Technology is vastly different today from how it was when the Constitution was ratified in 1788. Creating policy based on the current aspect of their modern society without looking towards an unimaginable future creates the need for clarification on certain topics that were not directly discussed through the Constitution. The First Amendment is one of the most important rights guaranteed to those in America. Means of communication has evolved and changed, meaning that rules, meaning of words, and the interpretation of certain rules and laws must evolve as well.
2018 has seen a rise of hate crimes, threats to those in a suspect or protected class, and the rise of White Supremacy groups. A suspect class is when a decision is made based on race, religion, or nationality (Ekern, Y., Hasmas., J. 2013, pg. 203). Recently there have been marches, open rallies, televisions shows, podcasts, and social media pages, etc… filled with what the average person would consider hate speech. If a derogatory word is used against those of different races and religion and if that word appeared offensive, the speech would be considered by most people as a hate speech. It is often thought about why those who march, protest, and hold rallies can continue to use such hateful speech without an available option for legal action or recourse against the speech maker. The classification of hate speech as a protected right under the First Amendment is an issue that has continuously been challenged in the court system. Those cases that reach the Supreme Court end up setting up a precedent for the future. Speech protected through the First Amendment cannot be regulated or censored by the government and laws that attempt to do such, are challenged.
Appellant in Brandenburg v. Ohio 395 U.S. 444 (1969), Brandenburg, a Ku Klux Klan leader, was convicted of crimes in Ohio relating to a few public speeches he made where he used racial slurs and disparaging words against a protected class. These speeches were then broadcasted by a journalist who was covering the gatherings. The speeches were recorded and were subsequently played in court. On the recordings, Brandenburg could be heard saying things such as “how far is the nigger going to-yeah”, “this is what we are going to do the the niggers”, “bury the niggers”, “let’s give them back to the dark garden”, “freedom for the whites”, “nigger will have to fight for every inch he gets from now on”, “send the Jews back to Israel”, and “we intend to do our part”.
The specific crimes that Brandenburg was convicted under is the Ohio Criminal Syndicalism Act 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, or group assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”. The act sought to punish those who published, displayed or circulated advocacy that justified the commission of violent acts and gatherings where a group would voluntarily assembly to spread and teach those type of language. Brandenburg believed that his conduct was a right guaranteed under the First Amendment as a freedom of speech, so he appealed the conviction. Appellant’s case was overturned because during the indictment and the trial, neither attorneys nor trial judge instructed the jury as to clarify the state’s definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless actions. Although the speeches given by Brandenburg used derogatory words and phrases that could be threatening, the gatherings of the groups themselves could not be seen as a criminal act alone because the protected class was not in imminent danger of bodily harm. Brandenburg v. Ohio set the standards for how far a speech can go before such a speech would be considered a criminal act. Mr. Justice Holmes’ dissent in Gitlow v. New York, 268 U.S. 652, 673 surmised that every idea could be an incitement. The ideas would only be acted on unless some other belief outweighed it or there was a failure of energy that stifles the movement from its inception.If the speech was just speaking in support of violence, the speech would be allowed. However, once the speaker begins to direct the crowd to commit violent acts, that is when the speech is no longer protected under the First Amendment.
A case that relates to the use of derogatory and hateful language was again brought before the Supreme Court in R.A.V v. St. Paul 505 U.S. 377 (1992). Brandenburg was decided a five (5) years after the landmark legislation, The Civil Rights Act of 1964, was enacted. Although Brandenburg’s constitutional question was not related to civil rights, the political environment leading up to the decision could have played a role in the Justice’s decision. R. A. V., v. St. Paul was decided twenty-eight (28) years after the enactment of the Civil Rights Act. We can look to this case and determine if the political, social, and racial status of the nation affect how the Justices decide on cases that question the constitutionality of limited certain types of speech. R.A.V. v. St. Paul is the first case where the constitutionality of hate crime laws are discussed.
In R. A. V., v. St. Paul, Robert Viktora, a white teeenager from St. Paul, Minnesota, joined some of his friends to burn a homemade cross on a lawn belonging to an African-American family. The teenagers were arrested and charged with a misdemeanor under a St. Paul ordinance that prohibited displays of symbols which would cause anger, alarm or resentment to arise in others on the basis of race, color, creed, religion or gender. In a unanimous decision, the Supreme Court dismissed the charges against R.A.V. The content based discrimination in St. Paul’s ordinance was ruled as not protected under the First Amendment because as Justice Stevens believed, the ordinance was not directed towards speech of a specific content, but towards particular, resulting injuries that are “qualitatively different” from other types of injuries. It was not foreseeable which phrases could result in the particular injuries based on the content of a speech. The Justices were in agreement that although cross-burning is wrong, but the First Amendment does still does not permit St. Paul city counsel to enact prohibitions on those who choose to express their views on a disliked, unsavory subject. The argument that a particular speech can be prohibited based on a feature such as obscenity, but not on the basis of another, such as an opposition to city government is applicable in many contests. Actions such as burning the flag in violation of an ordinance against dishonoring the flag is not punishable. However, an ordinance banning the burning of a flags in order to prevent outdoor fires would be a permissible statute for the city counsel to pass and would not infringe on the First Amendment rights of the citizens.
In addition to the hate speech subject, R.A.V. v. St. Paul also addresses why “fighting words” are excluded from protections for the purposes of the First Amendment. Fighting words are not protected because of the nonspeech element of the communication. Fighting words can be used to convey an idea, but since those words only sound threatening, the government may not regulate such speech based on hostility or favoritism towards the underlying expressed message. As narrowly constructed of an ordinance as St. Paul’s ordinance, the Court found the ordinance unconstitutional on its face.
Westboro Baptist Church is a well-known church from Topeka, Kansas formed in 1955 and began picketing in 1991. The Church is well known because of their picketing of the funerals of fallen soldiers, the picketing of the Lesbian, Gay, Bi, Trans (LGBT) communities, Muslims, and even people with AIDS (SPLC Center). This group is known to create major disturbances at events held by those who the Church opposes. A funeral for a soldier who was killed in action in Iraq was eventually picketed by members of the Westboro Church. Although the church members were peaceful, the members displayed signs that stated, “Thank god for dead soldiers”, “You’re going to hell”, and “America is doomed”. The family of the fallen soldier sued the founder of Westboro Baptist Church, Fred Phelps, his daughters, and the Westboro Baptist Church who were collectively called Phelps in Snyder v. Phelps, 580 F.3d 2016 (2011). Plaintiffs Snyder sued Phelps for civil conspiracy, the state tort claims of intentional infliction of emotional distress, and intrusion upon seclusion. At the conclusion of the Jury trial, the jury held Westboro Baptist Church liable and awarded Plaintiffs millions of dollars in punitive damages and compensatory damages. Westboro appealed the verdict, stating that the verdict was excessive and that his First Amendment rights were violated.
The Fourth Circuit Court reversed the jury’s verdict, finding that Westboro had the First Amendment right to have those signs because the statements on the signs were matters that concerned the public. Speech that relates to topics that concern the public are regarded as the “highest rung of the hierarchy of First Amendment values” and was therefore entitled to special protection. Connick v. Myers 461 U.S. 138. For state tort suits, including intentional infliction of emotional distress, the First Amendment can be used as a defense. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46. It is irrelevant if a statement is controversial or inappropriate. The question of whether the statement deals with matter of public concern supersedes the controversial and inappropriateness of the statement. To determine if the statement is a matter of public concern, the Justices analyzed the content, form and context of the statements made by Westboro and examined if the signs plainly relate to public, rather than private, matters. The placards highlighted issues of public importance such as the political and moral conduct of the United States and its citizens, the fate of the Nation, homosexuality in the military, and scandals involving the Catholic clergy. The manner in which Westboro conveyed its views on those issues was designed to reach as broad a public audience as possible. Even if some of the signs were viewed as containing messages related to a particular individual, that alone would not change the fact that the dominant theme of Westboro’s demonstration spoke to broader public issues.
The signs reflected Westboro’s condemnation of many aspects of the modern society and it cannot be argued that Westboro’s use of speech on public issues was in any way deliberately created to protect a personal attack on Plaintiffs from liability. Any rules limited when and where Westboro could picket was beyond the reach of the government. Maryland now has a law restricting funeral picketing but that law was not in effect at the time of these events, so the Court could not consider whether that law placed a restriction on the reasonable time, place, or manner under the standards announced by this Court. The special protection afforded to Westboro Baptist Church barrs Plaintiffs from recovery from intentional infliction of emotional distress or the tort of intrusion upon seclusion. Plaintiffs argued that were members of a captive audience at the soldier’s funeral, however, the captive audience doctrine was applied sparingly with regards to this case and was not expanded to the circumstances of this case. Westboro stayed far enough away from the memorial service, where Plaintiffs could see no more than the tops of the picketers’ signs, and there is no indication that the picketing interfered with the funeral service itself. Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. It did not disrupt the soldier’s funeral, and its choice to picket at that time and place did not alter the nature of the speech’s contents. Because the United States has chosen to protect even hurtful speech on public issues to ensure that public debate continues unrestricted, Westboro should therefore be shielded from tort liability for its picketing in this case.
Another case that answers questions relating to the constitutionality of laws passed that give the impression of the government infringing on First Amendment rights comes from Roth v. United States 354 U.S. 476 (1957). The question before before the Court is whether the federal obscenity statute violated the provision of the First Amendment that prevents the government from restricting speech. Plaintiff Roth was the operator of a book selling business that operated in New York. Roth was convicted by a jury of mailing and circulating obscene magazines, advertisements, and an obscene book in violation of a federal obscenity statute. During trial, the Judge defined the words “obscene, lewd and lascivious” as they were used in the laws for the jury. The judge described these words as forms of immorality that related to sexual impurity and could excite lustful thoughts.Roth appealed the Jury’s verdict and the Court of Appeals affirmed the Jury’s verdict. Roth’s case was combined with Alberts v. California, where a California obscenity law was challenged by Alberts after his conviction of a similar crime for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. In Alberts, Plaintiff waived his right to a jury trial and was subsequently convicted by a judge in the Municipal Court of Beverly Hills under a misdemeanor complained. Plaintiff Alberts appealed this conviction to the Appellate Department of the Superior Court of California where Albers conviction was affirmed. Although Roth also contained questions relating to actions taken by the state that infringed upon the Due Process Clause of the Fourteenth Amendment, the rulings Roth set precedent for was its answers to the questions relating to the infringement of First Amendment rights.
The Court’s findings held that forms of speech that contained obscenity were not within a constitutionally protected area of speech or press. The Court noted that the First Amendment was not intended to protect forms of expression or every utterance, such as materials that were “utterly without redeeming social importance”. The rejection of Plaintiffs’ claims proved that regardless of the history of First Amendment rights, obscenity should be restrained as obscenity is universally judged even on international level. With explaining the ruling, the Justices used the holding in Beauharnais v. Illinois that contended that obscene language would not be a clear and present danger because the speech would only be punishable upon proving such circumstance. The portrayal of sex itself in this case would not be sufficient reasoning to deny the material its protection guaranteed under the First Amendment. The Justices held that the statutes applied in Roth and Alberts were correctly applied according to the standards that judge what is and what is not obscene and that the actions of the State or Federal statute did not go against the constitutional safeguards against prosecuting those based on protected material nor did the state and federal government fail to give those who are acting against those statutes ample time to correct the prohibited acts. Obscenity is not considered an expression protected by the First Amendment.The Court used the ruling in United Public Workers v. Mitchell, 330 U.S. 75, 95-96 to base their ruling. United Public Workers v. Mitchell found that Congress had the constitutional power to exercise federal statutes over federal workers. Just like in Snyder v. Phelps, the issue relates to matters that concern the public with the difference being the level of harm the certain speech can cause to the public as a whole.
Reviewing the above cases demonstrate how constant constitutional challenges arise and why it is important for the Justices to continuously clarify the meaning of the Constitution and determine the limits to citizens of the United States have. Regardless of how hurtful statements may be, there is no crime against that statement until the statement is directing and encouraging others to go and commit crimes. The speech may also be persuasive in nature without directly directing the audience to commit crimes. The only speech that is not protected are those that go against public, moral standards. Obscene speech is one of the few types speech that the government can regulate. With the divisive political environment as of recent, an average citizen who has been called derogatory names has no legal recourse because according to Black’s Law Dictionary, hate speech is not crime. If the speech was offensive and hurt the feelings of the targeted class, the speech would still not be considered a crime. If one were to yell offensive phrases at another person who was across the street, this behavior would still not be considered a crime until an element of action or imminent danger is added. As a determinant for classifying such speech one must be able to “establish distinctions between mere advocacy and incitement to imminent lawless action”. De Jonge v. Oregon, supra, at 364. Taking the facts of the cases together as reviewed above, matters that concern the public are important and are taken into consideration when ruling on what is and what is not protected under the First Amendment rights to Freedom of Speech.