Sunday, January 6, 2013

Hate Speech- Constitutional Right, or A License to Hurt Others?

Good afternoon. I hope all the readers of this blog have had a good weekend, and a wonderful start to the year 2013. As some of you might know, I recently wrote a guest post for a popular blog. You can read my post, along with the 70+ comments, here:

Anyway, today, I would like to talk about an issue which, similar to gun control, is underplayed in the media today, and not something that is ingrained in the public conscience of Americans. When compared to topics like taxes, creating jobs, health care, or foreign policy. the issue that I speak of is put on the back-burner, and the only coverage it gets is occasional legal battles. I am talking about hate speech.

Hate speech is a highly loaded term that really cannot be properly defined in all its contexts. However, I think a pretty fair definition of hate speech is "any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, gender identity, nationality, religion, race, sexual orientation, or any other characteristic. 

Most people would agree that hate speech is a negative phenomenon, because of its overall antagonistic and belligerent tone, and hyperbole. However, there are a number of others who claim that 'hate speech' is an intentionally vague term that is merely used to silence critics of any particular government, ethnicity, or policy that they disagree with, because these critics are being 'politically incorrect.' And herein lies the debate. 
The question is simple. In the United States, should hate speech be a form of expression that is completely tolerated legally, because it allows citizens to exercise their First Amendment rights? Or does permitting hate speech legitimize the opinions of those within our country who are racists, xenophobes, homophobes, sexists, or  simply narrow-minded? 

In the United States today, all forms of hate speech are fully legalized and protected under the First Amendment. Speech is a civil right in our country. This is often taken for granted, but because of the strength of our democracy, and the value we place on freedom of speech, change can be made in our government, and country. Dr. Martin Luther King gave his famous "I Have a Dream Speech" at a time where thousands of schools in the Deep South where still desegregated. Had Dr. King given this speech in parts of Alabama, Tennessee, Mississippi, or other southern states, he would have been heckled, and perhaps even lynched. Today, we realize that Dr. King was a brilliant visionary who simply wanted all Americans to join hands together as brothers and sisters in celebration of our democracy, and unite to solve our country's problems as equals. However, many Southerners at the time considered him to be a rabble-rouser who infringed state's rights by calling for school desegregation, and pressuring congress to sign into law the Civil Rights Act, which they did, in 1964. 
The only kinds of speech that are not protected under U.S. law are defamation, 'fighting words' and speech that can incite riot. Defamation is simply, the communication of a statement implied to be true that gives a race, ethnicity, country, religion, sexual orientation, or other group a negative or inferior image. Fighting words are written or spoken words said with the intent of inciting hatred or violence from their target. 

In 1942, the U.S. Supreme Court established a 'fighting words doctrine' in the court case Chaplinsky Vs. New Hampshire. This doctrine states that "insulting or 'fighting words,' those that by their very utterance inflict injury or tend to incite an immediate breach of peace" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] ... have never been thought to raise any constitutional problem." Since this case, the Supreme Court has continued to uphold and value this doctrine. However, it's scope and power has been increasingly limited. In Street vs. New York, a case heard by the court in 1969, a state law banning flag burning was overturned. "Mere offensiveness." in the language of the Court's ruling, does not designate fighting words. 

During the 1960s and 70s, when America was in a state of national turmoil and reinvention, the Supreme Court, led by liberal justices like Earl Warren, made some landmark decisions regarding the boiling controversy that occurred when deciding how to apply free speech. The Court ruled in one case affirming the right of a man to wear a jacket that said "F--k the Draft" (referring to Vietnam). However, in another case in 1969, the Court handed down a decision that reversed the conviction of a Ku Klux Klan group leader, who was accused of inciting violence against minorities! The Klu Klux Klan has a long and infamous history of racial agendas and propaganda that led to full-on violence. For many years, African Americans in the South lived in constant fear of the Klan, because of their violence and hate. Nevertheless, the Court ruled that this KKK member because the man was merely teaching others about the inferiority of other racial groups in an 'abstract manner,' rather than actively telling his followers to resort to violence. 

In 2011, the Supreme Court heard a case from Albert Snyder, the father of Lance Snyder, who was a corporal that got killed in Iraq in a non-combat vehicle accident in March of 2006. Like they have done at thousands of other military funerals, members of the Westboro Baptist Church decided to picket the funeral of Lance Snyder. Dozens of their members held up disgusting signs that said such things as "Thank God for 9/11," "God Hates Fags," "You're Going to Hell," and other hideous epithets. Albert Snyder promptly sued the Westboro Baptist Church for intentional infliction of emotional distress, and defamation. 

Before I continue briefly outlining brief aspects of this monumental (and highly controversial!!) legal case, I would like to first shortly describe what the Westboro Baptist Church is, and what it does. In brief, the Westboro Baptist Church is an independent Baptist church that was started by a man named Fred Phelps (yimach sh'mo), and members of his family in 1955. Even though the 'church' only has about 40 members, this organization makes headlines for its picketing of funerals, public press conferences and releases, and recent legal battles. Fred Phelps preaches his own brand of Baptist gospel. He and his followers believe that soldiers that die in Iraq and Afghanistan, and in any other conflict, are being punished for the United States' increasingly permissive and lenient attitude toward homosexuality and homosexuals. 

Phelp's also decries Catholics, Jews, Mormons, Atheists, Muslims, Australians, Swedes, Irish people, American soldiers in Iraq, Bill O'Reilly, Comedy Central, and even Jerry Falwell. While it is tempting to brush aside the Westboro Baptist Church as a group of raving lunatics (which they are), they end up causing quite a bit of legal trouble, as is evident from the Snyder v. Phelps case. In this case, the Supreme Court momentously upheld Westboro's right to picket a funeral, as a legitimate exercise of their First Amendment rights. It was a victory for First Amendment right fundamentalists. It was loss for  people sympathetic to the cause of Snyder, and who felt like the Court valued cold technicalities in law over basic human decency and morality. For the majority opinion, Chief Justice John Roberts wrote that "the fact that Westboro spoke in connection with a funeral ... cannot by itself trump the nature of Westboro's speech." "Westboro's signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society."

Because the church had applied for a permit, stayed at least 1,000 feet away from the funeral, and did not intrude, it was totally legal. But was it right? To the Supreme Court, which, after all, deals chiefly with legal issues, that does not matter. 

However, it does matter to others. An online petition sent to the white house seeking to legally recognize Westboro Baptist Church as a hate group has over 300,000 signatures in just 3 weeks. Just a few weeks ago, the church picketed the funerals of the children who were killed at Sandy Hook Elementary School. To combat the church, various groups have been formed to counter-protest the church when they picket funerals and other events. Last summer, when a student was killed at Texas A&M, hundreds of students from a human chain around the funeral, to prevent the church from gaining any access. So while the Court may rule one way, many people feel another way. This is the fascinating tension that occurs when one has to follow and uphold the law, even in situations where it seems unfair, or where others are even getting hurt. This leads to a tricky situation. In the Jewish community, a comparison might be drawn to the issue of Agunot, or women who are 'chained' to their husbands since they refuse to give them a get. Because of legal ingenuity, Rabbis created a prenuptial agreement that will from here and onwards will make sure that this terrible situation never occurs. In the case of the Supreme Court though, it's a little more tricky. 

To all the readers: What are your thoughts? Should legal action be taken against groups like the Westboro Baptist Church? What constitutes hate speech? Should all hate speech be illegal? If not, when, if ever, should it? Is holding up a sign that says "God Hates Fags" an incitement to riot, or defamation, or is merely stating a religious belief? Use these questions as a guide to discuss this interesting issue in the comments below. 


  1. I was waiting for the day you would bring up the above mentioned church. Here is my deal with it: As you already know, I am a HUGE believer in the Constitution and our rights. The First Amendment gives people the Freedom of Speech. I will fight to no end to make sure our rights are preserved. Does that mean I support the Church? Does that mean that protesting a funeral is a good thing. G-d Forbid. Would I love to see them shut down? Yes. But they can't go down by all the things they've said. Like I said before.....It's a shame being an idiot isn't illegal in this country.

    1. Phil-

      Thanks for the great comment. I think we can both agree that adherence to and respect of the constitution is incredibly important. However, in the case we are dealing with, there is a serious catch-22 dilemma. In this case, if we follow the constitution, moms and dads out there will have the funerals of their brave children picketed. Their kids died for their country, and yet a church is allowed to go and say God hates them, and they deserved to die because of gays! I don't understand it.

      So, in this case, if we claim that the Westboro Baptist Church does not engage in hate speech, or defamation, then what should we do to help the parents out there who are suffering? Can you imagine how angry and depressed parents must feel when their childrens' funerals are picketed, their childrens' memories are desecrated, and nothing can be done to stop the church?

      It's a tough one, no doubt.

    2. It is indeed a tough one with no solution keeping the Constitution intact.

  2. Phillip and Michael-

    Do you think the families have a right to privacy? Do you think this could be used to prevent the protesters from showing up at places that might be considered inappropriate?

    1. i think that maybe a compromise can be made, in which the church is allowed to protest whatever they want, but they have to have a little respect and maybe at least wait a few days, or at least dont pretest right outside the funeral, which is just outright stupid.

    2. Yehuda-

      You make a great point. How would you define "respect?" DO you think the court would have to define this term in order to stop the protesters?

    3. That's absurd. "Congress shall make no law abridging the right of the people peaceably to assemble" And considering that they are not going around killing anyone, that seems pretty peaceful to me.

    4. even if they traumatize and emotionally damage the parents of our military heroes? The right to assemble and protest is a really important value, but should it come at the expense of telling the parents of american war heroes that their sons and daughters died because of gay rights?

      As Yehuda said, there has to be some sort of compromise, some sort of line that the church cannot cross. I think that as he said, the churches's physical presence at a funeral is really insulting and traumatizing. If they protested a few days later in another location, ti would be fine.

    5. Phillip-

      There are laws that limit our free speech (e.g. yelling "fire" in a movie theater). Could you apply that logic here?

    6. "If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."

      George Washington (1732-1799) First President of the USA.

    7. Can you elaborate? Are you saying that speech should never be limited?

  3. Freedom of speech is our right. Hate speech is in that! If one right is taken away, then what will be next? America is land of the free, if rights are taken away, bad things could happen...