Professor of sociology Tony Cortese analyzes the history of hatespeech and the First Amendment in America in the first of atwo-part series.
College campuses, long known as bastions for dissent and forumsfor free speech, are appearing more and more like legalbattlegrounds. The central issue is the constitutionality ofschools placing limits on when, where and how faculty, students,administrators and staff exercise First Amendment rights. A seriesof lawsuits targeted at abolishing all restrictions on speech hasflooded the courts. The legal challenge represents the sharplyrising discomfort among absolutist civil libertarians, who believethat the range of restrictions of campus speech creates aprecarious chilling effect.
Hate speech has reached near epidemic proportions on Americancollege campuses. Sixty-five to 70 percent of the nation’sethnic minority students have reported some form of ethno-violentharassment. The number of college students victimized byethno-violence is 800,000 to one million annually. In response,some universities have enacted regulations prohibiting hate speech.Such policy has prompted a heated and wide-reaching debate overtheir efficacy.
Some harangue that hate speech regulations constitute a seriousdanger to First Amendment liberties. Others believe that theseregulations are needed to protect the rights of those who have beenand continue to be denied access to equal opportunity.
Those who support regulating hate speech are the minority bothnumerically and sociologically. Ethnic minorities, women, gays andlesbians constitute a large section of tthat group. In essence,this movement is part of a larger struggle against dehumanizationand oppression, born out of passion and hope.
Critical race theory movement takes this approach. Racism isendemic to everyday life. Traditional interests and values arevessels of racial subordination. Races are categories that societyinvents, manipulates or retires when convenient for dominantgroups. Distinguishing physical traits have nothing to do withdistinctly human, high-order traits, such as personality,intelligence, moral judgment and behavior.
Racism has contributed to contemporary markings of groupadvantage and disadvantage along ethnic and racial lines. Thisincludes differences in education, employment, housing, health andhealth care, incarceration, political representation and militaryservice. Such current inequalities and institutional racism can bedirectly linked to earlier periods in which the intent,consequences and cultural meanings of these practices were todominate and subordinate. Consequently, contemporary law and socialcustom must be analyzed from this historical context.
Throughout American history, significant consequences of theFirst Amendment have gone virtually unscrutinized, resulting inunshakable faith in self-righteous principles whose everyday-lifeconsequences are never examined or confronted. It has beensuggested that we rethink some of these issues that have beensilenced in ways harmful to many in our society.
Hate speech is comprised of words that are used to terrorize,humiliate, degrade, assault and injure. It is important to draw onthe minority experience of injury from hate speech to develop aFirst Amendment interpretation that recognizes and responds to suchinjuries. Why is it that death threats, child pornography, fraud,defamation and invasion of privacy are exempt fromfree-speech/expression guarantees while debilitating ethnic andracist verbal assaults are not? A history of ethnocentrism andracism.
CROSS BURNINGS
Until recently, absolutist views on the sacredness of the FirstAmendment have dominated legislation, court decisions and popularopinion. Now, however, cracks are beginning to appear. On April 8,2003, the U.S. Supreme Court upheld a ban on cross-burnings, thusprotecting minorities from racial intimidation at the expense ofsymbolic—albeit hurtful expression. The Court ruled thatstates can punish Ku Klux Klansmen and others who set crossesafire, finding that a burning cross is an instrument of racialterror so threatening that it overshadows free speech concerns. Thecourt voted 6-3 to uphold a 50-year-old Virginia law making it acrime to burn a cross as an act of intimidation. Dissents werebased on free-speech grounds.
Justice Sandra Day O’Connor, writing for the majority,said the protections afforded by the First Amendment “are notabsolute” and do not necessarily shield cross burners.Justice Clarence Thomas, the court’s only black member and alaw-and-order conservative who frequently departs from conventionalcivil rights beliefs, wrote separately “those who hate cannotterrorize and intimidate to make their point.” Cross burningcombines speech with physical threat. Implicit in the speech is athreat of physical harm.
Cross burning — except on private property with theowner’s consent — is a misdemeanor offense inConnecticut.
The Virginia case evoked a mostly bygone era in the South, when”nightriders” set crosses ablaze as a symbol ofintimidation to blacks and civil rights sympathizers.
Not all rulings, however, have opposed regulations orrestrictions on the First Amendment. In 1997, the Ohio StateSupreme Court ruled in favor a member of the Ku Klux Klan who hadadvocated the murder of minority group members. The Court decidedthat the defendant’s speech did not pose an immediatephysical threat to the lives of people of color.
HATE SPEECH IN THE NEW MILLENNIUM
Hate speech is an institutionalized social phenomenon on theincrease that has gained considerable momentum in the newmillennium. The terrorist attacks on Sept. 11, 2001 have given riseto a sharp increase of hate speech and hate crimes against Muslimsand Arabs—or those who are perceived to Muslims or Arabs.
The uprising of the Palestinians against Israel on the West Bankand in the Gaza Strip has been characterized by a lethal cycle ofsuicide bombings followed by severe retaliation by the Israelimilitary, which has been widely condemned. In the United States andthroughout the world, there have been demonstrations against Israelin solidarity with the Palestinian cause. Anti-Semitic slogans areshouted and chalked on streets and walls.
The Internet has become an important vehicle of free speech,even for people living in countries where such freedom does notexist. On the Net, opinions are promulgated, discussions carriedon, activities announced and communication established by hategroups. Every form of censorship or restriction forms a threat tofreedom on the Internet.
The number of “hate” Web sites is increasing,providing opportunities for loners to receive encouragement,affirmation and a sense of belonging otherwise unachievable. Onmany of these sites violence is encouraged, the existence of theHolocaust is denied and the ideology of National Socialism isglorified. Although legal in the U.S., sites like these areforbidden or subject to criminal prosecution in a number ofEuropean countries.
Hate speech against gays and lesbians is also surging. Itprovided support and justification for hate crimes against gays,most notably, the 1998 torture murder of Matthew Shepard inLaramie, Wyo. Such hate speech emanates not only from hate groups,but from mainstream society as well. It comes from the lyrics ofEminem’s rap music as well as some of the homophobic andmisogynist “gansta rap” artists. It comes also from thereligious right. For example, at Matthew’s funeral, FredPhelps, a minister of a Baptist church in Kansas, held a crueldemonstration. He and his followers (almost exclusively relativesby blood or by marriage), demonstrated at the funeral, carryingsigns stating “Matthew burns in hell” and “AIDScures faggots.”
Hate speech against immigrants is also on the rise. The 1990ssaw a record number of immigrants in the U.S. Most of theseimmigrants are people of color, coming from namely Central America,Asia and Mexico. This trend in immigration has been referred to asthe “Browning of America.” Hate speech against recentimmigrants is increasing for three reasons: 1) their record-settingnumbers; 2) their race and ethnicity (they do not look like theEuro-American majority.); and 3) perceived or actual competitionfor scarce resources (decent, affordable housing, stableemployment, social welfare and slots in quality schools).
There has been large increases of immigrants of color from ThirdWorld countries not only in the United States, but also in WesternEuropean nations such as Germany, Great Britain and France. A surgeof hate speech and anti-immigration movements in the hostcountries, including the U.S, has rapidly followed this largeinflux.
In short, hate speech (or support for hate speech) originates,not only in bigoted extremists on the fringes of society but in theimplied approval of ordinary, even decent, folks in mainstreamsociety. Although most people would not commit a hate crime, they,nevertheless, contribute to the production of hate speech andprejudice by sympathizing with it and those who do perpetuate hatecrimes. Moreover, there are those who are otherwise decent that arepassive spectators to bigoted hate speech because they benefiteither economically or psychologically from existing socialarrangements. Although these people do not carry the virus ofbigotry or prejudice within them, they, nonetheless, are withoutthe courage to confront those that spread hate speech and propagatehate crimes.
Although many people believe that bigotry, prejudice anddiscrimination are declining, hate speech is thriving and continuesto adversely impact access to opportunities and serve as a symbolof violence. Some hate speech is more reprehensible than others;not all discriminatory statements are equally serious. There isquite a difference between an offensive remark and an incitement tocommit murder. There is also a fundamental distinction betweenintentional and unintentional discrimination. Is there a limit tofreedom of expression in a democracy, and if so, where should theline be drawn?
Tomorrow: First Amendment changes and words that wound.
