Hate Speech

Hate Speech Unique among courts in the world, the Supreme Court has extended broad protection in the area of hate speech—abusive, insulting, intimidating, and harassing speech that at the least fosters hatred and discrimination and at its worst promotes violence and killing. The justices have consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overly broad. Only by protecting all forms of speech can the public be assured of uninhibited, vigorous, and wide‐open debate.

Still, many Americans argue for speech codes as a way of limiting hateful expression. During the 1980s and 1990s many college campuses passed these regulations as a way of protecting historically underrepresented groups. To support their position they invoked the fighting words doctrine articulated by Justice Frank Murphy's unanimous opinion in Chaplinsky v. New Hampshire (1942). Murphy defined fighting words as those that neither contributed to the expression of ideas nor possessed any social value in the search for truth and that incited an immediate, violent response.

With the Chaplinsky exception in mind, the Court has generally given broad scope to speech that some would classify as hateful. In Brandenburg v. Ohio (1969), the justices per curiam opinion upheld the right of the Ku Klux Klan to call publicly for the expulsion of African Americans and Jews from the United States, even though the speech in question intimated the desirability of using violence. The justices held that unless the speech was intended to cause violence and had a high likelihood of producing such a result imminently it was protected by the First Amendment. “The constitutional guarantees of free speech and free press,” the Court wrote, “do not permit a State to forbid or prescribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite or produce such action” (pp. 571–572).

The Brandenburg test has proven nearly impossible to meet. For example, in the famous Skokie cases of 1978, the justices denied a writ of certiorari from the Seventh Circuit Court of Appeals that had affirmed the right of Nazis to march on a public street in a community populated with World War II concentration camp survivors. And the Court in R.A.V.v. City of St. Paul (1992) invalidated an antibias ordinance under which several teenagers were convicted of burning a cross on an African‐American family's lawn. Justice Antonin Scalia, writing for a unanimous Court, reasoned that “[t]he First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. … In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination” (p. 391).

While the Court has not ruled specifically on campus speech codes, the precedent of R.A.V. makes clear that the justices are unlikely to disturb a host of lower court rulings that have struck down these regulations.

Bibliography

Floyd Abrams , Hate Speech: The Present Implications of a Historical Dilemma, in Between Speech and Silence: Hate Speech, Pornography and the New South Africa by Jane Duncan (1996), available at http:/kern‐2pt/fxi.org.za/books/chap7.htm.
Samuel Walker , Hate Speech: The History of an American Controversy (1994).

Kermit L. Hall