Term Paper: Hate Speech Constitutionality

Pages: 10 (4316 words)  ·  Bibliography Sources: 1+  ·  Level: College Senior  ·  Topic: American History  ·  Buy This Paper

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[. . .] State and local governments could and did take action to restrict speakers, books, films, newspapers, and so on. Restrictions could be based on content and other considerations.

The restrictions of the First Amendment to the federal constitution were not applied to state governments until years later when they were gradually "incorporated" into the 14th amendment that limits action by states. The 14th amendment was adopted in 1868 and states that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;..." Incorporation expanded the meaning of "due process" and thereby limited what states could do to restrict speech. In Gitlow vs. New York (1925) the Supreme Court decided that freedom guaranteed by the First Amendment could not be limited by the states.

Arguments for and against such laws and codes,

The leading edge of any social or political movement cuts a path to recognition by using radical, sometimes outrageous rhetoric. The rhetoric is there to define or redefine the landscape in terms that suit that particular movement. It is there to shake up the prevailing state of affairs. This has been true in this nation from the time of our own revolution to gain independence from Great Britain to the present. Certainly, the British Crown could have considered the Declaration of Independence a form of hate speech.

The Industrial Workers of the World, the labor movement, the socialist movement, anti-war movements, the Black Power movement, poverty marches, veteran's marches, the temperance crusade, women's liberation movement, the anti-abortion movement -- all used inflammatory rhetoric like a blowtorch to burn a hole in the status quo. To demand that people take sides. And see the world differently.

If hate speech were prohibited, socio-political movements could be crushed before they even started.

The current cliche about "civility" in debate may be fine when we all agree to basic premises and we're all well fed and treated equally. We can afford to be polite to one another and chummy. But civility does not serve the downtrodden, the forgotten, the invisible, the persecuted, the hungry and homeless. Civility in pursuit of justice plays to the power structure's selective deafness. To be effective, the voice must be raised, the tone sharpened, the language at a pitch that slices the air. Americans know this at heart -- we were born in a revolution.

Hate speech is not the cause of bigotry, but arises out of it and a sense of plitical and social powerlessness. Allowing those who feel powerless to speak -- no matter how vehement the language -- salves the speaker. Venting frustration, anger and hurt is an important use of language. It may actually short circuit an inclination for physical violence.

However, there are also people who desagree, arguing that some limitation to free speech is not necessarily a bad thing. For instance, in Only Words," Catherine MacKinnon presents her view of the harm done to women in the making of pornography and through the use of pornography. She also discusses the current interpretation of the First Amendment. Her arguments, while often aimed specifically at pornography, are frequently applicable to hate speech.

In the following passage she describes how she and others argued against hate propaganda in a Canadian court case. He argument stresses the hierarchy or inequality promoted by hate speech.

We argued that group libel, most of it concededly expression, promotes the disadvantage of unequal groups; that group-based enmity, ill will, intolerance, and prejudice are the attitudinal engines of the exclusion, denigration, and subordination that make up and propel social inequality; that without bigotry, social systems of enforced separation, ghettoization, and apartheid would be unnecessary, impossible, and unthinkable; that stereotyping and stigmatization of historically disadvantaged groups through group hate propaganda shape their social image and reputation, which controls their access to opportunities more powerfully than their individual abilities ever do; and that it is impossible for an individual to receive equality of opportunity when surrounded by an atmosphere of group hate.

We argued that group defamation is a verbal form inequality takes.... We argued that group defamation in this sense is not a mere expression of opinion but a practice of discrimination in verbal form, a link in systemic discrimination that keeps target groups in subordinated positions through the promotion of terror, intolerance, degradation, segregation, exclusion, vilification, violence, and genocide. "

First Amendment protection of unpopular or offensive speech, major contributing factor to escalation and destructive confrontation is destructive speech. Destructive speech may take several forms, each requiring a somewhat different treatment strategy. In some cases, it involves the use of provocative and insulting names to refer to opponents. Many groups have extremely insulting words they use to refer to opposing groups. These words are often seen as so offensive that they are viewed as what we call "fighting words," provocations sufficiently serious to elicit a violent reaction.. Also destructive is the use of everyday words to condemn others for their evil views or to make vague threats about how the world would be better off if they were to die or simply disappear. In the United States, we refer to this as "hate speech." There are two principal strategies for controlling this type of speech.

One strategy is to precisely define hate speech and then enact laws and organizational policies to severely punish anyone who uses it. For example, in the United States, universities frequently have speech codes which they use as a basis for expelling students found to be guilty of hate speech. Some political jurisdictions in the United States have tried to enact laws prohibiting hate speech as well. These laws empower the police to investigate alleged incidences of hate speech. Guilty parties are tried and punished according to the law.

Opponents of this approach raise two principle objections. First, hate speech can be very hard to precisely define. Statements which some people regard as hateful, others may regard as an honest effort to raise the tough issues. Hate speech prohibitions can also be used as a basis for the suppressing dissent and harassing people. It is almost always possible to accuse people raising difficult issues of hate speech crimes. Even if they're found to be not guilty, the accusation and the adjudication process can be extremely costly and painful. Hate speech laws also violate freedom of speech ideals which so many societies value. They can also have an extremely chilling effect upon efforts to honestly discuss the tough issues which underlie most conflicts. Often, when hate speech prohibitions are in place, people engaged in serious intergroup conflicts simply refuse to talk at all, preventing constructive problem solving and allowing tensions to build.

The principal alternative is a strategy that systematically tries to answer hate speech with good speech. Here, reasonable people on all sides of the conflict make an individual and collective commitment to speak out against hateful communication. For example, if an extremist belonging to a group makes hateful and racist statements, other members of that group will collectively and publicly repudiate those statements in ways that demonstrate that they are not supported by the vast majority of the population. In cases where the extremist's hateful activity results in personal injury or property damage, members of the group can pool their resources to compensate the victims.

Hateful speech is often not intentional. Frequently, people will say hurtful things without thinking about what they're saying and how it might be interpreted. There are, for example, words that have very different meanings for different groups. There are also translation problems and problems which arise when translators tend to make worse case assumptions in their translations. It is also common for members of a group to compete with one another for group approval by trying to make the most clever and most forceful statements against opponents. In these cases, problems can often be minimized through some type of sensitivity training which helps the parties 1) identify statements which are likely to be interpreted in hurtful or hateful ways, 2) understand the consequences of making such statements, and 3) understand alternate and less destructive ways of raising the difficult issues.

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected. However, while bigoted, racist, intolerant or offensive expression are… [END OF PREVIEW]

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