A Robust Conception of Speech: Hate Speech and the First Amendment

Published in Volume 1, Number 1 of the Journal.
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  51 A ROBUST CONCEPTION OF SPEECH: HATE SPEECH ANDTHE FIRST AMENDMENT Preston D. Mitchum*   I. INTRODUCTIONThe United States Constitution does not grant rights toAmericans. 1 On the other hand, the Constitution assumes those rights exist, and restricts the government from interfering with them. 2  According to John Stuart Mill, “[w]e can never be sure that theopinion we are endeavoring to stifle is a false opinion; and if we weresure, stifling it would be an evil still.” 3 A common form of speech that the government intends toprevent is ‘hate speech’ because some critics argue that it has noIn other words, individualshave a fundamental right to freedom of speech without governmentalintrusion, even though his or her speech may be untrue. If Mr. Mill iscorrect in his assertion, then the First Amendment’s Free SpeechClause is undoubtedly the most powerful right that individuals retainfrom the Bill of Rights and the United States Constitution. *BA, Kent State University, 2008; J.D. Candidate, North Carolina CentralUniversity School of Law, 2011. First, I would like to thank God because withouthim, nothing is possible. Second, I would like to thank my mother, Carla Owens,and my grandmother, Lillie Jean Thompson. Words cannot express howappreciative I am of their love and support. Third, I would like to thank my sisters –LeShanua, Ebony, and Jahmeelah. I can only hope that I can be an inspiration tothem like they are to me. Lastly, I would like to thank my mentor, Professor BrendaReddix-Smalls, and my family and friends for their support throughout this lawschool journey and my lifelong dream of becoming an attorney. 1 Ronald J. Rychlak, Compassion, Hatred, and Free Expression , 27 MISS . C . L . REV .407, 408 (2008). 2   Id.   3 J OHN S TUART M ILL ,   O N L IBERTY 90-91   (Penguin Books Ltd. 1974) (1859).  52 value in the marketplace of ideas. 4 However, the idea that everycitizen is entitled to free speech is indeed a misnomer. 5 Third, picture an Asian man entering Kent State University,located in northeastern Ohio. Already nervous because of the cultureshock, his nerves soon turn into trepidation when he learns there are19,918 undergraduate students, and only 316 are Asian.Below arethree hypothetical scenarios of extreme hate speech. In eachexample, the First Amendment has been extended to the point of noreturn to safeguard the speaker.First, imagine a middle-aged Black woman walking down thestreet in a rural part of Mississippi. She hears voices from across thestreet, but unfortunately cannot make out the speech. Suddenly,someone exclaims, “stupid black bitch!” Immediately offended, sheruns into her apartment to seek refuge. Finally escaping, she calls thelocal police to file a police report. To her surprise, the Sergeantresponded that she would be able to file a report, but it would notmatter because her neighbors were simply exercising their “freedomof speech.” Although the words were hateful, they were entitled toconstitutional protection. Would John Stuart Mill agree with thisphilosophy or would he believe this woman would have a cause of action for hate speech or fighting words?Second, envision a Muslim woman running late for a flight atJohn F. Kennedy, International Airport. This departure is necessarybecause the next flight does not leave until the following businessday. She begins to rush through security, and officers are alertedunexpectedly. In astonishment, she asks, “Did I do somethingwrong?” Refusing to answer her question, one of the officers grabsher arm, and forces her into the police room in the airport. Otherpassengers are frustrated with the amount of controversy this womanis allegedly causing. Suddenly, an older Caucasian gentleman shouts,“She is a terrorist and is attempting to destroy our country . . . Weshould have kicked them out of America after September 11th!”Does this woman have to listen to these untruthful and provocativecomments or is his statement protected by the First Amendment? 6   4   Id. 5   Id. at 66. 6   Student Body Profile: Excellent in Action – By the Numbers , (last visited Nov. 13, 2010). Deciding to  53 make this an incredible educational experience, he enters his firstcourse of the Fall Semester -- “American Politics.” Considering thelast two rows were unavailable, he walked to the very front row,which was in front of the professor. Class began at 10:00 a.m., and tohis dismay, the time was 10:15 a.m. The aggravated professor turnedhis head and in disbelief uttered, “I thought ‘chinks’ knew how to telltime. Thanks for proving me wrong.” Embarrassed anddumbfounded, the student makes an immediate exit from theclassroom. Will this be another instance when the First Amendmenttrumps an individual’s right to refrain from hearing such offensiveremarks?Granted, the hypothetical scenarios are extreme, however theyare plausible experiences and because of First Amendmentprotections, people who wish to make repugnant statements arepermitted to do so under the freedom of speech.This paper will examine the doctrinal framework of fightingwords and hate speech. While this paper will address how thelegislature and judiciary should change regulations as times change, italso focuses on case law and statutory authority that infringes on anindividual’s right to free speech under the First Amendment. Next,this paper will analyze the purpose of the First Amendment’s FreeSpeech Clause . This paper will observe that while people may beoffended by distasteful comments, the government should not createhate speech restrictions solely for this reason. Furthermore, this paperwill consider the role of a “well-ordered society” in creating hatespeech regulations. In addition, this paper will discuss racist hatespeech and its possible harm on society. Lastly, this paper will unveilthe dilemma between hate speech policies at private and publicuniversities.II. HISTORICAL BACKGROUND OF THE FIRST AMENDMENTThe First Amendment to the United States Constitution wasratified in 1791. 7 Pursuant to the First Amendment, “Congress shallmake no law respecting an establishment of religion, or prohibitingthe free exercise thereof; or abridging the freedom of speech, or of thepress; or the right of the people peaceably to assemble; and to petitionthe Government for a redress of grievances.” 8   7 U.S.   C ONST . amend. I. Historically, each 8   Id.  54 freedom carries significant weight, but the most important freedomsare arguably speech and press; 9 and the prohibition of these freedomsis unquestionably the reason the First Amendment was enacted. 10 In 1798, Congress adopted the Alien and Sedition Acts of 1798 .If this right were detached from personal liberties, then the“marketplace of ideas” that proponents espouse would bemeaningless. Hate Speech and the Alien and Sedition Acts of 1798 11 The Alien and Sedition Acts of 1798 resulted from divisionsbetween the Federalist and Republican parties. 12 In anticipation of apossible war with France, the predominantly Federalist Congressenacted four laws. 13 [F]alse, scandalous, andmalicious writing or writingsagainst the government of theUnited States, or either house of the congress of the UnitedStates, or the President of theUnited States, with the intent todefame . . . or to bring them . . .into contempt or disrepute; or toexecute against them . . . hatredof the good people of the UnitedStates, or to stir up seditionThe Alien and Sedition Acts prohibited thepublication of: 9 E RWIN C HEMERINSKY ,   C ONSTITUTIONAL L AW 1205 (Aspen 3d ed. 2009). 10   Id. at 1206. 11   Id.   12 Wayne D. Moore, Reconceiving Interpretive Autonomy: Insights from Virginiaand Kentucky Resolutions , 11 C ONST .   C OMMENT . 315, 317 (1994). 13 1 Stat. 596, Act of July 14, 1798 (“In 1798, the Federalist-controlled Congresspassed four acts to empower the president of the United States to expel dangerous  aliens from the country; to give the president authority to arrest, detain, and deportresident aliens hailing from enemy countries during times of war; to lengthen theperiod of naturalization for immigrants.”).
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