1st & 14th Amendments & Hate Speech
DavidEBernstein at aol.com
DavidEBernstein at aol.com
Sun Mar 4 16:03:23 PST 2007
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.__ (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.__ (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.__ (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.__
(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.__
(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.__
(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.__ (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.__
(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.
__ (aoldb://mail/write/template.htm#_ftnref1) Swanner v. Anchorage Equal
Rights Comm’n, 874 P.2d 274 (Alaska 1994).
__ (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).
__ (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).
__ (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.
__ (aoldb://mail/write/template.htm#_ftnref5) See Eugene Volokh, Freedom
of Speech and the Constitutional Tension Method, 3 U. Chi. Roundtable 223
__ (aoldb://mail/write/template.htm#_ftnref6) R.A.V. v. City of St.
Paul, 505 U.S. 377 (1992).
__ (aoldb://mail/write/template.htm#_ftnref7) Hurley v. Irish-American
Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).
__ (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?
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