I once got in big trouble – with my wife – for supporting the 7th Circuit decision in Collin v. Smith, affirming a holding that ordinances designed to penalize/discourage the National Socialist Party of America (basically American Nazis) from parading through Skokie, Illinois--where about 5,000 survivors of Nazi concentration camps lived—violated the free speech clause of the First Amendment. As a student of the holocaust—with enormous sympathy for the suffering imposed there—my wife perceived the proposed Skokie demonstration as veritable assault on holocaust survivors and hardly an attempt to contribute to public policy debate. I shared her objections to the themes of Naziism, and even her view that such a parade was basically an ugly act; but I could not figure out how to distinguish plenty of pretty ugly free speech scenes that often involve people who are angry, hostile, and view those with competing views—whether political ideology or ostensibly religious ideas—as their enemy.
And there is little question that historically government has tended to act against speech of groups who were in the minority and unpopular. Deep suspicion of laws that attempt to prohibit minority or unpopular expression explains why courts have come to be reluctant to uphold any regulation or prohibition that is directed at the “content” of one party’s political expression. Many First Amendment scholars are quite convinced that government leaders are simply not competent to fairly determine that some forms of political expression are appropriately limited because they are too dangerous; too likely to lead to unrest or violence, or violation of the criminal law; or too likely to deeply offend moderate and reasonable people in our society. Hence American courts have limited speech regulation/prohibition to narrowly defined instances where the expression presents a “clear and present danger” of generating imminent violence or serious criminal acts.
Despite tremendous sympathy for these themes of First Amendment jurisprudence, I confess that over time I have become more favorably inclined than I once was to competing themes in American political and constitutional history. In perhaps the earliest case attempting to address the problem of so-called “Hate Speech,” Beuharnais v. Illinois, Justice Frankfurter upheld a “group libel” law that prohibited portrayals of citizens of any race, color, creed or religion to “contempt, derision, or obloquy.” Frankfurter emphasized that early state constitutions expressly limited freedom speech where the speech was used abusively.
One of the sharpest criticisms of Beuharnais was the one offered by Chicago First Amendment scholar Harry Kalven. Kalven suggested that the best analogy to “group libel” is the idea of “seditious libel”—the doctrine that partly gave rise to the First Amendment. Kalven was concerned that the Court seemed to miss the closeness of that analogy, and seemed to accept a legislative policy that, like seditious libel, was rooted in a lack of trust in the “sovereign people” to hear offensive, racist, prejudiced speech, and yet to make wise and prudent decisions about public policy and who ought to be elected to determine and implement it.
Though Kalven’s critique of Beuharnais is effective, and does help explain why courts became wary of laws against communist expression, anti civil rights movement expression, and even extremist expression like the expression protected in Brandenburg v. Ohio. But recent figures have contended that, for example, the desire to limit racist hate speech reflects not mistrust of the people and their capacity to make policy decisions so much as to prevent the harm inflicted quite directly on racial minorities when they are verbally assaulted. A number of critical race scholars, for example, have contended that, especially when speech is directed at individuals or small groups, and may not amount to what courts call “fighting words,” there is a need for some kind of remedy to the harms inflicted by some speech acts. In such cases, it is not so clear that the analogy to “seditious libel” is the most correct and accurate one. The interest of the nation in promoting and securing equal citizenship may be as important as protecting and securing the liberty interest in expressing anything ever said.
Perhaps the classic recent example where the dilemmas sometimes posed by First Amendment cases show up dramatically is in the case of Snyder v. Phelps. Eight members of the Court agreed that the free speech clause precluded the granting of a tort award for the intentional infliction of emotional distress, where a small, somewhat radical religious group, protested and demonstrated at the funeral of a slain member of the military. What is of greatest concern—though the attack on government for being too tolerant of homosexuality offended a great many people—was that the Baptist group that was demonstrating directed an important part of the expression on directly attacking the soldier’s parents for raising him a Catholic. The objection was that God condemned these parents for raising their son in a church dedicated to pedophilary. In dissent, Justice Alito contended that this sort of expression went well beyond a contribution to public policy debate and took on the quality of being a quite personal attack or assault on Snyder’s parents. This was conduct that met, he thought, all the ingredients of the intentional infliction of emotional distress tort. He believed that you could protect contributions to public policy debate even was sending the message that expression that greatly exceeds that purpose might still be subjected to appropriate legal limits. If you get a chance, you might want to read Justice Alito’s impressive dissent. The majority probably was true to established First Amendment law; but the dissent raises important questions about the limits of free expression.