1st & 14th Amendments & Hate Speech

[DavidEBernstein at aol.com]

I addressed Bobby's question in "You Can't Say That!":
 
 
By contrast, from the late 1970s until the early  1990s courts abandoned 
civil liberties in favor of antidiscrimination principles  with stunning 
blitheness.  State  courts went even further, expanding the compelling interest 
paradigm to  antidiscrimination interests that don’t even seem objectively important, 
much  less constitutionally compelling.  For example, the Alaska Supreme 
Court found that the state’s interest in  protecting unmarried heterosexual 
couples from housing discrimination is  sufficiently compelling to override First 
Amendment rights._[1]_ (aoldb://mail/write/template.htm#_ftn1)   
If judges routinely announced that the  government’s compelling interest in 
eradicating violent crime trumped the  enforcement of constitutional rights, 
civil libertarians—in common with other  thoughtful Americans—would strongly 
protest.  Yet few civil libertarians protested  when courts allowed the 
government to eviscerate civil liberties to pursue its  interest in eradicating 
discrimination._[2]_ (aoldb://mail/write/template.htm#_ftn2)   Indeed, many liberal 
law professors with otherwise impeccable civil  liberties credentials went out 
of their way to justify the courts’  malfeasance.  The professors argued  
that the Thirteenth, Fourteenth, and Fifteenth Amendments, passed largely to aid  
African Americans after the Civil War, create a governmental obligation to  
enforce equality among groups._[3]_ (aoldb://mail/write/template.htm#_ftn3)   
This  obligation, they contend, can in turn supersede explicit protections 
provided by  the Bill of Rights, including the First Amendment.  
This argument is wrong, both textually and  historically.  The Civil War  
amendments do not purport to guarantee substantive equality, much less to  
override the First Amendment.  The  Thirteenth Amendment abolished slavery, the 
Fourteenth Amendment required states  to provide all persons with equal protection 
of the laws (not equality per se), and the Fifteenth Amendment  guaranteed 
African Americans the right to vote.  None of the Civil War amendments  
established a right to be free from private sector discrimination. 
Some scholars argue, however, that First Amendment  rights should be 
subordinated to antidiscrimination claims because the  “constitutional value” of 
equality as reflected in the Fourteenth Amendment is  in tension with the First 
Amendment “value” of freedom of expression._[4]_ 
(aoldb://mail/write/template.htm#_ftn4)   The Constitution, however, is first and foremost a legal document, 
not a  mere expression of abstract values.  The First Amendment’s prohibition 
on government regulation of freedom of  expression does not conflict with the 
Fourteenth Amendment’s requirement that  states may not deny equal protection 
of the laws.  For example, an individual who engages  in racist speech is 
protected by the First Amendment and is not violating the  Fourteenth Amendment 
because he is neither an agent of the state nor denying  anyone equal 
protection of the laws. 
Arguments that courts should abstract egalitarian  values from the Civil War 
amendments and find that those values trump the First  Amendment are not only 
specious, but are also extremely dangerous.  If courts were to accept such 
arguments,  the slippery slope to broad censorship of speech would be short 
indeed.  For example, public safety, like  equality, is an important societal and 
constitutional value.  Under a paradigm that important values  override 
constitutional protections, the government could ban any incendiary speech that 
implicitly or  explicitly encourages violence or criminal activity, because such 
speech could  be considered a threat to public safety._[5]_ 
(aoldb://mail/write/template.htm#_ftn5)   Any movie, book, or play with an outlaw hero would lose 
constitutional  protection; say goodbye to Robin  Hood, Antigone, Bonnie and 
Clyde, and virtually every  Martin Scorsese movie.  Moreover, if  the 
constitutional values paradigm were adopted by the courts, the criminal  procedure 
protections of the Fourth, Fifth, and Sixth amendments, such as the  right to 
remain silent and the right to a jury trial, could ultimately be  eviscerated.  
After all, these  rights conflict with the “constitutional value” of public  
safety.The  lack of a sound constitutional justification for sacrificing civil 
liberties to  antidiscrimination laws, combined with the increased encroachment 
of  antidiscrimination laws on previously untouched elements of civil 
society, has  led the Supreme Court to become increasingly protective of civil 
liberties.  In 1992, the Court unanimously  invalidated a hate speech law as 
unconstitutional government interference with  free speech._[6]_ 
(aoldb://mail/write/template.htm#_ftn6)   Several years later, the Court  unanimously held that 
Massachusetts had violated the First Amendment  when it tried to force a 
privately sponsored St. Patrick’s Day parade to allow a  gay rights group to march 
under its own banner._[7]_ (aoldb://mail/write/template.htm#_ftn7)   Most 
recently, the Court, in a 5-4  decision, upheld the right of the Boy Scouts of 
America (BSA) to exclude a gay  scoutmaster whose sexual identity, according to the 
BSA, undermined the BSA’s  promotion of traditional sexual morality._[8]_ 
(aoldb://mail/write/template.htm#_ftn8)   In all these cases, the Court rejected  
the argument that the government’s purported compelling interest in 
eradicating  discrimination trumped the First Amendment.  

 
____________________________________

_[1]_ (aoldb://mail/write/template.htm#_ftnref1)   Swanner v. Anchorage Equal 
Rights Comm’n, 874 P.2d 274 (Alaska  1994).
 
_[2]_ (aoldb://mail/write/template.htm#_ftnref2)   E.g., Roberts v. United 
States Jaycees, 468 U.S. 609 (1984); Robinson v.  Jacksonville Shipyards, Inc., 
760 F. Supp. 1486, 1542 (M.D. Fla.  1991).
 
_[3]_ (aoldb://mail/write/template.htm#_ftnref3)   See, e.g., Akhil Reed 
Amar, The Case of The Missing Amendments: R.A.V. v. City  of St. Paul, 106 Harv. 
L. Rev. 124 (1992). Amar’s argument is persuasively  rebutted in Alex Kozinski 
& Eugene Volokh, A Penumbra Too Far, 106 Harv. L.  Rev. 1639 (1993).
 
_[4]_ (aoldb://mail/write/template.htm#_ftnref4)   E.g., Mari J. Matsuda, 
Public Response to Racist Speech: Considering the  Victim's Story, in Mari J. 
Matsuda, et al., Words That Wound: Critical Race  Theory, Assaultive Speech, and 
the First Amendment 17, 24-25 (Westview, 1993);  Charles R. Lawrence III, If 
He Hollers Let Him Go: Regulating Racist Speech on  Campus, in Matsuda, et al., 
Words That Wound 53, 61; Catherine MacKinnon, Only  Words 71 (Harvard 1993); 
Richard Delgado, Campus Antiracism Rules:  Constitutional Narratives in 
Collision, 85 Nw. U. L. Rev. 343, 346 (1991); Mary  Ellen Gale, Reimagining the 
First Amendment: Racist Speech and Equal Liberty, 65  St. John’s L. Rev. 119, 162 
(1991); Brian Owsley, Racist Speech and “Reasonable  People”: A Proposal for 
a Tort Remedy, 24 Colum. Hum. Rts. L. Rev. 323, 324  (1993).  This argument 
has also  infiltrated the civil libertarian community, and commands a great deal 
of  support within the ACLU.   See  Dennis Cauchon, Civil Dispute Within the 
ACLU, USA Today, March 31,  1993.
 
_[5]_ (aoldb://mail/write/template.htm#_ftnref5)   See Eugene Volokh, Freedom 
of Speech and the Constitutional Tension Method, 3 U.  Chi. Roundtable 223 
(1996).
 
_[6]_ (aoldb://mail/write/template.htm#_ftnref6)   R.A.V. v. City of St. 
Paul, 505 U.S. 377  (1992).
 
_[7]_ (aoldb://mail/write/template.htm#_ftnref7)   Hurley v. Irish-American 
Gay, Lesbian & Bisexual Group of Boston, 515 U.S.  557 (1995).
 
_[8]_ (aoldb://mail/write/template.htm#_ftnref8)   Boy Scouts of America. v. 
Dale, 120 S. Ct. 2446  (2000).


 
In a message dated 3/4/2007 6:39:33 PM Eastern Standard Time,  
RJLipkin at aol.com writes:

           The  question of the constitutionality of hate speech legislation 
relies, of  course, on the First Amendment? To counter the force of the First 
Amendment  with policy considerations--however fundamental--is a losing 
argument  generally.  By contrast, if some other fundamental provision of the  
Constitution entails (implies, suggests?) the legitimacy--and barring state  action 
problems--of such legislation, then there might  exist constitutional, not 
merely policy, arguments  on both sides of the question. I seem to remember some 
critical race  theorists--specifically Richard Delgado--championing the 
Fourteenth  Amendment's Equal Protection as a counterweight to the First Amendment  
regarding hate speech legislation.  Is this right? If so, whatever  happened 
to this attempt to find a constitutional basis for hate speech  legislation?  
Thanks.  



Bobby





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