Law vs. Politics – The First Amendment Allows Hate Speech

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Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. - Dr. Martin Luther King Jr.

In the aftermath of the tragedy in Charlottesville, Virginia, many people may have questions regarding the interplay between hate speech and the First Amendment. Before diving into the speech protections offered by the First Amendment, it is important to understand the difference between law and politics, and how enforcing the rule of law provides greater political freedom.

The law should inherently reject politics. The judicial branch prides itself on leaving the social policy decisions to the elective branches of government and interpreting those policy decisions in a neutral way, ensuring all of our citizens are treated equally and fairly. Americans are, and should be treated, equal. The color of our skin should not determine the outcome of our legal case anymore than our political affiliations, and the judiciary’s role is to play the neutral arbitrator. It is on this basis that we can truly appreciate the value of the First Amendment, even if it sometimes magnifies darker natures of our political culture.

The First Amendment provides expansive protection to all types of speech, even what may be considered “hate speech.” Considering the context of recent events, the seminal Supreme Court decision Brandenburg v. Ohio provides a timely answer to whether or not the speech on display in Charlottesville was protected. In 1966, Clarence Brandenburg was convicted under an Ohio law for “’advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” [1]

Brandenburg was a Ku Klux Klan leader who was filmed giving a speech filled with racist and anti-semitic language. The only other members in the crowd were also Klansmen and were filmed holding clubs, pistols, and other weaponry. The prosecutor in the case attempted to demonstrate that Brandenburg was advocating violence because he had initiated a call to arms, to march upon Washington D.C. on July 4th while members of the audience held weapons. The Supreme Court threw out his conviction in 1969 and established the litmus test for when violent speech crosses the line. “[T]he 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.”[2]

This permitted prohibition of speech puts cities and towns hoping to censor white supremacist protests in a complicated position. Cities are not allowed to presume that white supremacists’ speech will result in a call for “imminent lawless action” simply because the speech is abhorrent. People can say all sorts of evil and emotionally scarring words without instructing others to commit violence or break the law. The crux of the problem is that it is impossible to tell if speech will “incite” lawless action until after it has been spoken. Moreover, the speech itself must advocate the lawless action, not be so offensive that it produces lawless action as a result. For lighthearted example, praising Duke Basketball in Rupp Arena may incite a lawless backlash from the audience, but the speech itself does not advocate for that lawlessness. Similarly, governments cannot ban politically unpopular speech because they fear people offended by the speech will commit violence themselves.

In case you disagree with a Supreme Court case decided around the Civil Rights Era, consider a case decided this year. In Matal v. Tam, Simon Shiao Tam, the leader of an Asian rock band, had been bullied growing up because of his Asian descent. He was treated as a lesser person because of his heritage. However, he and his band mates had great musical talent. They agreed to name their band the “Slants” to claim back a word used to hurt them, and turn their bullies’ ignorance into artistic profit.[3] However, the United States Trademark and Patent Office denied Tam’s genuine request because the government considered it “derogatory.” Mr. Tam won his case by unanimous consent of the United States Supreme Court, a fete not accomplished often in these days of differing opinions. “We have said time and again that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.’”[4] “The law thus reflects the Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint discrimination.”[5] Thus the law and the First Amendment command the government to give these unpopular individuals the same rights to assemble and speak as it does others, because the law rejects political views.

But this does not mean the derogatory speech in Charlottesville must be given a pass. The brilliance of the First Amendment is that it gives all citizens the same equal voice and the same equal body to march. Like Mr. Tam, anyone can use their voice to turn hate thrown at them into their own empowerment. In fact, most social change that has occurred in this country’s history is because of those strong willed citizens that make great sacrifices for their beliefs in spite of bigotry.[6]

This brings us to the political side of the equation.  On Monday, the Moon will eclipse the Sun for a brief period, but it does not mean that the Sun is no longer present. Masking unpopular speech through censorship will not eradicate it, but cause those holding the censored beliefs to burn hotter. Show them that your star burns even brighter, and use your own rights to tell them their speech is unwelcome in a civilized society, but do so without inciting imminent lawless action. Politically unpopular speech cannot be legally suffocated, but it can be publicly drowned. It can be drowned under the deep, torrential voices of public opinion. In the heat of protest, it is better to prove a group is politically unpopular with numbers and volume than by legal documents and wooden gavels, or by clubs and pistols.

 

[1] Brandenburg v. Ohio, 395 U.S. 444, 44-45 (1969).

[2] Id. at 448.

[3] NPR Planet Money

[4] Slip page 22-23 (plurality portion III-C concurred by C. J. Roberts, J. Thomas, and J. Breyer)

[5] Slip page (concurring with III-A as portion of unanimous opinion J. Kennedy, J. Ginsberg, J. Sotomayor, and J. Kagan, Lower Slip . 2-3)

[6]Martin Luther King Jr.