Freedom of Speech

Living in the United States we enjoy many wonderful freedoms and liberties. Even though most of these freedoms seem innate to our lives, most have been earned though sacrifice and hard work. Out of all of our rights, freedom of speech is perhaps our most cherished, and one of the most controversial. Hate speech is one of the prices we all endure to ensure our speech stays free. But with hate speeches becoming increasingly common, many wonder if it is too great of a price to pay, or one that we should have to pay at all.

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.

When the framers of the constitution penned these 45 words could they have known the extent that they would be studied and scrutinize? Are the words meant to be taken literally or is it the "spirit" to them that is most important? Many views exist and are hotly debated, but most agree that this amendment has enabled some of the best things in the history of our country to be said; and ultimately done. However it has also enabled some of the worst.

When discussing hate speech one has to address fighting words. Fighting words are words that the Supreme Court believes that even the mere utterance of them will inflict injury or incite an immediate breach of the peace. The court also believes these words are unnecessary for anyone to use, and that even if they were not used someone could still express their ideas.

Historically some hate speeches have contained fighting words, but they are view by the court as a separate entity. Fighting words are often classified as having absolutely no social value, and are not protected by the first amendment. In this regard I think that hate speech and fighting words are very analogous to indecent and obscene material. While indecent material might be frowned upon it is constitutionally protected, as where obscene material (also classified as having no social value) is not. This distinction was first made in the early 1940s in the Chaplinsky case.

Chaplinsky was a Jehovah' s Witness, and one day while doing some face-to-face confrontations as part of his religious practices, an angry crowd formed. When an officer stepped in to break it up, Chaplinsky called him a "God-dammed racketeer" and a "dammed fascist". After a conviction in a lower court for offensive speech, and an affirming decision by the Supreme Court, the fighting words doctrine was born. It is worth noting that the fighting words doctrine has not been extended to written works. If someone were to put the exact same thing in a book or an advertisement it could not get the fighting words classification. This is because the expression needs to "incite an immediate breach of peace" and to date no written material has lived up to this standard; the court is looking for a true "verbal attack".

It would seem that in the wake of the Chaplinsky ruling that a hate speech would be a very difficult, if not impossible thing to pull off. So how can the Ku Klux Klan have a rally two days before Martin Luther King Day? And according to one Klan leader, "Protesting the holiday and "Celebrate Robert E. Lee's birthday and talking about Americanism, as opposed to Karl Marx and the philosophy of Martin Luther King. We'll also talk about American sovereignty, imbalance in immigration and the loss of jobs to immigrants," (Associated) Surely during a gathering like this there will be a lot more offensive things said than someone being called a dammed fascist.

The reason groups can get away we these types of meeting has made possible in part by the decision in the case Village of Skokie v. National Socialist Party (1978)

Most hate groups look to schedule rallies and marches in sensitive locations that will be the most offended by their presence, trying to get maximum impact. During the 1970s a neo-Nazi group called the National Socialist Party, scheduled a march in the predominately Jewish community of Skokie Illinois. In attempts to block the group Skokie was one of many communities that had made laws tailored towards stop groups like the National Socialist Party, but these laws for the most part were found to be in violation of free speech rights. When the Supreme Court ruled in the Skokie case they said that one of the main reasons the National Socialist Party rally was protected by the first amendment, and not classified as fight words was because they had announced their plans in advance, and "...a speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen." This is a key point because in a sense it gives carte blanch to any group who simply announce where and what will be said. These days it is not uncommon to see even the most obscure hate group make a public relations- style press release months in advance.

Other issues that often get associated with these laws are that of flag burning, and cross burning. "Symbolic expression" is a phrase often used to describe expression that is mixed with elements of conduct, and pose the question can an action be hate speech? The Supreme Court has made clear in a series of cases that symbolic expression (or expressive conduct) for the most part will be protected by the First Amendment. Several of these cases have been highly controversial; recently it has been Black v. Virginia (2001).

In 1998, Barry Elton Black organized and led a Ku Klux Klan rally in Carroll County, Virginia. At the rally speeches with laden with racial, ethnic, and religious bigotry were made. The grand finale of the event was the burning of a cross 30 feet tall, while listening to Amazing Grace (Fein). Afterwards Black was convicted under the states cross burning statute, but the Virginia Supreme Court promptly reversed the conviction. The court ruled that the state's cross burning laws engaged in content-base restriction which is impermissible under the first amendment. In writing the courts opinion Justice Lemons said, "This goes beyond content restriction, these laws are intended for view-point restriction."

In another recent case, Texas v. Johnson (1989), we see that for better or for worse, flag burning usually receives the same protection as burning crosses.

During the 1984 Republican National Convention in Dallas Texas,