Legal History

Ariadne's Thread is designed to help you work out and defend your own views on the complicated subject of hate speech. The focus is chiefly on racist speech. Some fairly non-controversial history and commentary may serve as an introduction. Even this history, however, will show that what counts as hate speech is unclear, the rationale for protecting it varies, and American courts have been somewhat inconsistent in how they have dealt with the issues over the last 50 years. At the very least, this history can clarify some of the legal issues that must be resolved in order to develop a reasoned position on hate speech. In addition, there are closely related issues in moral and social philosophy that must be considered.

If we view the question on a broader scale, we discover that many countries besides the United States have considered the problem of hate speech, and some have adopted laws to restrict it. Even some countries that have very few restrictions on speech in general have adopted legal or constitutional restrictions on hate speech. In other words, many countries regard hate speech as having an especially poisonous effect on social life. In the United States, however, we have tended toward another view that emphasizes the value of unrestricted debate.

The First Amendment

The Constitution of the United States was drafted in 1787, ratified in 1788, and put into operation in 1789. The 10 amendments constituting the Bill of Rights were adopted in 1791. The first of these restricted the new government's powers with regard to speech and the press:

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.

Interpretations of the First Amendment are at the center of the legal debates about free speech and hate speech. Like many articles in the Constitution, the exact meaning of the first amendment and the implications it had for the founding fathers are unclear. It provides a general orientation for federal action, but just how it is to be made operational is open to discussion. The conclusion reached will depend on the overall interpretive framework one uses. These frameworks, in turn, will merge into one's political and social philosophy. For example, at the time of its adoption, many thoughtful people believed that government should not prohibit the publication of one's views but could and should punish some writers for the harmful effects of such publication. This view, while plausible, is not the dominant interpretation at the present time.

The Constitution does not offer a rationale or ground for a broad principle of free speech. Is speech to be unrestricted because efficient democracy requires it? Because it will facilitate the discovery of truth? Because people have a natural right to speak their minds? The Constitution itself offers little guidance. But the rationale may be crucial when applying the general principle to difficult cases. Again, the rationale is supplied by one's interpretive framework, which in turn is closely associated with one's political and social philosophy.

State Action

On the face of it, the First Amendment applies only to the federal congress. It says nothing about what state or local governments may do to restrict speech or the press. Until well into the 20th century, this view of the First Amendment was dominant in the courts. State and local governments could and did take action to restrict speakers, books, films, newspapers, and so on. Restrictions could be based on content and other considerations.

The restrictions of the First Amendment to the federal constitution were not applied to state governments until years later when they were gradually "incorporated" into the 14th amendment that limits action by states. The 14th amendment was adopted in 1868 and states that:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;…"

Incorporation expanded the meaning of "due process" and thereby limited what states could do to restrict speech. In Gitlow versus New York (1925) the Supreme Court decided that freedom guaranteed by the First Amendment could not be limited by the states.

The First World War

The First World War forced both federal and state governments to examine their ideas and policies on freedom of speech and association. There was considerable opposition to American involvement in the war; and as that involvement increased, several issues and organizations emerged.

Did Americans have the right to speak and write against American involvement even after war was declared? Did the federal government have the right to draft men for military service? Could antiwar and anti-draft organizations publish and use the mails to distribute their literature? Could they urge men to resist the draft? The older view of the First Amendment would allow for restrictions.

In 1917 the federal government passed the Espionage Act, which made it a crime to "willfully obstruct the recruiting or enlistment service of the United States." Amendments were added in 1918 and referred to as the Sedition Act. These made "disloyal" or "abusive" criticism of the government illegal. In addition, the Postal Service attempted to suppress antiwar and antidraft propaganda by banning it from the mails. In some cases it confiscated the mail of organizations. Socialist party leaders Charles Schenck and Eugene Debs were convicted under the wartime acts for their opposition to conscription. An anarchist named Jacob Abrams was convicted for distributing phamplets opposing the United States military intervention in Russia after the Russian Revolution.

The American Union Against Militarism (AUAM) was one of the organizations that opposed United States involvement in the First World War. The AUAM was especially concerned with the military draft established during the war. It was also concerned with attempts by the Postal Service to suppress publications that opposed American involvement or war policy.

In 1917 the AUAM created the National Civil Liberties Bureau (NCLB). The NCLB focused on protecting free speech during the war. At one point, the federal government seized its mail and banned several of its pamphlets. In 1920 the NCLB became the American Civil Liberties Union. The ACLU has never argued that no speech whatever can be constitutionally prohibited, but it has defended a broad definition of free speech. In the 1920s, for example, the ACLU defended the anti-Semitic newspaper published by Henry Ford against local restrictions. It has been active at all judicial levels and has had considerable influence on both court decisions and the development of First Amendment legal doctrine. Samuel Walker has argued that the ACLU has been successful in part because there was never an equally well organized and persistently focused opposition.

At the time of the First World War, the Supreme Court was guided by a less liberal interpretation of the First Amendment than the one that was to develop later. In general, it took the view that legislatures were within their rights to restrict speech and propaganda that they believed to have dangerous consequences. In 1919 it upheld the convictions of Debs, Schenck, and Abrams. Justice Oliver Wendell Holmes put forward his "clear and present danger" test in the Schenck case, but he and the other justices upheld the conviction. In Abrams, however, he modified his view and filed a dissenting opinion that extended the scope of protected speech..

Changes in Interpretation

The dominant view of the courts changed in the mid-20th century. State and local restrictions were prohibited and the range of protected speech was expanded. In a series of Supreme Court cases, speakers who deeply offended others or threatened to upset the social patterns desired by others were protected by the courts. This has resulted in the United States having one of the most liberal policies in the world on free expression. On the other hand, the Court has never held that the Constitution establishes an "absolute" right to free speech. In other words, it has never held that Americans have a right to say anything at any time in any place. In general, it has protected some kinds of speech (especially political speech) more than others (such as obscene or commercial speech). It has also upheld reasonable restrictions on the time and place of speech (including political speech). The court has also relied heavily on a distinction between speech and conduct. Although this distinction is not hard and fast, there are clearly cases in which speech is a constituent part of an otherwise illegal act such as price fixing. In these cases, and others, the speech is not protected by the First Amendment.

Typically, the important free speech cases involved the rights of minority groups: extreme anti-Semites, American Nazis, the Jehovah's Witnesses, Communists, and members of both the Ku Klux Klan and the National Association for the Advancement of Colored People (NAACP). These cases often involved minority groups with unusual ideas; but they were not always cases in which a minority was in conflict with a majority. In some cases, the conflict is between two different minorities. In some cases, both minorities have been objects of discrimination in the past.

For example, the Jehovah's Witnesses often strongly criticized the Catholic church. Catholics themselves were another, larger, minority in the United States, and had experienced discrimination themselves. Some of the Witnesses' activities were offensive to Catholics, but were nevertheless protected by the courts.

Although American law moved toward a vastly more liberal idea of free speech during the 20th century, you should keep several things in mind when thinking about that trend.

First, the trend was not unbroken. Supreme Court cases generally enlarged the area of protected speech, but not always.

Second, there are principles and arguments in some Supreme Court cases that have acquired a somewhat doubtful status because of later cases.

Third, the Court has never said that all speech is protected. Political speech receives the highest level of pretection. Commercial speech and obscene speech have never been given the same degree of protection.

Fourth, there was nothing inevitable about the more liberal interpretation of the First Amendment. Most countries, including most wealthy democratic countries, have never developed as liberal a view as the United States. As Samuel Walker points out in his history of hate speech, our own results were influenced greatly by organized argument and pressure. Different pressures might have produced different results (and might do so in the future). The Supreme Court has not always sided with the advocates of greater freedom. In 1928, for example, the Court upheld a New York law that outlawed parading with masks. The law applied to some organizations and exempted others, depending on their purposes. It was clearly aimed at the Ku Klux Klan.

In a different political situation, this interpretation of the First Amendment might have prevailed.

Hate Speech

One of the most significant free speech/hate speech cases arose in 1977. The National Socialist Party of America (NSPA), led by a man named Frank Collin, announced plans to march in front of the Village Hall in Skokie, Illinois. Skokie had a large Jewish population, including several thousand survivors of the World War II holocaust in Europe. Village officials first obtained an injunction against the demonstration. After the injuction was reversed, the village enacted three ordinances to prohibit certain kinds of demonstrations, including that of the NSPA. Collin sued to prevent the ordinances from being enforced.

In Collin v. Smith (1978), the circuit court decided the case in favor of Collin. The court said, in part:

No doubt, the Nazi demonstration could be subjected to reasonable regulation of its time, place, and manner….Because the ordinances turn on the content of the demonstration, they are necessarily not time, place, or manner regulations….To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

The court also commented on the obvious pain that the Nazi demonstration would give to many of the residents of Skokie:

It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the Village's residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that "invite(s) dispute … induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."

The court added that:

There is room under the First Amendment for the government to protect targeted listeners from offensive speech, but only when the speaker intrudes on the privacy of the home, or a captive audience cannot practically avoid exposure….

Recent Criticism

The Skokie case reaffirmed the First Amendment doctrine that had developed over the preceding decades. One of the most important elements of that doctrine was the notion that restrictions on speech could not be content or viewpoint based. Since the Skokie decision, however, a number of powerful criticisms of standard First Amendment doctrine have emerged. In 1993 two books appeared that challenged the standard doctrine. These were Only Words by Catharine MacKinnon and Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, a collection of papers by Mari Matsuda, Charles Lawrence III, Richard Delgado, and Kimberle Crenshaw. These authors offered a mix of new and traditional arguments. One of the novel arguments maintained that in the case of hate speech the First Amendment conflicted with the Fourteenth Amendment's guarantees of equality. In such a conflict the First Amendment could not automatically be invoked as a trump card. It was not a situation in which a fundamental right conflicted with a desirable goal, but rather a conflict of two rights. Therefore some balancing between equally important values was required. In short, the First Amendment could be limited by the Fourteenth. These authors were also skeptical about other elements of the currently standard interpretation of the First Amendment, including the stress on content neutrality, the distinction between public and private action, and the distinction between speech and conduct.

Ongoing Debates

After many Supreme Court decisions, hate speech continues to be controversial. Americans continue to debate questions such as these:

These questions continue to be debated with no sign of agreement. Ariadne's Thread may help you to develop your own views.

Reference: For a legal history of hate speech written from an ACLU perspective, see Hate Speech: The History of an American Controversy by Samuel Walker.