Hate Seech

HATE SPEECH

The First Amendment to the Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In the historical examination of hate speech, the First Amendment is immediately called into question and, in particular, (as you could probably deduce) the tidbit about “prohibiting abridging the freedom of speech”. Throughout history, various cases have arisen which have served to define the Supreme Court’s views and the constitutionality of hate speech. The decisions in recent cases such as Hustler Magazine v. Falwell (1988), American Booksellers v. Hudnut (1986), Wisconsin v. Mitchell (1993), and Virginia v. Black (2003) have enacted certiorari that is based upon the Court’s interpretations of the extent to which the expression of hate compromises free speech.

Hustler Magazine v. Falwell represents a decision which regards the compensation of damages initially rewarded to public figure. Initially Jerry Falwell, a nationally known and respected minister who was also a frequently active political commentator, sued Hustler Magazine for a slanderous ad-parody in one of the issues that damaged the minister’s public reputation. Falwell was rewarded with 200,000 dollars in damages, yet Larry Flynt, head of Hustler Magazine, appealed the decision which then ended up in the Supreme Court. So in this particular Supreme Court analysis, Hustler Magazine is the petitioner and Jerry Falwell (hot-shot minister) is the respondent. The specific ad that caused all the commotion revolved around Campari Liqueur. Campari, a popular drink back in the day, utilized an ad campaign that featured the double entendre of the “first time”. Essentially, these ads would depict famous movie stars discussing their “first time” in what appeared sexually motivated, but in reality was actually depicting their first time drinking Campari (those gosh darn, sneaky ad execs). Well, Hustler Magazine capitalized on this campaign and fashioned their own parody of these ads which depicted Falwell incestuously talking about his first time with his mother in some outhouse while disguising it as a Campari ad, but this time the double entendre was reversed. Comical yet slanderous and downright wrong remarks such as, “Mom looked better than a Baptist whore with a $100 donation.” At the bottom of the page though, “ad parody—not to be taken seriously” appeared. This case introduces a fundamental argument about the First Amendment limitations in protecting a citizen from intentional emotional distress. Yet the loophole in this argument that forced the examination of its constitutionality results from the concept of a public figure. Jerry Falwell is indeed a public figure and the reason this is important is succinctly summed up by Justice Frankfurter who said, “One of the prerogatives of American citizenship is the right to criticize public men and measures.” Thus the ensuing argument of does our prerogative as American citizens to criticize public figures outweigh the reaches of the First Amendment? And should the fame of an individual force them to withstand vicious ridicule and slander? Ultimately, the “court held that the First Amendment gives speakers immunity from sanction with respect to their speech concerning public figures unless their speech is both false and made with the knowledge of its falsehood or with reckless disregard for the truth of the statement.” Since the ad parody was both false and, at the same time, made no attempt to verify the false statement being made, the court reversed the decision. Thus, Flynt didn’t have to pay the 200,000 grand to Jerry Falwell on the grounds that Falwell was a public figure and that ad parody was falsely false.

American Booksellers vs. Hudnut features the respondent William H. Hudnut (the mayor of Indianapolis) and the petitioner American Booksellers. This case revolves around the controversial issue of pornography and the constitutionality of these so called “skin flicks” (and all other forms). The constitutionality was called into question because of the distinctions between “obscenity” and “pornography”. “Obscene” defined by the Miller v. California case in 1973 means “a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value.” The Indianapolis statute under question states that pornography is "the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:
(1) Women are presented as sexual objects who enjoy pain or humiliation; or (2) Women are presented as sexual objects who experience sexual pleasure in being raped; or (3) Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; or (4) Women are presented as being penetrated by objects or animals; or (5) Women are presented in scenarios of degradation, injury abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or (6) Women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display."

(use of men, children, and transsexuals are can be replaced with women in any of the paragraphs).

Yet the problem here is that this ordinance refrains from commenting on having lustful interests, offensiveness, and the standards of a community.

In the case Wisconsin v. Todd Mitchell, the Supreme Court rules on the constitutionality of offensive thought. The background here is that Wisconsin has a Penalty-Enhancement Provision which enhances the penalty of a crime if the defendant “intentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . .”. Todd Mitchell (an African American) was charged with aggravated assault on a white boy, but once it was found out that Mitchell had selected a white person in advance to beat up, the maximum sentence was bumped up significantly. The overwhelming constitutionality that is introduced with this case surrounds the interpretation of words. Under the precedent of R.A.V v. St. Paul (1992), “Wisconsin legislature cannot criminalize bigoted thought with which it disagrees....” The reasoning is that the term “bigoted” is entirely too subjective, meaning bigotry is difficult to classify. Mitchell argued that since the penalty enhancement provision referred to bigoted thought rather than merely “conduct” it is unconstitutional in terms of the First Amendment. Furthermore, Mitchell argued that this provision provides a “chilling effect” on free speech in that people everywhere would avoid all association with bigotry in fear that it would enhance the punishment of some un-related crime. While the Wisconsin Supreme Court overruled Mitchell’s punishment, the Supreme Court remanded the case back to lower courts stating that bias motivated crimes lead to negative side-effects. In addition, the Supreme Court deemed Mitchell stances on bigoted thoughts and chilling effects far too speculative to be considerable.

Finally, Virginia v. Black features hate expression in terms of cross-burning. The respondent, Barry Elton Black, a Klu Klux Klan member was convicted of violating Virginia’s cross-burning statute that reads, “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.” Additionally, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” The constitutionality in this case is based upon the “prima facie” or immediate evidence provision of this statute. In 2003, Black held a Klan gathering in Virginia 350 yards away from a highway road. This gathering concluded with the group burning a 25 foot cross. Sheriffs saw this demonstration and arrested Black on the spot on charges of cross-burning. Black appealed his conviction by stating, “the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint.” His stance was that the symbolism of cross-burning demonstrates a shared ideology among Klan members, rather than an act of intimidation. Therefore, since cross burning can be identified as a shared ideology, then cross-burning must not be prima facie. The Supreme Court made a ruling that upheld the unconstitutionality of cross-burning in general, but also deemed the Virginia statue unconstitutional which reversed Black’s sentence. Their mentality was that cross-burning is a criminal offense, but only if intimidation is proven. Therefore, in the state of Virginia, cross-burning is not prima facie and intent must be proven.

Bennett