Stacey DeRosa
Lauren Street
Seth Giller
Hate speech has been an issue which has plagued the Supreme Court for a number of years. It has presented a classic debate between the freedom granted to citizens of the United States by the First Amendment of the Constitution, and the order required for a well-maintained state. This struggle has been played out in many cases, ranging from those which deal with group libel, to Ku Klux Klan demonstrations, to cross-burning and other related issues as symbols of expression. All of these questions have been raised amongst great controversy in the Court and throughout the country.
This paper will examine the progression of such cases which have ensued since the 1950's. It will study the effects of three landmark cases, all of which are still referred to in precedent in current cases. The paper will begin with Beauharnais v. Illinois (343 U.S., 250 (1952)), a case involving defamatory comments made about a racial group. This case represents the Court siding with order over freedom. Brandenburg v. Ohio (395 U.S. 444 (1969)) is the next major case following Beauharnais in which the Court addresses a hate speech- related issue. In this case, the Court broadens what is considered to be constitutional speech, as it deals with derogatory remarks made by the KKK. Finally, the paper will address hateful actions in R.A.V. v. City of St. Paul (112 S. Ct. 2538 (1992)). In this case, the Court sides with the freedom established in Brandenburg and allows cross-burning as a form of constitutional expression. This leads to current questions surrounding hate speech codes on college campuses, which will be the last topic covered.
In the year 1952, the Supreme Court was faced with the dilemma of deciding the case of Beauharnais v. Illinois (343 U.S. 250). Coming in a time of high racial tension in the United States, this case and its majority opinion represented the Court's views of constitutional questions regarding hate speech. The case was not purely a speech case, though, as it involved the question of libel, but it is still interesting when applied to the progression of hate speech in the Court. A difficult case involving the president of the White Circle League, a white supremacist group in the state of Illinois, this case reached the Court at a time in which race relations in that state were at their dismal peak and constitutional liberties regarding hate speech were at their lowest (Beauharnais v. Illinois, 343 U.S. 250, 251 (1952)) Although it has never been explicitly overruled, cases decided in the last twenty years have all but erased its decision from precedent.
Joseph Beauharnais, at a meeting of his organization on January 6, 1950, passed out bundles of lithographs, together with other literature, to volunteers within his group, to distribute in downtown Chicago on the following day. The lithograph in question was essentially a leaflet setting forth a petition calling on public officials in Chicago to "halt the further encroachment, harassment, and invasion of white people, their property, neighborhoods and persons, by the Negroà." (Beauharnais, 252). Below this statement was a call for "One million self-respecting white people in Chicago to unite and if persuasion and the need to prevent the white race from being mongrelized by the negro will not unite us, then the aggressionsà rapes, robberies, knives, guns, and marijuana of the negro, surely will" (Beauharnais, 252). Beauharnais was arrested for violating Section 224a of the Illinois Criminal Code, which provides:
"It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, creed, color, or religion which said publication or exhibition exposes the citizens of any race, color, creed, or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riotsà." (Beauharnais, 251).
He challenged the constitutionality of the statute in that he believed that it violated explicitly the liberty of speech and the press guaranteed by the First Amendment as applied to the states through the Due Process clause of the Fourteenth Amendment. He was convicted by the Municipal Court of Chicago, and the Supreme Court of Illinois sustained the statute and upheld the conviction (Beauharnais v. Illinois, 408 Ill. 512, 517, 97 N.E. 2d 343, 346, (1949)). Although not entirely classified by the courts as a purely speech issue (again, libel was brought up as the main issue), it presented an interesting question which the Court accepted on certiorari because it "concerned the limitations 4 imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups" (Beauharnais, 254). The question which the Court set out to address is whether the liberties protected by the Fourteenth Amendment allow for a state to limit speech which is directed at designated collectivities with the intention of being "flagrantly disseminated."
The case was decided by a 5-4 verdict with Justice Felix Frankfurter writing the opinion of the Court. Beauharnais lost the case, with Frankfurter's argument seemingly relying on the historical conditions in Illinois at the time creating a need to create limitations on speech. In the argument, Justice Frankfurter asserted that speech such as that conducted in the words of Beauharnais had an internal tendency to cause a breach of the peace due to the reactions of others (Beauharnais, 261). Stating that it had been well- established that utterances such as those which are lewd, obscene, profane, or insulting, are not safeguarded by the Constitution, he included a quote from Cantwell v. Connecticut which extended the argument (Cantwell v. Connecticut, 310 U.S. 296, 307 (1945)). "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument" (Cantwell v. Connecticut, 309-10). As applied in Cantwell, this test was intended for hate speech or related speech directed at individuals. Beauharnais directed his speech at a group; therefore, Frankfurter asserted that
"if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a state power to punish the same utterance directed at a defined group, unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of a state" (Beauharnais, 258).
The situation which existed in Illinois in the early 1950's contributed to the importance of this decision to the Court. This was another classic case of freedom vs. order, continuing a long line of tradition. Frankfurter argued that knowingly printing a falsehood or slur concerning a racial or religious group "promotes strife and tends powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community" (Beauharnais, 259). His progression into a discussion of the racial problems which had been inherent to Chicago and the state of Illinois was one which sparked a great deal of controversy among legal scholars. A number of literalist scholars from Harvard Law School and William and Mary Law criticize this analysis as protecting a law in certain areas in large part because of the past history of that area (Massaro, 32 Wm. And Mary L. Rev., 211, 249) More specifically some criticized the method of chronologically outlining the specific events which transpired which would warrant Frankfurter to fear for a breach of the peace (Massaro, 250) "There are limits to the exercise of these liberties (of speech and of the press). The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of these liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish" (Cantwell v. Connecticut, 307). This analysis is one which brought an interesting question to the table: would the statute have been upheld had it been enacted in a state such as New Jersey, where racial tensions were not quite as high? Or was this decision rendered largely due to the present conditions in Chicago?
Frankfurter seemed to recognize this question and touched upon it in his addressing the counter-argument that the legislation would not help matters, but instead added more fuel to the fire of racial tension. Frankfurter admitted that there existed a position in America which argued that tension and violence between racial or religious groups was not to be alleviated by legislation because the cause was "more deeply embedded in our society than the rantings of modern Know-Nothings" (Beauharnais, 262). The Court answered this by claiming a need for a "trial and error" process which would hopefully deal with the intended social problem. "The science of government is the most abstruce of all sciencesàit is the science of experiment" (Beauharnais, 262). In this, the Court seemingly acknowledged that this matter was an unclear one in terms of the power of legislation as a solution to the problem of racial hatred. It was used as a testing method to begin to alleviate the social wrongs which had transpired around the time of the decision.
What was being essentially debated was the libelous nature of Beauharnais's leaflet. The factor which played a major role in the debate and ultimately in the decision was the history of Anglo-American dominance which had plagued the country. "Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law" (Beauharnais, 263). The Court found merit in the argument which seemed to wish to correct past moral wrongs on the targets of the leaflets, by issuing a judgment which would set a precedent for punishment.
While the decision has never been explicitly overruled, its "provisions have since been subjected to continuing judicial and scholarly criticism, culminating in the 1978 decision of the Seventh Circuit ( striking down an ordinance aimed at preventing a Nazi demonstration in the predominantly Jewish village of Skokie, Illinois" (Miller, 101 Harvard L. Rev., 682, 683). Similarly, in this case, leaflets accompanied the protest and public outrage was quite high. The community of Skokie was opposed to the march and its message and felt that because of the ethnic composure of the town, the message was meant to be "libelous."
The Court seemed to be confident in its opinion as this case was the latest of many which sided with "order" instead of "freedom." But the dissent of Justice Hugo Black, which Justice Douglas concurred with, seemingly opened the door to a change in future opinions. Justice Black, a strict literalist in his interpretation of the Constitution, was adamant in his assertions that the Court had made a fatal error in their decision in this case.
"How does the Court justify its holding today that states can punish people for exercising the vital freedoms intended to be safeguarded from suppression by the First Amendment. The Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. The granted freedoms are ignored." (Beauharnais v. Illinois, 343 U.S. 267, 268 (1952), (Black, J, dissenting)). Justice Black spends the remainder of his angry dissent in defense or Mr. Beauharnais and in dispute with the opinion of the Court regarding the case. "Today's case degrades First Amendment freedoms to the "rational basis" level. The Court's holding here and the constitutional doctrine behind it leaves the rights of assembly, petition, speech, and press almost completely at the mercy of state legislative, executive, and judicial agencies." (Black, Beauharnais, 269-70).
Black scrutinizes the statute which is in question in the case as being a direct and brutal infringement on those rights granted to citizens by the First Amendment. He criticizes how the statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books, and newspapers. Arguing that this dangerous statute is the first step in the "expansive state censorship", Black argues that in using the defense of group libel to condone the statute, the government is hiding behind a shield (Black, Beauharnais, 271).
He criticizes the Court's reliance on Chaplinsky v. New Hampshire, pointing out that the words expressed in this case can not really be considered of that category (315 U.S. 568 (1942)). He argues that "the leaflet used here was also the means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. And the "fighting words" were but a part of arguments on questions of wide public interest and importance. Freedom of petition, assembly, speech, and press could be greatly abridged by a practice of meticulously scrutinizing every editorial, speech, sermon, or other printed matter to extract two or three naughty words on which to hang charges of "group libel." (Black, Beauharnais, 272-3). The act is construed by Black to have a blatant disregard for First Amendment freedoms. Asserting that Beauharnais is essentially being punished for publicly expressing strong views in favor of segregation, Black argues that ironically, Beauharnais "would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself." (Black, Beauharnais, 274).
The Court which decided this particular case was one which saw a great deal of similar cases pass appear before it. While the public was assured that "freedom of petition and discussion are in no danger æwhile the Court sits'", this case raised considerable doubt (Black, Beauharnais, 274). In the few years following this controversial decision, the Court began to more sway toward the side of freedom, as the interpretations of justices such as Hugo Black and Douglas were examined.
As the Court progressed through the years, yet another constitutional question arose regarding hate speech. In April of 1969, oral arguments were heard by the Court in Brandenburg v. Ohio (395 U.S. 444). The history of the Court reveals other cases such as Beauharnais v. Illinois that dealt with similar issues of hate speech. These cases eventually led to Brandenburg. Although unknown at the time of its introduction, the opinion in Brandenburg would become not only the pinnacle, but also the concluding case of that era.
Clarence Brandenburg, the appellant in this case, was the leader of an Ohio affiliate of the Ku Klux Klan. The record indicates that Brandenburg and his associates organized a rally to be held in Hamilton County, Ohio. Brandenburg contacted a Cincinnati television station to invite a staff member to attend their meeting and film the events. Segments of the films were later broadcast on local television and on one national network. The footage contained hooded figures, some of whom were armed. These figures gathered around a large wooden cross, which they burned. A speech was given by one of the figures, later identified as the appellant. The speech included words such as "revengeance" and derogatory references to blacks and Jews (Brandenburg, 395 U.S. 444, 446 (1969)).
Consequently, Brandenburg was arrested and convicted on the grounds that he violated the Ohio Criminal Syndicalism Statute of 1919. This statute prohibited those who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform." Furthermore, it punished persons or groups designed "to teach or advocate the doctrines of criminal syndicalism." (Van Alstyne, 147) The state of Ohio was defending its statute by enforcing it. Ohio refused to subject its citizens to the spread of unpatriotic views.
The appellant challenged his conviction claiming that the 1919 Ohio Criminal Syndicalism Statute violated the U.S. Constitution under the First and Fourteenth Amendments. The intermediate appellate court of Ohio, however, ruled in favor of the State, thus sustaining his conviction. The case then was appealed to the Supreme Court of Ohio where it was soon dismissed. The Court, without filing an opinion or any conclusions, claimed that the case lacked a "substantial constitutional question." (Van Alstyne, 145) They could not have been more wrong.
The appeal finally reached the U.S. Supreme Court. Many believed, like the Supreme Court of Ohio, that a constitutional issue failed to exist. The Court previously dealt with questions of this nature. Though the rulings, historically, favored the defendants, hateful and violent speech was consistently curtailed and limited by the Court. The Court was looking to avoid altogether any threat of an overthrow of government. Retaining the country's stability was paramount. But how is this idea balanced with the freedom of speech protection guaranteed by the First Amendment?
As mentioned previously, the decision in Brandenburg v. Ohio was the climax of this free speech period. It was the first case that the Court ruled in favor of the appellant, or the individual involved in the speech at issue. Because of the decision, the Court became more lenient, tipping the scales from restricting mostly all speech to allowing mostly all speech, conditionally, of course. The rule established in Brandenburg in 1969 is still the law today. This fact illustrates the rule's endurance, efficacy, and effectiveness.
The standard that allowed this return to the fundamental tenet of free speech was the Clear and Present Danger principle. However, at issue here specifically is hate speech. How did the Court manage and control hate speech? How did the Court define it? What did the Court use to determine the constitutionality of hate speech? The Court concluded that speech is speech. They would use the same standard, the Clear and Present Danger standard, to assess the constitutionality of hate speech.
The Clear and Present Danger test was first introduced and established in the opinion of the 1919 Supreme Court case Schenck v. United States (249 U.S. 47 (1919)). At that time, its purpose was to cease the distribution of Socialist party leaflets because they were of the nature to create a "clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (Van Alstyne, 37)
However, during the years between 1919 and 1969, the Clear and Present Danger test underwent many changes and transformations. The wording of the test was altered as well as what it did and did not apply to. Historically this test suppressed speech rather than permitted it, but since the Brandenburg decision, the test has become one that not only allows the majority of speech, but also does not discriminate against the type of speech being spoken. Tom Hentoff wrote an article in The Columbia Law Review defining the nature of the Clear and Present Danger test as being "concerned only with the consequences of speech: it measures whether speech should be protected by determining the imminence and gravity of the harms it may cause. The value or type of speech is not an element of the test. The test is so strict that once a court decides to apply it, protection is almost automatic." (Hentoff, Colum. L. Rev. 1453).
The Clear and Present Danger test as established in Brandenburg v. Ohioreads that, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Van Alstyne, 146) Before Brandenburg, speech was punishable if it was merely advocating or teaching force or violence. The Court decided that prohibiting the advocacy or promulgation of personal ideas is unconstitutional. Because the Clear and Present Danger doctrine is so broadly used, hate speech, like that expressed by the Ku Klux Klan, is scrutinized under it as well. The principle encompasses and protects all forms of speech, provided that the speech does not incite action or imminent danger.
The reason is clear, according to Bernard Schwartz, why the Clear and Present Danger test is applicable to cases involving hate speech. It is fortunate that the test is able to reach and protect such speech. Not only did the Court become experts on the Clear and Present Danger principle because of the attention it was given through the years, its evolution in Brandenburg alone is significant. Schwartz, a professor at the University of Tulsa College of Law, describes the ins and outs of the decision in Brandenburg and the weight that Justice Brennan carried throughout the opinion's signing.
Schwartz explains the per curiam notation at the onset of the Brandenburg opinion. It was signed in this fashion because the written opinion was a collective effort. No one justice could take credit for the entire decision. Justice Abe Fortas was originally assigned the duty of writing the Brandenburgopinion. If the remaining eight justices had signed his opinion, according to Schwartz, "[it] would have virtually returned the law to the clear and present danger test as stated by Justice Holmes" (Schwartz, 27-28) in the Schenckopinion. But instead, due to the intervention by Justice William Brennan, Jr. in the form of suggested modifications submitted to Justice Fortas, the principle was subsequently changed for the better. Certain biographers have commented that Justice Brennan's role in the Brandenburg decision was minimal and his alterations were close to insignificant. However, these scholars fail to comprehend that the two outcomes, modified and unmodified, are extreme opposites.
Brennan's redraft of Fortas' original contained two crucial changes that produced the test that we, as Americans, abide by today. The first variation eradicated the positive reference to the clear and present danger test reaffirmed by Holmes-Brandeis. The second altered the wording of the new governing test. Specifically, the words "incite" and "imminent" were added by Brennan where Fortas had solely added the word "provoked." As stated by Schwartz, "although those changes may constitute only a small percentage of the opinion, they made for a quantum change in the law." (Schwartz, 29) The opinion persuaded the entire Court to sign it, with the partial exceptions of Justices Black and Douglas, who submitted concurrences which only attacked the fact that the clear and present danger test exists at all under First Amendment law.
How does this historical opinion affect hate speech? The government can not punish mere advocacy. If an individual condones hatred in the form of speech toward a group of people, an organization, or a way of life, and avoids calling for "imminent" action that has the potential to be lawless, the U.S. Constitution will protect this person.
This climactic case has defined and determined the outcomes of similar questions since 1969. The precedent established in Brandenburg v. Ohio is good law. Because the test is so broadly based, the Court has since made additions to speech rules that focus specifically on conquering hate speech issues. It was 1969 when the United States Supreme Court made its landmark decision about hate speech in Brandenburg v. U.S. In that decision, the court ruled that state statutes which placed limits on speech, more specifically hate speech, were in violation of the First Amendment. Following that decision, the Court has routinely overturned state laws which placed undue burdens on the right to speak, regardless of the content. One of the cases in which the Supreme Court examined the constitutional validity of a State statute which placed restrictions on hate speech, came before the court in 1992. RAV v City of St. Paul was that case (112 S. Ct. 2538 (1992)).
In RAV, the petitioner, a minor, was attempting to challenge the St. Paul Bias-Motivated Crime Ordinance, under which they were arrested. The St. Paul Bias-Motivated Crime Ordinance provided, "whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of misdemeanor" (Van Alstyne 259). On June 21, 1990, the petitioner, along with several other teenagers allegedly burned a homemade cross inside the fenced yard of a black family that lived across the street of one of the participants.
This case came initially began before a Minnesota state trial court on the grounds that the statute was"substantially over broad and impermissibly content based. . . and invalid under the First Amendment" (Van Alstyne 259). Because of this belief, the petitioner entered a motion that the court dismiss the charges brought against them. The motion was granted by the trial court, but was reversed by the Minnesota State Supreme Court. The State Supreme Court claimed that the petitioner's actions could "inflict injury or tends to incite violence" (Van Alstyne 259). In other words, the State Supreme Court thought that the State of Minnesota had a more compelling interest to protect its minority citizens, than to protect the petitioner's First Amendment right of free speech.
Following the Minnesota Supreme Court decision, RAV appealed to the United States Supreme Court. He claimed that the Ordinance under which he was arrested was in violation of the First Amendment because it was substantially over broad and was impermissibly content-based. The State continued to maintain that it had an interest to protect its citizens from these types of actions. Upon review, the U.S. Supreme Court, in a unanimous decision reversed the ruling of the Minnesota Supreme Court.
The Supreme Court reasoned that the ordinance was in violation of the First Amendment because it, "prohibits otherwise permitted speech solely in the bias of the subject the speech addresses" (Van Alstyne 264). If the Minnesota statute had prohibited the burning of any wooden object, and not specifically a wooden cross, the Supreme Court would have probably ruled that it was not inviolation of the First Amendment. The Minnesota Supreme Court concluded that it was intended to apply only to "fighting words", and not to bias speech that would otherwise threaten peace. The Supreme Court previously held that fighting words were to be considered an unprotected category of speech. The Court asserted that when a state is regulating an unprotected category of speech, it may not do so in a content-based manner. To uphold the statute would indicate the bias of the state against particular types of speech or expression. The state must remain neutral in regard to the content of speech.
Although the reasoning in Brandenburg and RAV differed, the Court continued to strike down legislation that attempts of ban hate speech. Recently, challanges of state laws that burden speech have not reached the U.S. Supreme Court. Many cases do not go beyond the state level. One such case occurred in March, 1997 in Pittsburgh, Pennsylvania when a local group of Ku Klux Klan wanted to demonstrate on the steps of the City-County building. The mayor of the city refused to grant the KKK the permit necessary to demonstrate. The Pittsburgh chapter of the ACLU filed a law suit on behalf on the KKK, charging that the mayor's refusal to grant the permit was in violation of their First Amendment Rights and was unconstitutional.
Federal Judge Alan Bloch ruled that the mayor had to grant the KKK the proper permit and allow their rally to take place on the steps of the City-County Building. The judge ruled that the Klan be allowed to conduct a "peaceful, nonviolent rally" (ACLU 1). He also ruled that the city must provide adequate safety in order to maintain the peace and order of the city.
Hate speech litigation is beginning to branch out beyond state statutes to include speech codes on colleges campuses. Many campuses have regulations regarding hate speech directed at specific races, nationalities, genders or religions. Protests against this type of regulation began on public college campuses. The courts ruled that state institutions, like statutes cannot place a burden on speech regardless of its content. Recent suits have been brought against private institutions as well.
The first challenge of hate speech codes on private university campuses occurred in 1992 at Stanford University in California. Stanford University had codes which banned speech which, "insulted people based on sex or race" (Workman 1). Stanford University's first hate speech code began in 1988 following an incident in which two white students had drawn racist characters on a poster located outside of a minority dormitory. That code was changed in 1990 because of lack of enforcement. This 1990 code "sought to label speech as harassment only if racist or sexist remarks were personal in nature and not directed at groups as a whole" (Workman 1). This particular code prohibited "hate associated symbols", i.e. swastikas as well.
Stanford argued that California's Leonard Law which granted protections of free speech in private institutions, infringed on the university's right for self governance. The University felt that it had the right to decide what type of behavior would be tolerated on its campus, not the state of California. The California State Superior Court disagreed with Stanford and granted students at private institutions the same First Amendment protection of speech made outside of Stanford's campus. The court overturned the school's speech code because, "it was unconstitutionally broad"(Workman 1). As demonstrated in Brandenberg, R.A.V. and the recent cases on college campuses, laws which place a burden on speech will not be upheld by the courts. The courts are extremely reluctant to allow restrictions to be placed upon speech, even if the content is offensive to some.
The debate between freedom and order has manifested itself in a variety of cases involving the First Amendment. Originally, for a number of years, the Court chose order by allowing state statutes to exist which placed a burden on speech. It was commonplace for a statute to exist which banned a type of speech which was deemed to conflict with the essential order necessary for avoiding a chaotic society. These statutes were rarely disputed in the Court, as the justices seemed content in curtailing hate speech and related issues. This was the case in Beauharnais and continued to represent the position of the Court until Brandenburg in 1969. This case signaled a drastic and climactic change in the barometer of the Court on the issue of hate speech. At this point, the Court shifted gears, thus paving the way for a myriad of rulings which would side with individual freedom of speech and expression as opposed to the "order" of a manageable society. This particular change in tide is exemplified in R.A.V.and is extended through current cases involving hate speech codes on college campuses, including Stanford University.