First Amendment of the U.S. Constitution:
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 redress of grievances.
I’ve been thinking about free speech and the First Amendment since the Supreme Court’s recent decision affecting campaign finance law and the shooting that occurred outside a school near a Jewish Community Center in Kansas City. The gunman killed three people and was a known racist who had for years been on the radar for hate speech in which he advocated killing non-whites to keep the white race pure.
Both of these events are related to our right to free speech. Campaign contributions are seen as free speech and are protected and so, too, is hate speech a protected right.
The Supreme Court’s decision last week that struck down the limit on the total amount of money wealthy donors can contribute to candidates and political committees was the fifth since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined the court that agreed with constitutional arguments challenging laws designed to reduce the influence of money in politics.
Those who support the decisions to expand campaign contributions believe that the First Amendment trumps the government’s efforts to control who pays for elections and how much they spend.
Chief Justice Roberts wrote: “There is no right more basic in our democracy than the right to participate in electing our political leaders. We have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.”
The liberal justices sharply disagreed, with Justice Stephen G. Breyer reading his dissent from the bench to emphasize the disagreement. His dissent said the ruling expands on a “wrong-headed hostility” to campaign finance laws that the court’s conservatives showed in the landmark 2010 case Citizens United v. FEC, which allowed corporate spending on elections.
Breyer also wrote, “The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters. Where enough money calls the tune, the general public will not be heard . . . And a cynical public can lose interest in political participation altogether.”
The U.S. Supreme Court has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
- To use certain offensive words and phrases to convey political messages. Cohen v. California, 403 U.S. 15 (1971).
- To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
- To incite actions that would harm others (e.g., “Shouting ‘fire’ in a crowded theater.”). Schenck v. United States, 249 U.S. 47 (1919).
- To make or distribute obscene materials. Roth v. United States, 354 U.S. 476 (1957).
- To burn draft cards as an anti-war protest. United States v. O’Brien, 391 U.S. 367 (1968).
It is fascinating and frustrating that the Constitutional right to free speech has such varied application and to me, is arbitrary and contradictory. You can’t make or distribute obscene materials – really? Then what’s all the legal porn on the market about? You can burn the US flag but not a draft card in an anti-war protest (the protest itself is protected free speech)? It’s okay to advocate for the death of people of certain ethnicities and march in hateful neo-Nazi rallies? (Recall that in 1977 a federal court upheld the right of neo-Nazis to goose-step right through the town of Skokie, Illinois, which had a large number of Holocaust survivors as residents). Recently, the Supreme Court upheld the right of a church group opposed to gays serving in the military to picket the funeral of a dead marine with signs that read, “God Hates Fags.”
Hansdeep Singh, the Co-Founder and Director of Legal Programs for the International Center for Advocates Against Discrimination (ICAAD) says in The Daily Beast:
“We are deluding ourselves if we do not see the parallel between intolerant or hateful rhetoric and its inevitable consequence. Key issues in our national discourse in 2010 correlate to the rise in anti-Muslim hate crimes. For example, the controversy surrounding the Park 51 Muslim community center in lower Manhattan, the building of “mega-mosques” around the country, and the threat by a Florida pastor to burn the Quran on the anniversary of 9/11—all of these instances contributed to a rising anti-Muslim sentiment in America. The vitriolic discourse can also be linked to bias-based violence against other communities. For instance, hate crime against the LGBT community has risen 36 percent from 2005 to 2010. This is in part because of the extreme rhetoric of opponents of the marriage equality movement. Such targeted violence is one symptom of a deeper and more widespread illness plaguing this great nation—the discrimination and “othering” of minority communities.”
Although I believe that a society that can speak freely is a just and free society, I believe we would be a healthier and safer society if we took the “Communitarian” approach in regard to hate speech. Communitarians believe that the community’s well-being is society’s most important goal and that an individual’s right to free speech may be limited in the interests of community harmony. The belief that treating people with fairness and dignity justifies at least some free-speech restrictions-that eliminating or reducing hate speech is a sufficiently compelling goal to justify government regulation. Communitarians would expand the “fighting words” doctrine to allow for increased government regulation.
There are European countries that have more restrictive laws about hate speech and they do not seem to suffer due these restriction nor has it resulted in loss of important rights. The US is an outlier among democracies in granting generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags, many countries outlaw Holocaust denial, and encouraging racial discrimination in France is a crime. Would our right to free speech be so terribly harmed if its hateful expression were limited in place of mutual respect and civility?
Our cherished freedom of free speech has consequences that can be correlated with a rise in violent crimes. Yet, this right is protected so the law can’t do anything until after people die, which is too late. Although, contradictorily, many Asians, Middle-Easterns, Hispanics, and African-Americans are routinely racially profiled, and their rights infringed yet white supremacists can march, spew, speechify, have a strong and offensive presence on the web and in print, and THAT’S OKAY?
I’m disturbed by the lifting of campaign restrictions because it seems that large sums of money equates political power, of which most of us will never have, and this is highly undemocratic. However, just as concerning is the increase in hate speech and the correlation to the incidence of hate crimes.