1- Hate Speech–Should we protect it? And has social media changed the rationale for wide protection of free expression? – PHI 307 Discussion Group 2

2- Purpose
In this discussion board, you will discuss these important cases of hate speech and question why we should or should protect them. You will also address the issues raised by Emily Bazelon’s article, namely, does the existence of social media change the issues about the protection of freedom of speech? Please read her article posted here and post why you either agree or disagree with her thesis.
Collins v Smith
RAV v. City of St Paul

3- Please create a title for your post by putting it in bold, “header 2” as the first line of your text.

Here is the discussion prompt

Answer one of the questions from one of the cases.

Group 2

Case
 RAV vs. City of St Paul (1992)
 U.S. Supreme Court
 505 US 377
Facts
“In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly
assembled a crudely made cross by taping together broken chair legs. They then allegedly
burned the cross inside the fenced yard of a black family that lived across the street from
the house where the petitioner was staying. Although this conduct could have been punished
under any of a number of laws, one of the two provisions under which respondent city of
St. Paul chose to charge the petitioner was the St. Paul Bias-motivated Crime Ordinance,
which provides:
‘Whoever places on public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds to know arouses anger,
alarm or resentment in others on the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a misdemeanor.’”1

Nature of the Case
R.A.V. petitioned “to dismiss this count on the ground that the St. Paul ordinance was
substantially overbroad and impermissibly content-based and therefore facially invalid under the
First Amendment. The trial court granted this motion, but the Minnesota Supreme Court
reversed.” The Minnesota Supreme Court “rejected petitioner’s overbreadth claim because. . . the
modifying phrase ‘arouses anger, alarm or resentment in others’ limited the reach of the
ordinance to conduct that amounts to ‘fighting words,’ i. e., ‘conduct that itself inflicts injury or
tends to incite immediate violence …’” The Supreme Court granted certiorari.2

Issue
Whether or not the St. Paul Bias-motivated Crime Ordinance is valid under the Constitution.

Holding
No (R.A.V.: Unanimous 9 votes. Reasoning was divided. 5 vote majority and 4 votes concurring
for different reasons). The case was remanded and sent back to lower courts for further action.
1 RAV v. St. Paul p. 379-380
2 RAV v. St. Paul p. 380

Reasons for Holding
Justice Scalia and the majority argued “the power to prohibit entirely” does not entail “the power
to prohibit selectively – in other words, to discriminate.”3
[The St. Paul Bias-motivated Crime Ordinance] applies only to “fighting words” that
insult, or provoke violence, “on the basis of race, color, creed, religion or gender. . .Those
who wish to use “fighting words” in connection with other ideas-to express hostility, for
example, on the basis of political affiliation, union membership, or homosexuality-are not
covered.”4
Instead of arguing the ordinance is “overbroad,” the majority argues the ordinance is effectively
not broad enough. The majority held that “fighting words” are not protected by the First Amendment, not because of their content, but because of the way “fighting words” portray that content. The majority argues
“[c]ontent-based regulations are presumptively invalid,” but grants that there are some cases
where regulating content is permitted. Because the St. Paul ordinance only outlaws certain
fighting words, the majority thinks the ordinance is “content-based.” Additionally, the majority
argues the ordinance does not meet any “exceptions” where regulating content is permitted. The
ordinance is therefore said to be invalid.5
The majority further argues that outlawing only specific fighting words disadvantages certain
groups. As an example, Scalia says:
One could hold up a sign saying, for example, that all “anti-Catholic bigots” are
misbegotten; but not that all “papists” are, for that would insult and provoke violence “on
the basis of religion.” St. Paul has no such authority to license one side of a debate to
fight freestyle while requiring the other to follow Marquis of Queensberry rules.6
Rule of Law
“The government may not regulate use based on hostility-or favoritism-towards the underlying
message expressed.”7
Concurring opinions
3 Amar, Akhil Reed (1992: p. 128) ‘The Case of the Missing Amendments: “R.A.V. v. City of St. Paul”’ Harvard
Law Review 106 (1)
4 RAV v. St. Paul p. 391
5 RAV v. St. Paul p. 393-394
6 RAV v. St. Paul p. 391-392
7 RAV v. St. Paul p. 386

Discussion Questions

1. Do you agree with the majority’s reasoning, the minority’s reasoning, or some other reasoning entirely?
2. “What actions might St. Paul take, consistently with the First Amendment, to discourage “hate speech” against its citizens?”
3. “Several justices in the majority in this decision dissented in the Texas v. Johnson flag-burning case. Is it consistent to protect cross-burning but not flag-burning, under the First Amendment?”
4. Under what conditions do you think the government has the right to regulate content (if at all)?

ANSWER

Hate Speech

In Support of the Minority Reasoning in the RAV vs City of St Paul (1992) U.S. Supreme Court 505 US 377 Case

Hate Speech

In Support of the Minority Reasoning in the RAV vs City of St Paul (1992) U.S. Supreme Court 505 US 377 Case

According to the ALA, under the USA law, there lacks a universal or conclusive legal definition of hate speech. Nevertheless, hate speech involves expression forms intended to incite hatred, crime, humiliation, or disparagement against people or groups based on their identity markers and identifiers such as race, color, ethnicity, sexual orientation, or ableism (ALA, 2017). Under the U.S. Constitution, the First Amendment protects hate speech, under freedom of speech. However, this protection is contested when hate speech is criminalized in cases when it incites criminal activities or poses certain threats, and violent behavior targeting specific groups of people. Hate crimes are classified as criminal offenses when it targets people or properties perpetrated depending on various identity markers and identifiers of people (ALA, 2017). In the modern world, freedom of speech is an absolute right, freedom, and core value of democracies as it helps keep the governments on check encouraging public opinion where people can exchange ideas, share information, and conduct debates. However, as Bazelon (2020) argues, this modern age is characterized by increased misinformation, lies, information distortions, and violence-inciting speeches that have been spread widely through social media platforms (Bazelon, 2020).

I agree with Bazelon (2020) that the U.S. faces an information crisis involving “mass distortion of truth and overwhelming waves of speech from extremists that smear and distract” (Bazelon, 2020). She further argues that other democracies have restricted and regulated speech, helping citizens to sort truth from distorted information and have remained strong democracies.  In the USA, this approach should be adopted, as it provides a better framework of protecting freedom of speech (Bazelon, 2020). As seen with Facebook and Twitter, warning and restriction labels are placed in every post or tweet that shows hate speech, disinformation, and unconfirmed claims, thus helping people sort between confirmed, accurate, and unconfirmed, false information. This has widely been seen in President Donald Trump’s Tweets, as I have been following during the election period. Hate and freedom of speech should be protected in the right manner preventing toxic and hate crime, as they provide both benefits and adverse effects in democracies. Following other democracies such as Europe, New Zealand, and Canada, the law allows the punishment of speech full of incitements, spreads disinformation, or racial hatred. Other countries such as France and Germany, develop preventive rules, which should be integrated in the USA.

When reviewing the RAV vs City of St Paul (1992) U.S. Supreme Court 505 US 377 case, I agree with the minority reasoning. This is because; their argument in the case speaks volume on the importance of the First Amendment and the freedom of speech and hate speech in the correct approach showing that it does not suppress ideas rather, the Ordinance is a preventive approach (R.A.V., Petitioner v. City of St. Paul, Minnesota, 1992). It is preventive in that; it restricts speech that is susceptible to violent or criminal situations, aiming at preventing harm or injury and not suppressing ideas.  Moreover, it seeks permission to punish specific criminal acts that could result in social harm. According to the St. Paul Bias-Motivated Crime Ordinance, RAV violates the “to know arouses anger, alarm or resentment in others on the basis of race, color; creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor” (R.A.V., Petitioner v. City of St. Paul, Minnesota, 1992). When RAV burned the constructed cross on the African-American family’s lawn, it was clear he was breaching public peace and order law. The message illustrated was hate speech and malevolence that would instigate anger, alarm, resentment, and a possible crime against the Black Community. Constitutional hate speech requires limitation, as the First Amendment should not protect acts that intend to cause fear or hostility against a particular group of people. It should also not be used to make certain people unsafe in a free, inclusive, and democratic county.

References

ALA. (2017, December 17). Hate Speech and Hate Crime. Retrieved from American Library Association: http://www.ala.org/advocacy/intfreedom/hate#:~:text=Under%20current%20First%20Amendment%20jurisprudence,against%20a%20person%20or%20group.

Bazelon, E. (2020, October 13). The First Amendment in the age of disinformation. The New York Times, pp. https://www.nytimes.com/2020/10/13/magazine/free-speech.html.

R.A.V., Petitioner v. City of St. Paul, Minnesota, 505 U.S. 377 (United States Supreme Court June 22, 1992).