at another individual which marchers from wearing their uniforms, displaying are likely to cause the average addressee to fight - the swastika, or distributing any materials that are "unprotected" by the First Amendment because would "incite or promote hatred against persons of they "are of such slight social value as a step to truth Jewish faith or ancestry." The complaint alleged that any benefit that may be derived from them is that the march, as planned, was a "deliberate and clearly outweighed by the social interest in order willful attempt to exacerbate the sensitivities of the and morality." Jewish population in Skokie and to incite racial and In the half-century between Chaplinsky and religious hatred" and that the display of the swasti- R.A.V, the Court had consistently narrowed the ka in Skokie "constitutes a symbolic assault against scope of the fighting words doctrine and, indeed, large numbers of the residents of Skokie and an inci- had not upheld a single fighting words conviction. tation to violence and retaliation." Nonetheless, the Court never directly called into The Illinois Supreme Court held that the proposed question the continued vitality of the doctrine itself. demonstration was protected expression and that an Thus, given that the state courts in R.A.V already injunction against the march would violate the First had interpreted the ordinance as limited to fighting Amendment. The Supreme Court of the United States words, there would not seem to be any serious ques- declined even to review the issue. (Eventually, Colin tion about the constitutionality of the ordinance. agreed to move the demonstration from Skokie to (Note: The question whether the burning of the downtown Chicago. In 1978, he held an'hour-long rally cross actually constituted "fighting words" was not at which 400 riot-helmeted policemen protected the considered by the Court because the defendant had twenty-five Nazi demonstrators from several thousand not yet been tried.) counter-protesters. There were seventy-two arrests and Nonetheless, the Supreme Court invalidated some rock and bottle throwing but no serious violence.) the St. Paul ordinance, holding that the ordinance The Supreme Court returned to the hate speech was invalid even if it was limited only to fighting issue fifteen years later in RAV v. City ofSt Pau, 112 words. This was so, the Court explained, because S.Ct. 2538 (1992). After burning a cross on a black the ordinance was selective among fighting words

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-it prohibited only some fighting words (those otherwise unprotected speech, that is drawn explic- related to race, for example), but not all fighting itly to protect particular groups against offensive or words (those related to political affiliation). The hurtful expression will pass constitutional muster. Court began by noting that the "First Amendment And this is so because, as the Court has often said, generally prevents government from proscribing apart from the existence of certain categories of speech because of disapproval of the ideas "low" value expression, there is an "equality of sta- expressed." Regulations of speech because of its tus in the field of ideas" and, "above all else, the First content "are presumptively invalid." And this is Amendment means that government has no power true, the Court reasoned, even within a category of to restrict expression because of its message, its otherwise unprotected expression. Thus, although ideas, its subject matter, or its content." Police "the government may proscribe libel, it may not Department of Chicago v. Mosley, 408 U.S. 92 (1972). make the further content discrimination of pro- In Wisconsin v. Mitchell, 113 S.Ct.-(1993), the scribing only libel critical of the government." In Court's most recent foray into this area, the Court R.A.V., the ordinance restricted only those fighting upheld a Wisconsin hate-crime penalty enhance- words that "insult, or provoke violence 'on the basis ment statute. In 1989, a group of black men, includ- of race, color, creed, religion or gender."' This, the ing Mitchell, were discussing a scene from the Court concluded, is impernissible: motion picture "Mississippi Burning," in which a "Displays containing abusive invective, no mat- white man beat a young black boy who was pray- ter how vicious or severe, are permissible unless ing. At that point, a young white boy walked by and they are addressed to one of the specific disfavored Mitchell said, "There goes a white boy; go get him." topics. Those who wish to use "fighting words" in The group then ran towards the boy and beat him connection with other ideas-to express hostility, for severely. Mitchell was convicted of aggravated bat- example, on the basis of political affiliation, union tery, an offense which ordinarily carries a maxi- membership, or homosexuality-are not covered. mum sentence of two years' imprisonment. But The First Amendment does not permit St. Paul to because thejury found that Mitchell had intention- impose special prohibitions on those speakers who ally selected his victim because of the boy's race, the express views on disfavored subjects." maximum penalty for Mitchell's offense was Finally, the Court rejected the claim that the increased to seven years under a state statute pro- "discrimination" in the ordinance was justified viding for penalty enhancement whenever the because it was necessary to further the city's com- defendant "intentionally selects the person against pelling interest in helping "to ensure the basic whom the crime is committed because of the race, human of members of groups that have his- religion, color, disability, sexual orientation, nation- torically been subjected to discrimination." The al origin or ancestry of that person." Court explained that the content limitation was not The Court unanimously rejected the argument "necessary" to achieve the city's interest because the that this statute violated the First Amendment city could have achieved its ends without the con- because it "enhances the maximum penalty for con- tent limitation by banning all fighting words. Thus, duct motivated by a discriminatory point of view "the only interest distinctively served by the content more severely than the same conduct engaged in for limitation is that of displaying the city council's spe- some other reason." The Court explained that "a cial hostility towards the particular biases singled physical assault is not by any stretch of the imagina- out. That is precisely what the First Amendment tion expressive conduct protected by the First forbids." Amendment." Thus, this case is different from The distance traversed from Beauharnais to R.AY because "the ordinance struck down in R.A.V is considerable indeed. After RAY, it would R.A.V. was explicitly directed at expression," seem that no direct regulation of speech, even of whereas "the statute in this case is aimed at conduct

HeinOnline -- 3 E. Eur. Const. Rev. 81 1994 EAST EUROPEAN CONSTITUTIONAL REVIEW unprotected by the First Amendment." Moreover, Moreover, to guard against the risk that govern- although reaffirming that a state may not punish ment might effectuate its preferences for some an individual more severely because he has unpop- ideas over others merely by claiming that it is ular or even odious beliefs, the Court nonetheless restricting speech because it is harmful, the concluded that this statute involved enhanced pun- Court has held that government may not regu- ishment for motive, which is commonplace in the late expression because of its content except in law, rather than for abstract belief. the most extraordinary of circumstances. The current state of the law, then, would Thus, just as the government cannot consti- seem to permit penalty enhancement for non- tutionally restrict advocacy of communism, agi- speech when the defendant acts for imper- tation against an on-going war, burning of the missible, hate-based motives, but to prohibit pun- American flag, or the expression of ideas that ishment for speech (including symbolic speech, deeply offend others, so too is it foreclosed from like wearing a swastika or burning a cross) restricting speech that insults or degrades partic- because it offends or otherwise harms particular ular racial, religious, ethnic or gender groups. groups or individuals on the basis of such factors The point is not that such expression is harmless. as race, religion, gender or ethnicity. It is, rather, that there are better ways to address The Court has thus subsumed hate-speech the harm than by giving government the power and group defamation legislation within its more to decide which ideas and opinions the citizens of general assumption that most forms of content- a free and self-governing nation may and may not based restrictions of speech are presumptively express. unconstitutional. The underlying rationale of this approach is that government cannot be trust- ed to makejudgments about which ideas can and Geoffrey R. Stone is Harry Kalven,Jr. Professor of Law cannot legitimately be aired in public debate. and Provost at the University of Chicago

Hate Speech for Hostile Hungarians

Andras Sajo

Dean Stone reviews the past fifty years of the U.S. Court's deliberations). Supreme Court's struggle to work out a system of Unrestrained speech, on the one hand, given free expression that reconciles "a society's often the social and political conflicts racking Hungarian competing commitments to of speech and society during the transition period, may endanger individual dignity." The emerging democracies of social stability. Restricted speech, on the other Eastern Europe have had only three or four years to hand, may immobilize nascent civil society, limit devise their own solutions to this same problem. fundamental freedoms, and stifle the lively criti- Legal rules chosen in haste, however, may have a cism of government so essential to democracy. The lasting social impact. This article reviews the hate present-day legal system in Hungary seems to be speech/free speech debate in postcommunist torn between these two irreconcilable positions. Hungary, in the light of U.S. standards (which, as it The constitution as amended in 1989 guarantees happens, played a major role in the Hungarian and religion and the right of

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