EQUAL PROTECTION
FREEDOM OF EXPRESSION
Should Racist Hate Speech Be Limited? Hate Crime
and Free Speech. In 1990, a Minnesota teenager was convicted under a St.
Paul statute that prohibited bias motivated conduct. In june 1992, a divided
U.S. Supreme Court overturned the law, ruling that it unfairly targeted
particular biases and there fore violated First Amendment protection of
free speech (Kenneth Jost, Hate Crimes/ Library of Congress
1996).
FIRST AMENDMENT: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedoms of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
FOURTEENTH AMENDMENTS: No state shall make or enforce
any law which shall abridge the privileges or immunities or citizens of
the United States; nor shall any State deprive any person of life, liberty,
or property without due process of law; nor to deny any person within
its jurisdiction the equal
protection of the laws.
Equal Protection: hate crime laws violate the Equal Protection Clause in that "it gives greater protection to a victim who is assaulted because of his/her race, color, religion, or national origin than to another person who is assaulted for the same reason."
Freedom of Expression: creates conflict between civil liberties--the ability to enjoy personal freedoms and civil rights--protection from discrimination.
R.A.V. v. City of St. Paul 505 U.S. 377(1992) struck down a hate crime law that outlawed symbolic speech which included cross burning and swastikas which insult or provoke violence on the basis of race, color, creed, gender, or religion.
Wisconsin v. Mitchell 508 U.S. 476(1993) under Wisconsin's penalty enhancement statute, Todd Mitchell received an additional two years added to his sentence. Selecting a victim due to race, religion, color disability, sexual orientation, ancestry, or national origin; The Justice of the United States Court unanimously agreed that the penalty enhancement approach did not violate the First Amendment.
In June of 1993 the United States Supreme
court strongly endorsed the penalty enhancement approach and unanimously
upheld Wisconsin's Hate Crime statute. This Supreme Court ruling
was a milestone in the fight against hate crimes. It sends a clear
and effective message warning those who would engage in criminal conduct
motivated by bigotry (Hate Crimes, Paul A. Winters, 1996).
The Supreme Court has ruled that some
forms of expression do not constitute free speech. These include
"fighting words" obscenity, and liable. However, a majority
of the Court held that even expression that is so offensive as to amount
to "fighting words" cannot be prohibited if the prohibition is limited
to only "fighting words" concerning certain topics.
Fighting words--are not protected
under the First Amendment. Words which provoke a reasonable person
to violence and by their very utterance inflict injury and breach of peace
(Chaplinsky v. New Hampshire 315 U.S. 568,572(1942).
Should Racist Hate Speech Be Limited?
Yes: Hate speech should be limited, it ignores the constitutional rights of victims.
No: Hate speech should not be limited, racist speech should be protected by the constitution.
Should special "enhanced penalty" regulations for hate crimes be warranted when hate crime laws punish bigoted thoughts?
Yes: Hate crimes laws can discourage discriminatory acts without violating free speech rights.
No: Adding penalties to an act that is already criminal, punishes biased motive and creates a thought crime. It is inherently difficult to determine when a crime is motivated by bigotry (The Hate Debate and Policy Problems by Dr. Gerstenfeld).
1. United States Constitution
2. Hate Crimes, Paul A. Winters, 1996.
3. The Hate Debate and Policy Problems by Dr Gerstenfeld
4. R.A.V. v. City of St. Paul 505 U.S. 377(1992)
5. Wisconsin v. Mitchell 508 U.S. 476(1993)
CSUS
Criminal Justice Page
