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Please prepare a precis of the attached article, “When to Regulate Hate Speech”

WHEN TO REGULATE HATE SPEECH

Penn St. L. Rev.

Thomson Reuters. No claim to original U.S. Government Works.

0 Penn St. L. Rev. 5

Penn State Law Review

Winter

Article

John C. Knechtle

200

6 The Dickinson School of Law of The Pennsylvania State University; John C. Knechtle

WHEN TO REGULATE HATE SPEECH

I. Introduction

Laws that prohibit the expression of hate, commonly called hate speech, against individuals or groups based on national or ethnic origin, race, or religion are widely debated. Such laws proscribe a variety of types of speech including racial, ethnic and religious epithets,1 historical revisionism about racial or religious groups (i.e. denying the Holocaust),2 or incitement to ethnic, racial or religious hatred, discrimination or violence.3

Hate

speech also arises in the context of a harassing and hostile work or educational environment;

however, this article addresses the former three types of hate speech.

The extent of hate speech regulation in the world, including liberal democracies, sharply contrasts with that of the United States, where free speech interests prevail. Hate speech regulations impact much more than the podium speaker on the street; they impact many areas of everyday life, such as the Internet, freedom of the press, tort law, criminal law, and reading materials, inter alia. Not only are hate speech regulations affecting more areas of life, they are increasingly growing in favor *5

throughout the world. This contrast is especially clear in the area of

Internet

hate speech, state laws and international conventions.

While the United States is becoming a hub for Internet hate speech,5 other countries are prohibiting hateful content distributed on the Internet in their countries. Internet hate speech is of particular interest because the Internet is available in all countries and contains vast amounts of information that is easily accessible. The United States Supreme Court afforded the highest level of protection to Internet speech under the First Amendment.6 This is not the case in other countries.

In China, for example, the government controls access to all communications through the use of firewalls.

In a highly publicized French case, Yahoo, Inc. was found liable for allowing French citizens access to sites which sold Nazi memorabilia.9 Germany, which has some of the strongest prohibitions of Internet hate speech, will subject persons to criminal prosecution for providing a hate speech site accessible to Germans.10 Decisions by the German courts have prompted Internet service providers (ISPs) to block access to sites containing hate speech or symbols of hate speech.11 In Canada, ISPs are protected from criminal prosecution for allowing access to hate speech. However, under the Canadian Human Rights Act,

individual web sites that communicate discriminatory material pertaining to race, religion or national or ethnic origin are subject to injunctions against the use of their sites.

This Act was enforced in 19

when the *5

Canadian government successfully removed an anti-Semitic web site.

In addition to state sponsorship of Internet hate speech regulations, the Council of Europe and the European Union are actively advocating civil and penal liabilities for the distribution of hate speech via the Internet.

Foreign governments are increasingly adding laws that prohibit various forms of hate speech. Many hate speech regulations were in response to the human rights violations during World War II. The United Kingdom, for instance, enacted laws pursuant to its international obligations that made the publication or utterance of words “which are threatening, abusive or insulting” subject to criminal prosecution if that expression were intended to incite hatred on the basis of race, national origin or color.

The United Kingdom has added to this framework by passing Section 5 of the Public Order Act

and the Protection from Harassment Act

. Germany has been particularly vigilant in passing laws that prohibit hate speech. German law prohibits and criminalizes incitement of hatred, or attacks on human dignity on account of race, nationality, ethnic origin, or religion.19 In Australia, in New South Wales, the Anti-Discrimination Amendment Act No.

of 19

was the first law that criminalized the incitement of hatred, serious contempt, or severe ridicule of person(s) on the basis of race or membership in a group by threatening harm or inciting others to threaten harm.20 Canada has also passed legislation that provides for criminal sanctions for advocacy of genocide and “inciting hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”

These are only a few examples of the increasing number of countries enacting hate speech regulations.

Another example of international condemnation and prohibition of hate speech are international conventions prohibiting such speech. Among these conventions, the 19

International Convention on the Elimination of

All

Forms of Racial Discrimination (CERD) provides for the condemnation of all expression advocating the superiority of one race or group over another group based on race, color or ethnic origin or promoting racial hatred.

CERD also requires criminalization and injunction by states against persons who engage in those activities.

Even the United Nations Human Rights Committee (Committee) took a harsh stance against hate speech when it upheld a conviction of a French literature professor who denied, among other things, the existence and use of gas chambers against Jews during the Holocaust.

The Committee determined that under the United Nations Covenant on Civil and Political Rights the Professor’s statements would increase anti-Semitism and interfere with the rights of the Jews to live free from the fear of anti-Semitism.

Furthermore, the European Court of Human Rights has consistently decided that hate speech regulations do not violate freedom of expression.

In Jersild v. Denmark,

a racist youth group made degrading remarks against immigrants. The European Court agreed with the Danish court that the conviction of the youths was proper because there were limitations on free speech when hate speech does not provide for “the protection of the reputation or rights of others.”

Internationally, the world is placing less emphasis on the freedom of speech, and more emphasis on the dignity of persons.

The divide between the U.S. approach and the growing international *5

consensus on hate speech is substantial. Those involved in this public debate either support or oppose such laws despite the broad range of histories with genocide, violence and discriminatory practices, values, cultures, legal systems and jurisprudence, and despite the wide range of harms hate speech laws seek to address. This article seeks to discover the reasons for the differences, find common ground in the debate, and propose a way for hate speech regulation to develop in the U.S.

The first section of this article identifies two umbrella harms that regulations of hate speech seek to address: the harm of potential violence and the harm to human dignity. This section also discusses the rationale behind providing and prohibiting a legal remedy for such harms. The second section describes two critical factors for consideration in deciding when and how a country chooses to regulate hate speech: 1) a country’s history with ethnic, racial and religious violence, genocide, and discriminatory practices; and 2) its jurisprudential history, which reflects the hierarchy of its constitutional value choices. These factors are under-appreciated in the debate because to give them their proper place would require understanding of not only the legal arguments, but also a people’s history and hierarchy of constitutional values.

Finally this article posits that as each country decides how best to balance its constitutional values, at a minimum, hate speech that threatens unlawful harm or incites to violence may be proscribed. To accomplish this in the U.S., this article proposes that in addition to Brandenburg’s “incitement to imminent violence test,” the “true threats” test should apply to hate speech. The true threats doctrine was initially developed to protect the president, vice president and other high level government officials from threats of violence and has since been expanded to a broader application. It requires that the speaker intend his or her language to be a threat (whether or not he or she actually intends to carry out the threat), and that a reasonable listener, in context, would interpret the language as a threat of unlawful harm. Intimidation can constitute a true threat if it is to create a fear in its victims that they are a target of violence. Such an approach addresses the more virulent forms of hate speech, which, although not as extensive as hate speech regulations adopted elsewhere in the world, constitute a starting point for regulating hate speech.

II. Forming a Basis of Hate Speech Codes

Although there are many arguments for why hate speech should be regulated, many of these arguments fail because they do not take into consideration the peculiarities of people from different countries, and the ideas upon which their governments were founded. Many commentators *5

have addressed the adverse impact of hate speech and have attempted to invent mechanisms that they believe will adequately compensate for those harms. However, the more pressing issue that theorists should address is the practicability of the proposed theory and its potential acceptability with legislators, judges, and the voting public. Many commentators have suggested radical reforms, which are unlikely to gain in popularity, except, perhaps, in the labyrinths of academia. On the other hand, other commentators have so myopically focused on real-world utilitarian solutions for hate speech regulations that they propose that the current system is adequate.

While it is true that the current corpus juris works, the aspirational components of a better, more peaceful society should not be forgotten or overlooked. This article attempts to provide an alternative basis that will be closely tailored to the history of a people, and the ideas associated therewith.

A reality based approach must first determine what harms are created by hate speech. In practice, states have sought to protect their citizens from violence and/or attacks against dignity. These harms are recognized in state histories as harms that government has an interest in protecting against pursuant to its police powers. Many hate speech commentators have focused on why hate speech should or should not be regulated. In an attempt to prove why such speech should or should not be regulated, their postulates focus on the importance of the market place of ideas,

that feelings have a real emotive impact,

or that judges *5

should place more emphasis on the idea of equality.

These postulates are “how to” arguments; in other words, they focus on “how to” prove a libertarian or hate speech code advocate view. Although these postulates add to the volumes of academic literature and philosophical debate, this article emphasizes what harms states are willing and wanting to protect against. Instead of focusing on “how to” arguments, the following analysis will begin with what states, in practice, are protecting: harms involving violence and harms against human dignity.

A. Harm of Potential Violence

The harm of potential violence refers to the propensity of hate speech to incite and cause violence.

Society has a compelling interest in limiting and eliminating violence due to its axiomatic harm, and the more subtle harm created by engendering fear, suspicion, distrust, and alienation.

The government’s function is twofold: (1) protect individuals threatened with immediate violence, and (2) to “preserv[e] the social conditions . . . that foster individual autonomy.”

To maintain societal harmony at a minimum, the government must ensure safety from violence.

One commentator observes:

In order for autonomous individuals to flourish [in a society] there must exist certain social conditions conducive to autonomy. Freedom and individual dignity can only survive in a community that recognizes their value and is prepared to maintain them as principles of the social order. But there are moments when the autonomous individual takes actions that are inimical to the maintenance of the social fabric which supports individual autonomy. One such moment is when the individual incites violence.

To ignore or deny the relationship between hate speech and the threat or incitement to violence is to not know history, including recent history. One need not return to Nazi Germany in the 1

0s and ‘40s to understand the connection between hate speech and violence. Hate speech was an integral component of the “ethnic cleansing” in the war in Bosnia. In an effort to quell the fomenting violence, Bosnian police dispersed peaceful demonstrations because of their hate speech content. For example, at the urging of foreign democratic leaders, Bosnian Serb police used tear gas and water cannons to disperse “hundreds” of demonstrators chanting nationalist songs and anti-Muslim slogans in Banja Luka on June 18, 2001. The demonstrators were attempting to prevent the rebuilding of the 16th-century Ferhadija mosque, which Bosnian Serb irregulars destroyed during the 19

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war as part of a campaign to remove all physical aspects of Bosnia’s Muslim heritage.39 A U.S. State Department official asserted: “There are obvious free-speech concerns, but we need to put in place something to deal with the *5

abuses of the media– the hate, the racial epithets and ethnic slurs.”40 The media stoked the violence and even though proving a causal relationship between racial or religious epithets in a particular newspaper article or radio or television program and a specific act of violence may be impossible, when understood in the context of the overall violence engulfing the region, the state’s interest in procuring peace supersedes the right to express hate.

The 2004 movie Hotel Rwanda effectively portrayed the role that hate speech broadcast over the radio played in the Rwandan genocide. Between January and July of 19

, Radio-Television Libre des Mille Collines (RTLM) in Kigali, Rwanda broadcast hate speech towards the Tutsi minority encouraging the population on political grounds to commit acts of violence against the Tutsi population.41 Initially the French and U.S. governments opposed taking any action against RTLM, with the U.S. Ambassador claiming that its euphemisms were subject to many interpretations.42 The Canadian ambassador later said: “The question of Radio Mille Collines propaganda is a difficult one. There were so many genuinely silly things being said on the station, so many obvious lies, that it was hard to take it seriously. . . . Nevertheless, everyone listened to it–I was told [about it] by a Tutsis [sic]–in a spirit of morbid fascination and because it had the best music selection.”43

RTLM’s radio hate speech grew increasingly virulent with devastating impact. On June 4, 1

4 RTLM journalist Kantano Habimana told listeners that “[t]hey should all stand up so that we kill the Inkotanyi and exterminate them . . . the reason we will exterminate them is that they belong to one ethnic group. Look at the person’s height and his physical appearance. Just look at his small nose and then break it.”44 These more virulent expressions of hate occurred during the peak of the massacres.

Only after the Rwandan genocide had occurred did the international community take RTLM’s radio hate speech seriously. On December 3, 2003, after a three-year trial, the International Criminal Tribunal for *

8 Rwanda (ICTR) sentenced one of the founders and Steering Committee members of RTLM to thirty-five years in prison after it found him guilty of five of the seven charges, including direct and public incitement to commit genocide.45 In addition, the ICTR found a causal connection between RTLM’s broadcast of the names of Tutsi individuals and their families and their murders.46

Order inheres in a successful society. If a government is unable to protect its citizenry from violence, it will not be able to function. For this reason, governments around the world have enacted hate speech codes that address the harm of violence, or the potential for violence.47

In the United States, the Supreme Court has affirmed the power of the government to protect itself from change procured by “violence, revolution and terrorism.”48 In Brandenburg v. Ohio, the leader of a Ku Klux Klan group was convicted under Ohio’s Criminal Syndicalism statute for “advocat [ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The defendant organized a rally wherein twelve hooded Ku Klux Klan members privately united to burn a cross and make derogatory racial epithets.

Additionally, the defendant made threats against the government: “[I]f our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.”

The Court ruled that the government may only prohibit the advocation of unlawful conduct if “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Court found that Ohio’s statute was unconstitutional as a violation of the First and Fourteenth Amendments because it did not require imminent lawless action, nor did it distinguish between mere advocacy and incitement.

The Court found that certain forms of advocacy could be prohibited only if predicated upon imminent violence.54 Therefore, the United States has recognized that hate speech may be prohibited, but set a very high standard for its prohibition.

The Netherlands prohibits hate speech that advocates violence. Under section

137

of the Criminal Code, “Any person who, by means of *549 the spoken or written word or pictorially, deliberately and publicly incites . . . violence against persons or property of others on account of their race, religion or conviction or sexual preference, shall be liable. . . .”

Likewise, France, in 19

, made “incitement to discrimination, hatred or violence against a person or a group of persons on grounds of origin or because of their belonging or not belonging to a given ethnic group, nation, race or religion . . . an offence.”

Even where violence is not explicitly mentioned, many states prohibit insulting or racist speech. These states realize that there is a cumulative affect of racial incitement, which, over time, will lead to increased violence.

Israel has enacted laws to protect its citizens from violence. In Israel, which has been plagued with racial unrest, the penal law provides: “A person who publishes anything with the purpose of stirring up racism is liable to imprisonment for five years.”

This amendment to the penal law was in response, in large part, to Rabbi Meir Kahane’s election to the Knesset.

Kahane established a “political-racial movement,” which advocated the expulsion of Arabs from Israel and the reestablishment of a theocracy.

After his election, Kahane openly called for the persecution of Arabs in Israel to encourage their emigration.

He even started to visit Arab communities to persuade the residents to leave Israel and go to an Arab country.

Understandably, Kahane’s ideas were not warmly received by Arab citizens and the police were forced to “quell the resulting confrontations.”

Israel’s penal code seeks to prevent violence that results from racist expression.

The implementation of hate speech codes to curtail violence is necessary to facilitate an ordered, peaceful state. Few would argue that the state does not have an interest in prohibiting speech that will lead to violence. The real concern with the curtailment of violence as applied to hate speech is one of degree. In the United States, a very high degree of correlation between hate speech and violence is required before the government may prohibit the speech: incitement to imminent violence. Whereas, in other states, mere incitement is sufficient. However this *550 balance between civil liberties and government protection from violence fluctuates based in part on how fearful the population is of potential violence. Recent events in international terrorism appear to have swung the pendulum in the U.S. in the direction of greater government protection, even when it impinges on rights of free speech, freedom of association and the right to privacy. In the wake of September 11, 2001, supermajorities in both houses of Congress agreed to limit civil liberties to achieve greater security by adopting the Patriot Act which among other things, expanded the government’s surveillance powers.

In addition to the surveillance allowed under the Patriot Act, President Bush authorized the National Security Agency to eavesdrop within the U.S. without a warrant.

Although the legality of some of these approaches is debated, they show that when a majority of the population feels that its safety is seriously threatened, people in the United States are willing to make compromises between their rights and their safety. Time will show us whether this current shift is a momentary reaction to the terrorist attack of September 11th, or a more permanent re-balancing.

It is also critical to realize that minority groups may have more legitimate fears of violence being perpetrated upon them than the majority does, particularly if there is a history of injuries being inflicted by the dominant racial, religious or ethnic group. Minority groups may therefore possess a keen interest in curtailing hate speech which instigates this violence. However because of their minority status and relationship with the majority, it may be difficult or even impossible for them to persuade the majority of the importance of their concerns.

B. Harms Affecting Human Dignity

Human dignity has become a “fashionable concept” in modern constitutions and conventions. This concept is hard to define because its progeny was a dynamic process, and the concept is still in a state of flux. Different states define human dignity differently. One commentator has explained the basic nature of human dignity accordingly: “human dignity is not merely a general philosophical concept or even an individual *551 attribute, but rather an expression of a sense of being that is simultaneously personified and imbedded in the relationship between individuals and their community. . . .”65 Human dignity reflects a certain standard of respect by which all persons must be treated simply due to their intrinsic worth as human beings living in a community.

The right of human dignity may be exercised by the state or by persons. For example, in Germany, a female stripper is not allowed to voluntarily strip if she cannot engage her audience directly.

The court reasoned that regular strip shows engage the audience directly, thereby participating in a form of self-expression similar to theatre or dance.

Because the stripper was unable to engage the audience, her exposure was simply degrading, which violated her right to dignity.

The right to human dignity is so important that the German government has an independent duty to protect against abuse, even when the “abused” do not want the government’s protection.

In South Africa, the concept of human dignity was foundational in correcting the harms prevalent in the apartheid era. The Constitutional Court has marked the vitality of human dignity: “the importance of dignity as a founding value of the new Constitution cannot be overemphasized . . . [t]his right therefore is the foundation of many of the other rights. . . .”

The concept of human dignity was entrenched into the Constitution to combat the extreme abuses of human dignity in the apartheid era of South Africa.

South African courts have since used the Constitution to prevent many apartheid abuses, by, inter alia, invalidating apartheid laws that allowed the police to use lethal force in order to arrest someone.

Laws prohibiting sodomy were struck down due to concern that sodomy laws create disdain by punishing a form of sexual expression common to homosexuals, thereby degrading and devaluing the dignity of homosexuals.72

*552 The concept of human dignity has played an important role in Europe and South Africa in forming constitutional standards that the government must enforce to ensure the rights of its citizens.

III. A Factored Approach to Whether Hate Speech Codes Should Be Implemented

Many speech code advocates argue that the United States should borrow from hate speech laws in other countries; however, this approach is flawed because it does not account for the peculiarities of people in different countries. This “good for the goose, is good for the gander” approach ignores the history and associated attitudes and assumes that all peoples are homogeneous. Hate speech codes have typically focused on radical approaches to regulation based on academics’ views of what are appropriate regulations in an ideal society without accounting for the peculiarities of a people. This article proposes a positivist, factored approach to determining whether hate speech code regulations should be implemented and, if so, the degree of implementation on a state-by-state basis.

There are two predominant factors that should be considered: (1) historical accounts of ethnic, racial and religious violence, genocide, and discriminatory practices; and (2) jurisprudential history. Hate speech regulations are becoming increasingly prevalent in states that experience or have experienced severe racial tensions and atrocities. These states are implementing policies in order to facilitate a peaceful, harmonious state by recognizing that hate speech codes may prevent hateful conduct. Although the United States has been plagued with interracial tensions and violence, and has performed genocidal atrocities, when it comes to freedom of speech, it has placed a greater value on individual rights than community rights, and a greater value on liberty than equality. This libertarian bent almost always allows hate speech, unless there is an imminent risk of violence. This threshold should be lowered to reflect the reality of its pluralistic environment, coupled with its record on human rights. However, one must also balance the jurisprudential history of the United States in realizing workable solutions that have a basis in United States legal tradition. Within that tradition, as well as in other states, there is a strong interest in protecting citizens against violence.

However, the concept of human dignity has not had the same impact in the United States as it has in other countries. Because the concept’s development, as applied to political rights, was not incorporated into the federal Constitution, it has not significantly developed in the common law. In its place, the right of free expression has taken root.

*553 A. Historical Accounts of Ethnic, Racial and Religious Violence, Genocide, and Discriminatory Practices

The first factor focuses on racial violence, genocide, and discriminatory practices within the target state. Where these practices are more prevalent and egregious, there is greater need to implement hate speech code regulations. Like other governments, the United States has a history of violence that needs to be regulated and controlled.

Germany is a strong supporter of hate speech codes.

It has a peculiar history due to the atrocities the Nazis carried out against the Jews during World War II.

Germany has enacted very broad hate speech codes:

Whosoever, in a manner liable to disturb the public peace,

(a) incites hatred against parts of the population or invites violence or arbitrary acts against them, or

(b) attacks the human dignity of others by insulting, maliciously degrading or defaming parts of the population shall be punished by imprisonment of no less than three months and not exceeding five years.

“Human dignity” is also broadly defined as an attack “on the core area of [the victim’s] personality, a denial of the victim’s ‘right to life as an equal in the community,’ or treatment of a victim as ‘an inferior being excluded from the protection of the constitution.”’

The hate speech codes prescribe significant punishments, including up to five years’ imprisonment or a fine.

*554 There is a strong connection between Germany’s history and its hate speech codes. In a case against the leader of a right wing German political party, the defendant posted leaflets in a public forum that declared that the murder of millions of Jews amounted to “a Zionist swindle that could not be accepted.”

The Bundesgerichtshof, the German Federal Supreme Court, upheld the conviction by drawing a distinction between “mere falsification” and “injurious invective,” and found that the defendant was guilty of the latter.

The Court found that the he had denied the Jews their “inhuman” and “unique” fate.

The Court focused on the relationship between the past instances of Third Reich genocide committed against the Jews and the present views of the Jewish people, who identify themselves as “belonging to a fatefully selected group,” which is tantamount to their “self-worth.” Accordingly, denial of the Holocaust denies the Jewish people of their personal value due to the “continuation of discrimination against the group to which they belong.”

This case illustrates how Germany has disallowed hate speech because of the historical instances of discrimination, hate and genocide, and the effect thereof on the current Jewish citizens of Germany.

In Canada, which has a similar record of human rights abuses to the *555 United States, the government has enacted hate speech codes to counteract its past.

During the 1

0s, Canada experienced increased racial activities.

The Canadian government formed an investigative committee to make recommendations concerning the troubling amount of hate speech.

The committee recommended that new legislation be passed because the existing laws were inadequate.

Although its recommendations were criticized by hate speech advocates, a newly elected liberal government in

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0 passed new legislation that provides criminal penalties for advocacy of genocide or the incitement of hatred that is likely to lead to a breach of the peace.

The supreme court of Canada has upheld the law by reasoning that the suppression of hate propaganda is likely to reduce the harm to Canadian citizens.

The United States Supreme Court’s decision in Beauharnais v. Illinois89 is an illustrative example of hate speech codes that correlate to historical accounts of ethnic and racial discriminatory practices.

In Beauharnais,

the Supreme Court upheld the constitutionality of an Illinois statute that punished violators who engaged in hateful expression.92 The Illinois statute provided:

It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition *556 portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. . . .93 The defendant was prosecuted for violating the Illinois statute because he organized the distribution of leaflets on the streets of downtown Chicago. The leaflets included a petition entreating the mayor and City Council of Chicago “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro. . . .”94 The petitions called for “[o]ne million self respecting white people in Chicago to unite [against] becoming mongrelized by the negro [and against the] rapes, robberies, knives, guns, and marijuana of the negro.”95

In framing the context of the Illinois statute, the United States Supreme Court examined the history of racial prejudice in Illinois, and the effect of “willful purveyors of falsehood.”96 The Court found that Illinois was a polyglot community with “exacerbated tension between races.”97 These tensions were illustrated by numerous riots and bombings, desecration of personal property, and murder. The Illinois legislature enacted the statute to counteract the effects of the culmination of violence and ever-increasing diversity.

The Court granted the Illinois legislature deference due to the abstruseness of the science of government and its need to deal with “obstinate social issues” on a trial and error basis.99 The Court found that ruling against the Illinois legislature would be an act of “arrant dogmatism” outside the scope of the Court’s authority.

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The Illinois legislature was in a far better position to assess the gravity of Illinois’s history of racial hegemony in relation to the deleterious effects on the dignity and “the position and esteem in society [with which] the affiliated individual may be inextricably involved.”

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Although the Illinois statute was subject to discriminate enforcement, “the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels. . . .”

102

Accordingly, the Court found that libelous utterances are *557 not within the confines of constitutionally protected expression; ergo, a showing of “clear and present danger” was unnecessary.

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The Beauharnais Court properly considered Illinois’ history in determining whether the statute was constitutional, thereby giving great deference to the legislature in formulating policies that would further governmental interests in maintaining order. Although the Beauharnais court focused on the constitutionality of libel law, the court’s analytical and historical approach to hate speech is useful because it realizes the special needs of Illinois citizens, and grants deference to the legislature to accommodate those needs. Hate speech advocates should also implement the analytical approach applied in Beauharnais. The Court focused on the substantiality of racial tensions, and deferred to the judgment of the legislature in its intent to counteract those historical tensions. In all of the above cases, the courts were concerned with the peculiar history of the state in question. Those peculiar histories included genocide, discrimination, and interracial violence.

The United States has a long history of committing human rights atrocities, yet it has not embraced hate speech codes to the same extent as its Western counterparts. In fact, courts in the United States seem increasingly unwilling to impose restraints on the “freedom of speech,” even though it has a troubled, highly emotional history of interracial violence and suppression.

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These abuses include, inter alia, the genocide of Amerindians,

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African American enslavement,

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Jim Crow politics,

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the internment of Japanese-Americans,

108

human rights abuses of Iraqi prisoners,

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sterilization programs,

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government abuses against *558 minorities,

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and the disproportionate killings of poor blacks in the prison systems.

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Although these abuses may not be tantamount to the extermination of 6 million Jews, the United States has not implemented sufficient reforms to counteract the tensions brought about by its history of abuse. These tensions were manifested during the Los Angeles riots,

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are prevalent on campuses and in schools,

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and are felt on the street by ordinary victims of hate speech.

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Despite these stresses and the problems associated therewith, the United States has remained callous towards the victims, and ignorant of its history, by failing to lower the high threshold of imminent harm. The United States should lower the threshold requirement to adequately reflect the current social problems caused by its history of racial, ethnic, and religious abuses.

B. Jurisprudential History

The second factor that must be analyzed in order to assess the *559 viability of hate speech codes and the extent of the regulations pertaining thereto is the jurisprudential history of the state. This would include: case law, statutes, constitutions, legislative debate, and ideas and comments from the founders of the state. Jurisprudential history is a vital component because it solidifies the basis by which a state should be governed. Once these state laws and principles are declared and developed, people rely on them in the act of expression, and in response to a perceived violation of those rights. These ideas are also reinforced by the judiciary, which interprets legislative action in accordance with constitutional principles and jurisprudence.

Hate speech codes, although enacted, may fail to take effect if the people protest and demonstrate against perceived wrongs by the executive, judicial and legislative branches of government. Alternatively, a judicial officer may declare unconstitutional those hate speech codes, or limit their application so severely as to defeat their purpose.

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These examples, among others, illustrate that hate speech codes that are too broad or expansive will have no realistic chance of survival due to revolt or vote by the public at large or by limiting interpretations by the judiciary. Although over-expansive hate speech codes are interesting to talk about in the spirit of academic intercourse, hate speech codes should be drafted in such a way as to pass constitutional muster, and reflect constitutional principles with which the people can identify.

European conceptions of human dignity are incongruent with the United States Constitution because human dignity has not developed as a constitutional right, and there is a strong emphasis on the First Amendment–limited only by violent acts. Expansive hate speech codes in Europe have enjoyed more support because its jurisprudential history is radically different from that of the United States. In Europe, hate speech is liberally prohibited based on the concept of human dignity. Accordingly, freedom of expression does not have as many protections. However, the United States’ approach has centered on the harms of violence. The United States Constitution does not mention the concept of human dignity; instead, its history emphasizes free speech.

1. The Use of Human Dignity in Conventions and Constitutions in Europe

Although the concept of human dignity is not new in Western history, it is not an explicit concept in United States jurisprudence.

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*560 Additionally, although the theological underpinnings of human dignity have evolved over centuries and are now extensive,

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the humanistic progeny of dignity started in the Renaissance and is largely attributed to Francesco Petrarca.

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His writings inspired other Renaissance writers, including Bartolomeo Facio, Giannozzo Manetti, and Giovanni Pico della Mirandola.

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These Renaissance thinkers considered dignity a creation of God; however, their ideas reflected a personal autonomy.

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Over time, this concept deemphasized man as a creature subjected to God, and emphasized autonomy in an inter-personal society.

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John Locke posited that a person’s rational capacities are the foundations of his individuality.

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Samuel von Pufendorf further developed this idea by describing man’s dignity as embodying a privileged position in this world and humankind’s rational nature as engendering equality.

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Immanuel Kant added to this framework by defining dignity “as a quality of intrinsic, absolute value, above any price, and thus excluding any equivalence.”

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The concept of human dignity as it applied to political rights was embellished by Pierre-Joseph Proudhon, who theorized that justice can be accomplished through man’s ability to reason, and that justice is “the respect of human dignity in [a] person.”

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These political embellishments were embraced by Ferdinand Lasalle in his attempt to describe the conditions of the working class as a deprivation of dignity.

127

On that same theme, Peter Kropotkin considered human dignity the basis for morality and justice.

128

The concept of dignity, especially in recent years, has been the subject of much political debate and academic review in Europe and abroad.

129

*561 The ideal of human dignity was memorialized, and embellished, in conventions after World War II in Europe.

130

For example, Kant’s idea of dignity’s “absolute and intrinsic character” influenced the: Universal Declaration of Human Rights; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Council of Europe’s Convention on Human Rights and Biomedicine; and Universal Declaration on the Human Genome and Human Rights.

131

Increasingly, newly adopted constitutions relied heavily on the concepts of human dignity.

132

Human dignity, “stripped of both religious connotation and strict Kantian moral meaning,” is popularized in constitutions as being the “ultimate justification” for fundamental human rights.

133

This trend is illustrated in the German, Puerto Rican, and South African constitutions.

134

In Germany, the first article of the Basic Law boldly declares that “Human Dignity is inviolable. To respect and protect it is the duty of all state authority.

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The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”

136

In Germany, which hosts some of the most expansive hate speech codes, the jurisprudential history was largely predicated upon equal rights due to the treatment of the Jews during the Holocaust.137 Prior to

194

5, German courts refused to punish or bar anti-Semitic propaganda.

138

Once the Nazis were defeated by the Allies, those jurisprudential precedents were overturned.

139

A German post-World War II court explained that the Nazi persecution of Jews provided Jews with a new distinguishing identity that should be owed a certain *562 degree of respect and dignity.

140

The court reasoned that esteem and respect was an indispensable condition to continue living in Germany, and a guarantee that anti-Semitic genocide and discrimination would be protected against.

141

Thus, German courts increasingly became paternalistic in their endeavor to ensure adequate protection of those post-Holocaust values.

142

Under this framework of German jurisprudential history, hate speech codes have been effectively proposed and implemented into the German corpus juris. The German legislature has clearly defined its values and aspiration for the state vis-à-vis the constitution, which values have been perpetuated by the German judiciary. Under these auspices, it is little wonder that hate speech codes have enjoyed such acceptance in Germany.

The Puerto Rican Constitution uses human dignity as a fundamental source of rights, and as an interpretive tool. The Constitution of the Commonwealth of Puerto Rico declares:

[t]he dignity of the human being is inviolable. All men are equal before the law. No discrimination shall be made on account of race, color, sex, birth, social origin or condition, or political or religious ideas. Both the laws and the system of public education shall embody these principles of essential human equality.

143

The Puerto Rican courts have emphasized the fundamental importance of human dignity to the constitution, and the interpretation of rights.

144

It reflects a balance between the United States Constitution and an expansion of rights under emerging international human rights norms during the 1940s “to gather . . . [from] different cultures . . . new categories of rights.”

145

Likewise, in South Africa, in response to the de-humanization of apartheid, the concept of human dignity was memorialized in the Constitution and serves as an interpretative tool to other rights *563 guaranteed in the Constitution.

146

Even in some Western nations that do not have express constitutional provisions, human dignity is of constitutional importance. The Canadian Supreme Court has held that the rights and freedoms in the Canadian charter “are inextricably tied to the concept of human dignity.”

147

Likewise, Israel enacted the Basic Law of Human Dignity, which gives constitutional importance to dignity concerns.

148

2. Human Dignity in U.S. Jurisprudence

The United States Constitution does not mention human dignity. Although Kant lived during the genesis of the United States Constitution, his most influential writings on human dignity were not published until

178

5. Theological and natural law underpinnings of human dignity seeped into the Declaration of Independence and Gettysburg Address in the words, “all men are created equal,”

149

which implies that before the Creator and in the eyes of the country’s founders as least as understood by Abraham Lincoln, each person is intrinsically equal, apart from any ability or inability, appearance, or argument. If each individual and group of persons possess intrinsic equality and human dignity, then “no state interest can justify practices that both reflect and reinforce cultural assumptions about the intrinsic superiority of whites over blacks, men over women, “legitimate” over “illegitimate” children, or heterosexuals over homosexuals.”

150

Equality based on a common trait disappears when that trait is no longer shared. However, equality flowing from human dignity because we are all created equal is all-encompassing and never disappears. Because this language did not make it into the more secularized language of the Constitution, to develop this concept would require the Supreme Court to at least use it as an interpretative tool regarding the Equal Protection Clause.

In any case, recognizing that the idea of human dignity gives rise to rights under a constitution was a dynamic process, which was not popularized until after the World Wars.

151

In other words, the drafters of the United States Constitution were not concerned with the developed Kantian view of human dignity prevalent in many parts of the world and they did not include the natural law language of the Declaration of *564 Independence. Due to this absence in the federal Constitution, human dignity has been “relegated to [the] background of extra-constitutional principles.”

152

Although it has some proponents, such as Justice Brennan

153

and Justice Stevens,

154

it has not been used to interpret or guaranty rights as do, for example, the constitutions of Puerto Rico, Germany, and South Africa with dispositive affect.

155

3. Restrictions on

Free

Speech in the United States are Generally Based on Fear of Violence, or Endangerment of the Federal Government

The jurisprudential history of the United States has focused on a more libertarian approach to freedom of speech. The United States has been reluctant to interfere with free speech unless the speech will lead to violence, or directly endanger the foundations of government.

Despite the absolutist language of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press,”

156

the Supreme Court has never in its history advocated an absolutist theory of free speech.

157

Free speech, like all rights and freedoms, will at times conflict with other rights and freedoms. In balancing competing rights and freedoms the Supreme Court has held that free speech does not prevail when it comes to obscenity,

158

defamation,

159

national security,

160

fighting words,

161

incitement to *565 imminent violence,

162

the counseling of murder,

163

extortion,

164

blackmail,

165

perjury, and true threats.

166

In addition, the Court has found some speech more regulable than others, such as commercial speech and public employee speech,

167

and allowed government to place content neutral time, place and manner restrictions on speech.

In Whitney v. California, decided in

192

7, the Court placed limitations on the freedom of speech when the foundations of government were at risk.

168

Defendant Whitney was a member of the Communist Labor Party of California, which advocated the creation of a “unified revolutionary working class” to conquer and overthrow the capitalist United States.

169

Defendant was convicted under California’s Criminal Syndicalism Act.

170

The Court addressed whether defendant’s constitutional rights to the freedom of speech were violated, but found “[t]hat the freedom of speech which is secured by the Constitution does not confer . . . an unbridled license [to] those who abuse [the freedom of speech] by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means.”

171

Thus, the Court found that there were certain limitations to the freedom of speech.

In Dennis v. United States, the United States Supreme Court reaffirmed the principle that Congress may enact laws protecting the United States government.

172

The defendant conspired to organize the *566 Communist Party.

173

The Supreme Court reasoned that the government has a substantial interest in limiting speech where there is a “clear and present danger.”

174

The Court interpreted this phrase to mean that “[i]n each case involving the ‘clear and present danger’ test, courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

175

The Court concluded that defendant’s communist expression subjected him to criminal liability.

176

In Brandenburg v. Ohio, the Supreme Court determined that hate speech may only be prohibited when the content of the expression is likely to incite imminent harm.

177

The leader of a Ku Klux Klan group was convicted under Ohio’s Criminal Syndicalism statute178 for “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

179

Defendant Brandenburg organized a rally wherein twelve hooded Ku Klux Klan members privately united to burn a cross, and make derogatory racial epithets, including, inter alia: “bury the niggers,” “this is what we are going to do to the niggers.”

180

Additionally, Brandenburg made threats against the government: “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

181

The Court declined to follow Whitney, ruling that Whitney had been “thoroughly discredited” and that the State may only prohibit advocating of unlawful conduct if advocacy “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

182

183

In Beauharnais v. Illinois,

184

discussed above, the Supreme Court upheld the constitutionality of an Illinois statute that punished those who *567 engaged in hateful expression.

185

The Court examined the history of racial violence in Illinois and determined that the Illinois legislature was in the best position to assess the needs of the polyglot community.

186

In Chaplinski v. New Hampshire, the Court upheld a statute because it found that the statute was not a prohibition of the speaker’s words “except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.”

187

The Court upheld the conviction because certain classes of speech were unprotected by the Constitution, such as fighting words.

188

Fighting words are those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

189

The Court reasoned that the utterance must be “likely to cause a fight.”

190

Thus, the Court upheld the constitutionality of the statute based on the propensity of the speaker’s words to incite violence.

191

These cases are illustrative of the jurisprudential tendency to uphold convictions and statutes that are predicated upon the right of the state to protect its citizens from harm exclusively caused by violence, or violent revolution. Overall, courts have typically enforced limitations on the freedom of speech in the United States where the statutes are an exercise of state police power to protect the citizenry from physical harm.

In order for hate speech codes in the United States to pass constitutional muster, based upon the jurisprudential history outlined above, they must predicate themselves upon elimination or reduction of physical harm. The courts do not, however, appear to be concerned with the European concept of human dignity.

4. The Approach to

Freedom of

Expression in Countries that Emphasize Human Dignity in Their Constitutions

Freedom of expression as understood in the United States does not address the harms of speech to the same extent as in states whose constitutions embrace the concept of human dignity. Because the German legislature has imposed considerable restraints on the freedom of expression, hate speech codes that interfere with that right have received more support.192 Much like the guarantee of free speech in the United States Constitution, the German Basic Law also guaranties *568 freedom of expression. Freedom of speech is protected accordingly: “Everyone shall have the right freely to express and disseminate his opinion by speech, writing, and pictures and freely inform himself from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasting and films are guaranteed. There shall be no censorship.”

193

However, a delineation is affixed: “These rights are limited by the provision of the general laws, the provisions of law for the protection of youth, and right of inviolability of personal dignity.”194 The German Basic Law is premised on the inviolable “dignity of man” and “[t]o respect and protect it shall be the duty of all state authority.”

195

Article 1 of the German Constitution serves as an interpretative guide to the judiciary of the entire German legal experience.

196

In line with the German Basic Law, German courts have consistently denied freedom of expression where it might conflict with human dignity.197 In the Strauss Caricature Decision, a magazine published a set of harsh cartoons of a political figure dressed as a pig engaging in various forms of sexual activity.

198

The Constitutional Court reasoned that the cartoon deprived the political figure of human dignity.

199

Human dignity has even played a significant role in the development of defamation law in South Africa.200 In Khumalo v. Holomisa,

201

the plaintiff, a public official, brought a defamation suit against a publisher based on an alleged violation of his dignity. The publisher argued that the rule in New York Times v. Sullivan

202

should be adopted, which requires a showing of actual malice.

203

The court reasoned that free speech must be “construed in the context of other values enshrined . . . [in] the values of human dignity, freedom, and *569 equality.”

204

The court rejected the publisher’s arguments because the “value of human dignity . . . values both the personal sense of self worth as well as the public’s estimation of the worth or value of an individual.”

205

Justice O’Regan, writing for the court, stated,

The value of dignity in our Constitutional framework cannot . . . be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels.

206

The court balanced both freedom of expression and human dignity in fashioning a rule which allowed a suit by an allegedly defamed plaintiff, but a defense of reasonable publication by the publisher.

207

IV. Hate Speech Regulation: Building on Common Ground

Hate speech that threatens unlawful harm or incites violence should be proscribed in all countries. This is merely the baseline because of the fundamental obligation of government to protect its citizens. Based on the two factors discussed above, a country’s history of ethnic, racial, and religious violence, genocide and discriminatory practices and a country’s jurisprudential history, a country may restrict additional forms of hate speech consistent with the principle of freedom of expression. At a minimum, however, it has the constitutional authority to restrict speech that leads to violence or the threat of violence.

This common ground for hate speech regulation to prevent violence and fear of violence is rooted in both historical experience and common constitutional values. Because all genocides have been motivated by hatred rooted in racial, religious, ethnic, or national origin differences, laws regulating hate speech naturally focus on those areas. In some instances they include gender and sexual orientation. Of course, most violence is inflicted apart from genocide, but often the motivating factors are the same and these factors are what often conflagrate the violence. This approach is, for the most part, already embraced outside the U.S., so we now look at how the U.S. can implement this approach.

*570 To implement this article’s proposal, hate speech laws in the U.S. should be written to cover hate speech that incites to imminent violence or contains a true threat. Hate speech may currently be regulated in the U.S. if it fits under the Brandenburg v. Ohio

208

test: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

209

Thus, hate speech purveyors must advocate imminent illegal conduct, intend to incite such conduct, and be likely to produce such action.

The imminence requirement of this test makes it difficult to meet in most cases, and if law enforcement waits until the violence begins, of what use is this standard in preventing violence? In recent years Congress and the U.S. Department of Justice (Department) have become concerned about the increased availability of bomb-making instructions on the Internet, probably a legitimate concern in our world of increased terrorist activity. In a 1997 report to Congress the Department argued that Brandenburg should not apply to the publication of such information, stating that when it is foreseeable that such speech will be used for criminal purposes, “imminent should be of little, if any, relevance.”

210

In Rice v. Paladin,

211

which involved civil liability of publishers of murder manuals, the Fourth Circuit, recognizing the danger of such speech, held that Brandenburg only applied to “the mere abstract teaching . . . of the moral propriety or even moral necessity for resort to lawlessness” and not to technical teachings on the fundamentals of murder.

212

In NAACP v. Claiborne Hardware Co., seventeen white merchants sued the NAACP and Mississippi Action for Progress and 146 individuals over a boycott of their stores.

213

At issue was Charles Evers,’ the Field Secretary of the NAACP in Mississippi, words to a crowd of African-Americans: “If we catch any of you going in any of them racist *571 stores, we’re gonna break your damn neck.”

214

The Court found that because the violence that took place occurred weeks or months after the speech, defendants could not be held liable.

215

The rationale for the requirement that the violence occur almost immediately after the words in question are delivered is that it makes it difficult for the government to suppress political speech and ensures that the danger is real, not speculative. In addition, arguably Evers’ statement was a rhetorical statement, not a specific threat.

However, the imminence requirement also raises a question: why should the government be unable to regulate hate speech that foments violence just because the violence does not happen immediately after the speech is delivered? In Paladin 13,000 copies of the murder manuals had been published over a period of ten years before John Perry decided to use them to commit murder, an absence of immediacy which the court did not find compelling.

216

Criminal prosecutions since September 11, 2001 also show a change in the government’s answer to this question. The conviction and sentence to life in prison of Muslim scholar Ali al-Tamimi in July 2005 for encouraging his followers in Virginia to join the Taliban in Afghanistan in anticipation of the U.S. invasion shows a weakening of the immediacy prong of the imminence requirement, at least by one federal district court judge.

217

To follow through on al-Tamini’s exhortation would require traveling to Afghanistan and training to fight for the Taliban, which would take months if not years, which is certainly not imminent violence under traditional Brandenburg analysis. Although two of his followers admitted that he inspired them to join the Taliban, they went to Pakistan and joined a separatist group in Kashmir, never making it to Afghanistan and never joining the Taliban.

218

Perhaps the most direct way to transcend the imminence requirement is to prohibit threats of unlawful acts.

219

In the U.S., this *572 involves applying the “true threats” doctrine to hate speech.

There are a number of federal statutes that make threatening statements grounds for criminal prosecution or civil liability.

220

Some are specific regarding to whom the threat must be made, such as the President or Vice-President,

221

federal judges and other federal officials,

222

IRS employees,

223

jurors,

224

and providers of abortion services.

225

Others are more general regarding to whom the threat must be made. Perhaps the most general federal statute to criminalize threats makes it a crime to transmit in commerce “any communication containing. . . any threat to injure the person of another.”

226

The Supreme Court’s only interpretation of a “threat” statute came in the 1969 case Watts v. United States.

227

In this case, Watts was convicted under the aforementioned statute, which prohibited threats made to the President.

228

At a public rally at the Washington Monument in Washington, D.C., Watts made the following statement to a small group of people: “I have received my draft classification as 1-A and I have got to go for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”

229

The Supreme Court reversed his conviction, distinguishing threats from political hyperbole and saying this case involved the latter.

230

The Court concluded that Watts’ “only offense was a kind of very crude offensive method of stating a political opposition to the President.”

231

However, the Court held the statute constitutional “on its face” and stated that free speech requires “threats” to be limited to threats that are “true.”

232

Not until 2003 did the Supreme Court provide further guidance on what constitutes a “true threat.”

233

In the meantime, the circuits adopted various approaches to true *573 threats, mostly focusing on a subjective or objective analysis of the speaker’s intention and the listener’s perception of the threat.

234

The speaker must intend to make the threatening statement.

235

The speaker need not, however, intend to carry the threat out or even have the ability to carry it out.

236

The objective part of the test concerns whether the speaker should “have reasonably foreseen that the statement he uttered would be taken as a threat by those to whom it is made.”

237

Some circuits consider the reasonable person the listener, as opposed to the speaker, asking whether a reasonable listener would interpret the speech as a threat.

238

Finally, in keeping with the finding of political hyperbole in Watts, the court must consider the context of the speech.

239

Commentators have wisely proposed that the true threats test consist of the following two prongs:

1. [A] person speaks or engages in expressive conduct, intending it to be taken as a threat of unlawful result that would place the listener in fear of his or her injury . . . regardless of whether the speaker intends to carry out the threat; and

2. [A] reasonable listener, in context, would interpret the speech or expressive conduct as communicating a serious expression of intent to unlawfully harm the listener.

240

I would modify the first prong slightly by defining intent as “knowing or reckless” so that intent could be inferred from reckless threats.

241

Professor Gey argues that the Supreme Court’s “incitement to *574 violence” theory and jurisprudence should govern the “true threats” theory and jurisprudence.

242

Although both are categorical exceptions to the First Amendment, they are different, and one should not govern the other. As the Eighth Circuit wrote, “the Brandenburg test applies to laws that forbid inciting someone to use violence against a third party. It does not apply to statutes. . . that prohibit someone from directly threatening another person.”

243

Because states handle most criminal matters, it comes as no surprise that state courts are also addressing the true threats test. In 2003, the Supreme Court of Connecticut upheld a conviction under a statute that provides in relevant part that a person is guilty of a breach of the peace when that person, “with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . threatens to commit any crime against another person or such other person’s property.”

244

The court applied an objective test, whether “a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person,” along with a contextual analysis of examining “the surrounding events and reaction of the listeners.”

245

R.A.V. v. City of St. Paul, Minnesota

246

and Virginia v. Black

247

show how the U.S. Supreme Court struggles with government attempts to protect its citizens from hate speech threats. The factual scenario of the case that gave rise to R.A.V. is the following. Russ and Laura Jones, who are African-Americans, moved into a working-class white neighborhood in St. Paul, Minnesota that was well known among local African-Americans for its racism. Within a few months of moving there, the tires on their new station wagon were slashed, the tailgate of their car was broken, and their son was called a “nigger” on their front sidewalk. Then one night a group of skinheads burned three crosses in or near the Joneses’ yard.

248

Russ Jones recounted his reaction: “When I saw that cross burning on our lawn, I thought of the stories my grandparents told about living in the South and being intimidated by white people. When a cross was burned down there they either meant to harm you or put you in *575 your place.”

249

The skinheads later admitted they were “really disgusted” by the presence of an African-American family in their neighborhood and were trying to drive the Joneses out.

250

The City of St. Paul charged one of the skinheads who had burned the cross on the Joneses’ yard with violating 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.

251

The U.S. Supreme Court accepted the Minnesota Supreme Court’s “authoritative statement that the ordinance reaches only those expressions that constitute ‘fighting words’ within the meaning of Chaplinksy,”

252

yet all nine justices held the ordinance unconstitutional. Justice Scalia, writing the majority opinion joined by Rehnquist, Kennedy, Souter, and Thomas, stated that even though fighting words are excluded from First Amendment protection, the government can still regulate how they are prohibited and what they prohibit, concluding that this statute impermissibly discriminates based on content. The statute was unconstitutional because “[t]he First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”

253

Justice White, writing a concurrence joined by Blackmun, O’Connor and Stevens, stated the ordinance was unconstitutionally overbroad.

Regardless of the Joneses’ disagreement with the skinheads’ views, what concerned them most was the threat of more violence. If St. Paul’s statute criminalized true threats, it could have constitutionally punished the type of symbolic conduct involved in R.A.V. The petitioner, R.A.V., intended to make the threatening statements, and a reasonable listener knowing both the context of the events surrounding this incident and the history of the use of burning crosses, would interpret this expressive conduct as communicating a serious expression of intent to unlawfully *576 harm the listener. Justice Scalia hinted at this possibility in the first footnote of his opinion when he indicated that the conduct in R.A.V. might violate the Minnesota statute criminalizing terrorist threats.

254

In addition, if St. Paul or Minnesota adopted a hate crime penalty enhancement statute, sentencing of R.A.V. could be increased because he selected the Joneses for this criminal act because of their race. In Wisconsin v. Mitchell, another unanimous U.S. Supreme Court upheld Wisconsin’s hate crime penalty enhancement statute over a First Amendment challenge.

255

Although the statute punished criminal conduct, it increased the maximum penalty for conduct motivated by race, religion, color, disability, sexual orientation, national origin or ancestry such that it was more severe than the same conduct engaged in for some other reason or for no reason at all.

256

Chief Justice Rehnquist wrote that “motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination [laws],”

257

which the Court has upheld in the face of First Amendment challenges.

258

Rehnquist went on to explain the rationale for such statutes: “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”

259

Eleven years after R.A.V., the Supreme Court heard Virginia v. Black,

260

another cross-burning case that provided the Court with the opportunity to further define the lines between symbolic speech, intimidation and free speech under the First Amendment. In Virginia, the following two cases were consolidated on the constitutional challenge to the state statute:

On August 22, 1998, Barry Black led 25-30 people in a Ku Klux Klan rally on private property with the owner’s permission and participation in Cana, Virginia.

261

The rally was in an open field visible from the state highway where the County Sheriff and others observed the event. During the rally, participants gave speeches about white supremacy and how bad blacks and Mexicans are; one speaker stated that “he would love to take a .30/.30 and just random[ly] shoot the blacks.”

262

At the end of the rally, the group circled around a large cross, which they *577 burned while “Amazing Grace” blared over the loudspeakers.

263

At that moment, the Sheriff entered the property and arrested Barry Black for violating Virginia’s cross-burning statute, which states:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

264

On May 2, 1998, Richard Elliott and Jonathon O’Mara attempted to burn a cross on the yard of James Jubilee, an African American and Elliott’s next-door neighbor in Virginia Beach, Virginia.

265

Jubiliee had moved his family from California into his house in Virginia Beach four months before this incident, and sometime prior to the incident had heard gunshots coming from Elliott’s property.

266

When he inquired at Elliott’s home about the shots, Elliott’s mother explained to Jubilee that her son shot firearms as a hobby and used the backyard as a firing range.

267

On the night of May 2, in order to “get back” at Jubilee for complaining about the shooting in his backyard, Elliott and O’Mara drove a truck onto Jubilee’s property, planted a cross and set it on fire.

268

The next morning, while Jubilee was pulling his car out of his driveway, he noticed the partially burned cross.

269

He became “very nervous” because he “didn’t know what would be the next phase,” and because “a cross burned in your yard . . . tells you that it’s just the first round.”

270

Elliott and O’Mara were charged with attempted cross burning and conspiracy to commit cross burning and O’Mara plead guilty to both counts while Elliott went to trial and was convicted of attempted cross burning and acquitted of conspiracy to commit cross burning.

271

In 2001, the Virginia Supreme Court consolidated these cases and declared the statute unconstitutional on its face for two reasons. First, because of all prohibitive possibilities, the statute “selectively cho[se] only cross burning because of its distinctive [racist] message,” the court found the statute “analytically indistinguishable from the ordinance *578 found unconstitutional in R.A.V.”

272

The second reason was that to allow juries to infer intent from the burned cross posed too high a risk that those who had no such intent would be convicted.

273

In 2003, the U.S. Supreme Court affirmed in part and reversed in part. Justice O’Connor, with whom the Chief Justice, Stevens, and Breyer joined, held that: 1) cross burning with no intent to intimidate was protected by the First Amendment; 2) the state may prohibit cross burning when such intent is present; and 3) cross burning cannot be prima facie evidence of such intent.

274

Justice Souter, joined by Kennedy and Ginsburg, argued that any cross burning law constitutes impermissible content discrimination.

275

Justice Thomas argued that the entire statute was constitutional because it regulated conduct, not speech.

276

Finally Justice Scalia, the author of the majority opinion in R.A.V., agreed with the plurality that Virginia’s cross burning prohibition is constitutional if the intent is to intimidate, but not if it is to express a viewpoint.

277

He disagreed with the plurality, however, in his conclusion that Virginia could make cross burning prima facie evidence of intent to intimidate.

278

A majority of the Court supported the proposition that the government can proscribe the burning of crosses with intent to intimidate or threaten. Thus, a true threats statute can list cross burning as a prohibited form of hate speech as long as it is accompanied with the intent to threaten or intimidate.

The true threats test could also be applied to other forms of hate speech that threaten unlawful acts that place a reasonable listener in fear of physical injury. This lowers the high Brandenburg threshold of imminent violence to a level where people threatened or intimidated by hate speech have a legal remedy. This new standard addresses such hate speech as racial, ethnic and religious epithets, under certain circumstances, and incitement to ethnic, racial or religious discrimination or violence, but does not address historical revisionism about racial or religious groups (i.e. denying the Holocaust).

Prohibiting hate speech that not only incites to imminent violence, but also threatens unlawful harm, addresses the most pressing concern about hate speech: government protection of its citizens. The government’s interest in protecting its citizens from violence, the fear of *579 violence, the disruption that fear engenders, and the possibility that the threatened violence will occur, outweigh free speech concerns. Constitutional values and a nation’s history may dictate additional regulation of hate speech, but this is a constitutional minimum.

V. Conclusion

The divide between the U.S. and the international community on hate speech regulation can be understood in terms of historical development and hierarchy of constitutional values. In Europe, events like the Holocaust and the ethnic cleansing in former Yugoslavia have caused people to elevate human dignity and equality above individual freedom of expression. In places like South Africa and Rwanda, the close relationship between hate speech and ethnic and religious strife leaves people puzzled by the American approach. Perhaps the U.S. focus on individual liberty rights to free speech reflects not just a deep-seated distrust of government, but an undervaluing of the effects of slavery and discrimination against African Americans and the mistreatment of other minority populations such as the Native Americans. It may also reflect a belief that the best way to combat such hatred is to allow it to be expressed and then confront the speaker with other speech.

The common ground in this divide is the interest of government to protect its citizens from violence, the fear of violence, the disruption that fear engenders. Because of the close relationship between hate speech and violence, the governmental interest is paramount when it seeks to protect its citizens from these harms.

For the U.S. to achieve this governmental interest requires expanding hate speech regulation beyond the “incitement to imminent violence” standard to include hate speech that intimidates or threatens unlawful acts. Applying the “true threats” doctrine to hate speech accomplishes this task and creates a common ground for dialogue with the international community.

Footnotes

Professor of Law, Director, International Programs, Florida Coastal School of Law. I would like to thank David Douglas and Chris Roederer for their insightful comments on an earlier draft of this article, and John Thomas, my research assistant.

See Michel Rosenfeld, Hate Speech in Comparative Perspective: A Comparative Analysis, 24 Cardozo L. Rev. 1523, 1523 (2003); Richard Delgado,

Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 133-34 (1982)

See generally Kent Greenwawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (1995).

See Eric Barendt, Freedom of Speech (1985); Mari Matsuda,

Public Response to Racist

Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2341 (1989); Frederick Schauer, Free Speech: A Philosophical Inquiry (1982).

See The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography (Laura Lederer & Richard Delgado eds., 1995); Abigail C. Saguy,

Employment Discrimination or Sexual Violence? Defining Sexual Harassment in American and French Law, 34 Law & Soc’y Rev. 1091 (2000)

; see also infra note 219 and accompanying text.

See Christopher D. Van Blarcum, Note, Internet Hate Speech: The European Framework and the Emerging American Haven, 62 Wash. & Lee L. Rev. 781, 822 (2005); Peter J. Breckheimer II, Note,

A Haven for

Hate: The Foreign and Domestic Implications for Protecting Internet Hate Speech Under the First Amendment, 75 S. Cal. L. Rev. 1493, 1518 (2002).

See

Reno v. ACLU, 521 U.S. 844, 849 (1997)

;

Planned Parenthood of the Columbia/Willamette Inc. v. Am. Coalition of Life Activists, 244 F.3d 1007, 1012 (9th Cir. 2001)

Internet hate speech is the subject of considerable discussion. See, e.g., Van Blarcum, supra note 5, at 781; Breckheimer, supra note 5, at 1518; Amy Oberdorfer Nyberg, Note, Is All Speech Local? Balancing Conflicting Free Speech Principles on the Internet, 92 Geo. L.J. 663, 663-64 (2004); Alexander Tsesis,

Prohibiting Incitement on the Internet 2002, 7 Va. J.L. & Tech. 5 (2002)

; Laura Leets,

Responses to Internet

Hate Sites: Is Speech Too Free in Cyberspace? 6 Comm. L. & Pol’y 287, 295 (2001).

Breckheimer, supra note 5, at 1509.

Joshua Spector, Hate Speech on the Internet,

Spreading Angst or Promoting Free Expression? Regulating

Hate Speech on the Internet, 10 U. Miami Int’l & Comp. L. Rev. 155, 173-76 (2002).

Van Blarcum, supra note 5, at 803.

Yulia A. Timofeeva, Hate Speech Online: Restricted or Protected? Comparison of Regulations in the United States and Germany, 12 J. Transnat’l L. & Pol’y 253, 264 (2003); Breckheimer, supra note 5, at 1513.

Canadian Human Rights Act, R.S.C., Ch. H-6 (1985) (Can.).

Breckheimer, supra note 5, at 1516.

Citron v. Zündel (Canadian Human Rights Tribunal Jan. 14, 2002), available at http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=252&lg=_ e&isruling=0.

Van Blarcum, supra note 5, at 789-802.

Rosenfeld, supra note 1, at 1546 (quoting Section Six of the Race Relations Act).

Public Order Act, 1986, c. 64, 5-6 (Eng.).

Protection from Harassment Act, 1997, c. 40, 7 (Eng.).

Friedrich Kübler,

How Much Freedom for Racist

Speech? Transactional Aspects of a Conflict of Human Rights, 27 Hofstra L. Rev. 335, 344-45 (1998).

Sharyn Ch’ang, Legislating Against Racism: Racial Vilification Laws in New South Wales, in Striking a Balance: Hate Speech, freedom of Expression and Non-discrimination 90 (Sandra Coliver ed., 1992) [hereinafter Striking a Balance] (quoting Section 20D).

John Manwaring, Legal Regulation of Hate Propaganda in Canada, in Striking a Balance, supra note 19, at 107-08 (quoting Section 319).

See, e.g., Gilbert J. Marcus, Racial Hostility: The South African Experience, in Striking a Balance, supra note 20, at 208; Stephen J. Roth, Laws Against Racial and Religious Hatred in Latin America: Focus on Argentina and Uruguay, in Striking a Balance, supra note 20, at 197; Eliezer Lederman and Mala Tabory, Criminalization of Racial Incitement in Israel, in Striking a Balance, supra note 20, at 182; Venkat Eswaran, Advocacy of National, Racial and Religious Hatred: The Indian Experience, in Striking a Balance, supra note 20, at 171; Sionaidh Douglas-Scott, The

Hatefulness of Protected

Speech: A Comparison of the American and European Approaches, 1999, 7 Wm. & Mary Bill Rts. J. 305, 309 (1999).

State Parties [must] condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one color or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form…. [State Parties] shall declare an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination… and also the provision of any assistance to racist activities, including the financing thereof…. Shall declare illegal and prohibit organizations… and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as punishable by law….

Rosenfeld, supra note 1, at 1555 (quoting Art. 4).

Id.

at 1555.

Report of the Human Rights Committee, Volume II, U.N. GAOR, 52nd Sess., Supp. No. 40, at 84, U.N. Doc. A/52/40 (1999).

Id. at 96.

Rosenfeld, supra note 1, at 1555-56.

Jersild v. Denmark, 298 Eur. Ct. H.R. (ser. A) (1994).

Id. at 28.

See Donald E. Lively,

Reformist Myopia and the Imperative of Progress: Lessons for Post-Brown Era, 46 Vand. L. Rev. 865 (1993)

One commentator explains:

But it is not just the prevalence and strength of the idea of racism that makes the unregulated marketplace of ideas an untenable paradigm for those individuals who seek full and equal personhood for all. The real problem is that the idea of the racial inferiority of non-whites infects, skews, and disables the operation of the market (like a computer virus, sick cattle, or diseased wheat). Racism is irrational and often unconscious. Our belief in the inferiority of non-whites trumps good ideas that contend with it in the market, often without our even knowing it. In addition, racism makes the words and ideas of blacks and other despised minorities less saleable, regardless of their intrinsic value, in the marketplace of ideas. It also decreases the total amount of speech that enters the market by coercively silencing members of those groups who are its targets.

Charles R. Lawrence III, Frontiers of Legal Thought II The New First Amendment: If He Hollers Let Him Go: Regulating Racist Speech On Campus, 1990 Duke L.J. 432, 470 (1990) (citing John Stuart Mill, On Liberty ch. 2 (1859)). See also Breckheimer, supra note 5, at 1500; Dana Moon Dorsett, Note, Hate Speech Debate and Free Expression, 5 S. Cal. Interdisc. L.J. 259, 269-70 (1997); Calvin R. Massey, Hate Speech, Cultural Diversity, and the Foundational Paradignms of Free Expression, 40 UCLA L. Rev. 103, 167 (1992); Nicholas Wolfson, Free Speech Theory and Hateful Words, 60 U. Cin. L. Rev. 1, 16 (1991); Robert C. Post, Free Speech and Religious, Racial, and Sexual Harassment: Racist Speech, Democracy and the First Amendment, 32 Wm. and Mary L. Rev. 267, 274 (1991);

Abrams v. United States, 250 U.S. 616, 624-31 (1919)

(Holmes, J., dissenting).

One of the most prominent harms discussed by commentators is that racial speech is inherently injurious to the individual to whom the racial speech is addressed. Post, supra note 31, at 272; N. Douglas Wells,

Whose Community? Whose Rights–Response to Professor Fiss, 24 Cap. U. L. Rev. 319, 321 (1995)

; Kim M. Watterson, Note, The

Power of Words: The Power of Advocacy Challenging the Power of

Hate Speech, 52 U. Pitt. L. Rev. 955, 969 (1991); Lawrence, supra note 31, at 462; J. Anglo Corlett and Robert Francescotti,

Foundations of a Theory of

Hate Speech, 48 Wayne L. Rev. 1071, 1089 (2002). This harm is many times magnified when the racial expression is directed at a group which has been historically discriminated against. Some have even suggested that racist speech is a form of “spirit-murder.” Patricia Williams,

Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism, 42 U. Miami L. Rev. 127, 151 (1987)

. Victims of racist expression experience feelings of self-hatred, inferiority, alienation, isolation, self-doubt, and helplessness. Richard Delgado and David H. Yun,

Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to

Hate Speech Regulations, 82 Cal. L. Rev. 871, 887 (1994); Post, supra note 31, at 274. Proposals under this harm focus on the content of the hate expression, its abusive nature, and the substantiality of the impact of the harm upon the individual. Richard Delgado,

Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 179 (1982)

; Post, supra note 31, at 274, n.38, n.39.

At least one commentator has characterized hate speech as a deontic harm due to its affects on the individual’s rights. Post, supra note 31, at 272 (citing George R. Wright, Racist Speech and the First Amendment, 9 Miss. C.L. Rev. 1, 14-22 (1988)). Some have argued that toleration and protection for racist expression are inconsistent with the Fourteenth Amendment’s principle of equality. Post, supra note 31, at 272; Wells, supra note 32, at 320; Massey, supra note 31, at 173-74. One commentator has explained: “[A] society committed to ideals of social and political equality cannot remain passive: it must issue unequivocal expressions of solidarity with vulnerable minority groups and make positive statements affirming its commitment to those ideals. Laws prohibiting racist speech must be regarded as important components of such expressions and statements.” Post, supra note 31, at 272. Another commentator suggests that many civil libertarians and judges have ignored the special status of equality in the Constitution and have focused exclusively on First Amendment values. James E. Fleming, Panel I: The Constitutional Essentials of Political Liberalism:

Securing Deliberative Democracy, 72 Fordham L. Rev. 1435, 1435-36 (2004)

. He suggests that the courts should balance First Amendment rights with equal protection when the court must make a determination as to the constitutionality of the allowance of hate speech and/or discriminatory action. Id.

Massey, supra note 31, at 155.

Id.

Id. at 156.

Edward J. Eberle,

Cross Burning,

Hate Speech, and Free Speech in America, 36 Az. St. L. J. 953, 956-57 (2004).

Massey, supra note 31, at 156.

.RFE/RL Newsline, Vol. 5, No. 115, Part II (June 18, 2001).

Philip Shenon, Allies Create Press-Control Agency in Bosnia, N. Y. Times, Apr. 24, 1998, at A8).

Radio Netherlands, Hate Radio: Rwanda, at http:// www2.rnw.nl/rnwen/features/media/dossiers/rwanda-h.html (last visited July 22, 2005). See also Jean Marie Kamatali,

Freedom of Expression and its Limitations: The Case of the Rwandan Genocide, 38 Stan. J. Int’l L. 57 (2002)

. The author is the former dean of the National University of Rwanda.

Radio Netherlands, supra note 41.

Id.

Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Judgement and Sentence (Summary) at 7, International Criminal Tribunal for Rwanda, Case No. ICTR-99-52-T, available at http:// www.ictr.org/default.htm.

Id. at 28-31.

Id. at 16.

See text of Section II.A.

Dennis v. United States,

341 U.S. 494, 501 (1951)

395 U.S. 444, 444-45 (1969)

Id. at 445-46.

Id. at 446.

Id. at 447.

Id. at 448-49.

Id. at 447.

Ineke Boerefijn, Incitement to National, Racial, and Religious Hatred: Legislation and Practice in the Netherlands, in Striking a Balance, supra note 20, at 202 (Sandra Coliver ed., 1992).

Roger Errera, In Defence of Civility: Racial Incitement and Group Libel in French Law, in Striking a Balance, supra note 20, at 147 (Sandra Coliver ed., 1992).

Lederman, supra note 22, at 185.

Id. at 183.

Id.

See generally Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001,

Pub. L. No. 107-56, 115 Stat. 272,

50 U.S.C. § 401

(a). The House approved the Act by a vote of three hundred fifty-six for and sixty-six against, and the Senate vote was ninety-eight for and one against. Michael Leon, Citizens Blast Patriot Act Madison Passes Civil Liberties Resolution, Counter Punch, at http://www.counterpunch.org/leon1016.html (last visited Feb. 9, 2006).

Bob Deans, Bush Defends Eavesdropping Program, Preview State of Union Speech, Cox News Service at http:// www.coxwashington.com/reporters/content/reporters/stories/BC_BUSH27_COX.html (last visited Feb. 9, 2006).

Heinz Klug, Symposium Article: The

Dignity Clause of the Montana Constitution: May Foreign Jurisprudence Lead the Way to an Expanded Interpretation? 64 Mont. L. Rev. 133, 142 (2003)

(explaining Peep Show Case (1), 64 BVerfGE 274 (1981) (F.R.G.)).

Id. at 143.

Id at 143.

Id. at 143.

Id. at 143-44.

Id. at 149

(citing Justice O’Regan in S v. Makwanyane, 1995 (3) SA 391 & 328 (CC)). To see how South Africa has incorporated dignitary harms into antidiscrimination law under the new South African Constitution, see Frank I. Michelman, Reasonable Umbrage: Race and Constitutional Antidiscrimination Law in the United States and South Africa, 117 Harv. L. Rev. 1378 (2004).

Id. at 148.

Id. at 152-53.

See Ranier Hofmann, Incitement to National and Racial Hatred: The Legal Situation in Germany, in Striking a Balance, supra note 20, at 159.

.Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard Cases (University of Pennsylvania Press 2005); Douglas-Scott, supra note 22, at 319-20; Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford University Press 2001).

Kübler, supra note 19, at 344-45.

Douglas-Scott, supra note 22, at 322-23.

The German code includes the following punishment:

(2) Imprisonment, not exceeding five years, or fine will be the punishment for whoever

(a) distributes,

(b) makes available to the public,

(d) produces, stores or offers for use as mentioned in letters (a) to (c) documents inciting hatred against part of the population or against groups determined by nationality, race, religion, or ethnic origin, or inviting to violent or arbitrary acts against these parts or groups, or attacking the human dignity of others by insulting, maliciously ridiculing or defaming parts of the population or such a group, or

(e) distributes a message of the kind described in (1) by broadcast.

(3) Imprisonment, not exceeding five years or fine, will be the punishment for whoever, in public or in an assembly, approves, denies or minimizes an act described in section 220a paragraph 1 committed under the regime of National-socialism, in a manner which is liable to disturb the public peace.

Kübler, supra note 19, at 345.

Douglas-Scott, supra note 22, at 320, 324-25 (citing BGHZ 75, 160-61); Hofmann, supra note 73, at 169.

Douglas-Scott, supra note 22, at 325 (citing BGHZ 75, 162).

Id.

The Court stated the Jews’ fate:

[G]ives every one of them a claim to recognition and respect…. The single fact that people were singled out under the so-called Nuremberg laws and were robbed of their identity with a view to their extermination allocates to the Jews living in the Federal Republic a special personal relationship with their fellow citizens. In the context of this relationship the past is present even today. They are entitled, as a matter of their personal identity, to be viewed as belonging to a fatefully selected group, to which others owe a special moral responsibility which is part of their self worth. Respect for their personal identity is for each of them a guarantee against a return to such discrimination and a fundamental condition for their living in Germany. Whenever someone tries to deny these precedents, they deny each of these individuals their personal value. For this signifies the continuation of discrimination against the group to which they belong.

Douglas-Scott, supra note 22, at 325 (citing BGHZ 75, 162).

Id.

.Stefan Braun, Democracy Off Balance: Freedom of Expression and Hate Propaganda Law in Canada (University of Toronto Press 2004); Manwaring, supra note 21, at 107-08; James Weinstein, An American’s View of the Canadian Hate Speech Decisions, in Free Expression: Essays in Law and Philosophy 175-221 (W.J. Waluchow ed., 1994); Mayo Moran,

Talking About

Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech, 1994 Wis. L. Rev. 1425 (1994).

Manwaring, supra note 21, at 107-08.

Id.

Id. at 109-16.

343 U.S. 988 (1952)

However, the Court has suggested that Beauharnais would probably not stand today.

Smith v. Collin, 439 U.S. 916, 919 (1978)

(Blackmun, J. dissenting from denial of petition for writ of certiorari);

Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978)

(the “approach sanctioned [in] Beauharnais would [not] pass constitutional muster today”).

Although Beauharnais was never expressly overruled, scholars question whether such a decision would be held up as constitutional. The concept of group libel as unprotected expression in Beauharnais was not limited to false statements of facts. Subsequent Supreme Court opinions have clearly held that libel is of low 1st Amendment value only insofar as it consists of false statements of fact. See Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (2d ed. Aspen, 2003).

343 U.S. 250, 266-67 (1951)

Id. at 251.

Id. at 252.

Id.

Id. at 259.

Id.

Id. at 262.

100

Id. at 263.

101

Id.

102

Id.

103

Id. at 266-67.

104

See

Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246 (11th Cir. 2003)

(upholding a school board ban on displays of the confederate flag based, in part, on the importance of achieving a “civilized social order” in the classroom).

105

See generally William Bradford, “With

a Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 Am. Indian L. Rev. 1 (2002)

; Ward Churchill, Perversions of Justice: Indigenous Peoples and Angloamerican Law (2002).

106

See generally Patricia M. Muhammad, The

Trans-Atlantic Slave Trade: A Forgotten Crime Against Humanity as Defined by International Law, 19 Am. U. Int’l L. Rev. 883 (2004)

; Randall Robinson, The Debt: What America Owes to Blacks 216 (2000).

107

See generally

Plessy v. Ferguson, 163 U.S. 537 (1896)

; Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford University Press 2004); Jerrold M. Packard, American Nightmare: The History of Jim Crow (St. Martin’s Press 2002).

108

See generally Jerry Kang,

Denying Prejudice: Internment, Redress, and Denial, 51 UCLA L. Rev. 933, 949-58 (2004)

; Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans (Harvard University Press 2001); Eric K. Yamamoto, Race, Rights, and Reparation: Law and the Japanese American Internment (Aspen Law & Business 2001).

109

See generally Charles H. Brower II, The

Lives of Animals, the Lives of Prisoners, and the Revelations of Abu Ghraib, 37 Vand. J. Transnat’l L. 1353 (2004)

; The torture papers: the road to Abu Ghraib (Karen J. Greenberg & Joshua L. Dratel, Cambridge University Press 2005).

110

See generally Philip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States (1992).

111

See, e.g., Christopher E. Smith,

Imagery, Politics, and Jury Reform, 28 Akron L. Rev. 77 (1994)

; Martha Minow, Not

Only for Myself: Identity, Politics, and Law, 75 Or. L. Rev. 647, 679 (1996)

; Michael D’Orso, Like Judgment Day: The Ruin and Redemption of a Town Called Rosewood 323 (1996); Rhonda V. Magee, The

Master’s Tools, From the Bottom Up: Responses to African-American Reparations Theory in Mainstream and Outsider Remedies Discourse, 79 Va. L. Rev. 863, 882-99 (1993)

112

See Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs (Section III: Incarceration and Race), available at http://www.hrw.org/reports/2000/usa/Rcedrg00-01.htm (last visited July 22, 2005).

113

Smith, supra note 111, at 77; Lou Cannon, Official Negligence: How Rodney King and the Riots Changed Los Angeles and the LAPD (Westview Press 1997).

114

See generally Adam A. Milani,

Harassing

Speech in the Public Schools: The Validity of Schools’ Regulations of Fighting Words and the Consequences If They Do Not, 28 Akron L. Rev. 187 (1995); Richard Delgado,

Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343 (1991)

; Hate Speech on Campus: Cases, Case Studies, and Commentary (Milton Heumann, Thomas W. Church, and David P. Redlawsk. eds., Northeastern University Press 1997); Richard Delgado and Jean Stefancic, Must we defend Nazis: Hate Speech, Pornography, and the New First Amendment (New York University Press 1997); Timothy C. Shiell, Campus Hate Speech on Trial (University Press of Kansas 1998).

115

See generally Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States (Rowman & Littlefield 2003); Christopher A. Bracey, Symposium: Race Jurisprudence and the Supreme Court: Where Do We Go From Here?

Dignity in Race Jurisprudence, 7 U. Pa. J. Const. L. 669, 703-04 (2005)

116

Kübler, supra note 19, at 337-38.

117

The sole exception is Montana, which makes reference to human dignity but has not developed a jurisprudence on the subject. Klug, supra note 65, at 133.

118

See John Paul II, Encyclical Letter on the Value and Inviolability of Human Life: Evangelium Vitae (1995); Henri J. M. Nouwen, Life of the Beloved, Spiritual Living in a Secular World (10th ed., Crossroad 2002); Thomas Merton, No Man is an Island (Dell 1955); Rollo May, Man’s Search For Himself (

Norton 1953

); Jean Vanier, Becoming Human (Anansi 1998); Jean vanier, The Heart of L’Arche (Crossroad 1995).

119

Izhak Englard, URI and Caroline Bauer Memorial Lecture:

Human Dignity; From Antiquity to Modern Israel’s Constitutional Framework, 21 Cardozo L. Rev. 1903, 1910 (2000)

. See also Charles Trinkaus, The Poet as Philosopher: Petrarch and the Formation of Renaissance Consciousness 124 (Yale University Press 1979).

120

Englard, supra note 119, at 1912-14.

121

Id. at 1912.

122

Id. at 1914. See also Nathan Rotenstreich, Man and His Dignity 53 (1983).

123

Englard, supra note 119, at 1917.

124

Id. See also Samuel Pufendorf, De iure naturae et gentium libri octo bk. II, ch. 1, § 5 (C.H. & W.A. Oldfather trans., 1995) (1706).

125

Englard, supra note 119, at 1918.

126

Id. at 1920 n.84.

127

Id. at 1920-21.

128

Id. at 1920 n.85.

129

Judith Resnik and Julie Chi-hye Suk,

Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 Stan. L. Rev. 1921 (2000)

130

Englard, supra note 119, at 1921.

131

Id. at 1921 n.88. Bracey, supra note 115, at 678. Luis Anibal Aviles Pagan,

Human Dignity, Privacy and Personality Rights in the Constitutional Jurisprudence of Germany, the United States and the Commonwealth of Puerto Rico, 67 Rev. Jur. U.P.R. 343, 346 (1998)

(stating “[i]n Germany, the ideas of Kantian moral theory are deeply ingrained in the legal structure”); see also Edward J. Eberle,

Human Dignity, Privacy, and Personality in German and American Constitutional Law, 1997 Utah L. Rev. 963, 975-76 (1997)

132

Pagan, supra note 131, at 351.

133

Englard, supra note 119, at 1923.

134

Other states have similar constitutional provisions for human dignity, such as: Brazil, Costa Rica, Nicaragua. See Christopher A. Bracey, Symposium: Race Jurisprudence and the Supreme Court: Where Do We Go From Here?

Dignity in Race Jurisprudence, 7 U. Pa. J. Const. L. 669, 683 (2005)

135

Art. 1, Sec. 1, The German Basic Law of 1949.

136

Art. 1, Sec. 2, The German Basic Law of 1949.

137

Kübler, supra note 19, at 342; Douglas-Scott, supra note 22, at 319.

138

Id. at 341.

139

Id.

140

Id. at 342.

141

Id. at 341.

142

Id.; Douglas-Scott, supra note 22, at 327.

143

Vicki Jackson,

Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse, 65 Mont. L. Rev. 15, 22-25 (2004)

144

Id.

145

Id. at 22 (citing

Estado Libre Asociado v. Hermandad de Empleados, 104 P.R. Dec 436, 439-40 (1975)

). The Supreme Court of Puerto Rico has stated that:

“Formulation of a Bill of Rights following a broader style than the traditional, that would gather the common feeling of different cultures on new categories of rights[,] was sought. Hence the Universal Declaration of Human Rights and the American Declaration of Human Rights and Duties exercised such an important influence in the drafting of our Bill of Rights.”

Estado Libre Asociado v. Hermandad de Empleados, 104 P.R. Dec. 436, 439-40 (1975)

146

Klug, supra note 65, at 153.

147

See R. v. Morgentaler [1998] S.C.R. 30, 164 (Can.).

148

See Bracey, supra note 115, at 683.

149

.The Declaration of Independence, para II (U.S. 1776). The Gettysburg Address, para. I (U.S. 1863).

150

George P. Fletcher, In God’s Image: The Religious Imperative of Equality Under Law, 99 Columb. L. Rev. 1608, 1624 (1999).

151

See Bracey, supra note 115, at 681.

152

Pagan, supra note 131, at 360. But also see Hugo Adam Bedau, The Eighth Amendment, Human Dignity and the Death Penalty, in The Constitution of Rights: Human Dignity and American Values, 151 (Michael J. Meyer & William A. Parent eds., Cornell 1992) (discussing Chief Justice Earl Warren and human dignity).

153

Justice William J. Brennan, Jr., Address, Construing the Constitution, 19 U.C. Davis L. Rev. 2, 8 (1985); Bracey, supra note 115, at 683.

154

“Justice Stevens… regularly draws inspiration from the religious foundation of equal protection and quotes the principle that all persons are created equal.” George P. Fletcher, In God’s Image: The Religious Imperative of Equality Under Law, 99 Columb. L. Rev. 1608, at 1628. See also notes 50 and 71.

155

Pagan, supra note 131; Jackson, supra note 143. But also see

Lawrence v. Texas, 539 U.S. 558 (2003)

156

U.S. Const. amend. I

157

Justice Black maintained that laws limiting speech were unjustified “by a congressional or judicial balancing process.”

Barenblatt v. United States, 360 U.S. 109, 141

(Black, J., dissenting). His view was never shared by a majority of the court. See Alexander Tsesis,

Regulating Intimidating

Speech, 41 Harv. J. on Legis. 389, 393 (2004).

158

See

Roth v. United States, 354 U.S. 476 (1957)

;

Miller v. California, 413 U.S. 15 (1973)

159

See

New York Times v. Sullivan,

376 U.S. 254 (1964)

160

See New York Times Co. v. United States;

United States v. Washington Post Co., 403 U.S. 713 (1971)

. In

Haig v. Agee, 453 U.S. 280 (1981)

, the court upheld Agee’s passport revocation because his statements and activities abroad caused “serious damage to the national security.” The court stated,

[L]ong ago, [this] Court recognized that “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Agee’s disclosures [have] the declared purpose of obstructing intelligence operations and the recruiting of personnel. They are clearly not protected by the Constitution.

Id.

161

See

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

162

See

Brandenburg v. Ohio,

395 U.S. 444 (1969)

163

See

Frohwerk v. United States, 249 U.S. 204 (1919)

(prohibiting counseling to murder is constitutionally permissible).

164

See

18 U.S.C. 1951

(2000) (prohibiting conspiracy to commit extortion under the Hobbs Act).

165

See

18 U.S.C. 873 (2000)

(outlawing blackmail).

166

See

Watts v. United States,

394 U.S. 705 (1969)

;

Bridges v. California, 314 U.S. 252 (1941)

167

Connick v. Myers, 461 U.S. 138 (1983)

(limiting public employee speech is constitutional).

168

274 U.S. 357, 371 (1927)

(overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969)).

169

Id. at 363-64.

170

Id. at 363.

See

Cal. Penal Code §§ 11400

–

11402 (1953)

171

Id. at 371.

172

341 U.S. 494, 501 (1951).

173

Id. at 497.

174

Id. at 504.

175

Id. at 510

(quoting

United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)

176

Id. at 542.

177

395 U.S. 444 (1969).

178

Ohio Rev. Code Ann. § 2923.13

(1972).

179

Id. at 444-45.

180

Id.

181

Id. at 446.

182

Id. at 447.

183

Id. at 448-49.

184

343 U.S. 250 (1951)

. Although Beauharnais was never expressly overruled, scholars question whether such a decision would be upheld as constitutional. See supra note 91 and accompanying notes.

185

Id. at 251.

186

Id. at 259.

187

315 U.S. 568, 573 (1942)

188

Id.

189

Id.

190

Id.

191

Id. at 574.

192

Douglas-Scott, supra note 22, at 321.

193

Id. (quoting Art. 5.2 GG).

194

Id.; Ronald J. Krotosznski, Jr.,

A Comparative Perspective on the First Amendment: Free

Speech, Militant Democracy, and the Primacy of Dignity as a Preferred Constitutional Value in Germany, 78 Tul. L. Rev. 1549, 1557 (2004).

195

Pagan, supra note 131, at 346.

196

Douglas-Scott, supra note 22, at 322.

197

In addition to criminal sanctions, some written forms of expression are strictly forbidden, such as Mein Kampf. Krotosznski, supra note 194, at 1597.

198

Id. at 1575-77. See Strauss Caricature Decision, BVerfGE 75, 369, 1 BvR 313/85 at www.ucl.ac.uk/laws/global_law/german-cases/cases_ bverg.shtml?03jun1987 (last visited May 3, 2006).

199

Id. at 1576. But see

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

200

Klug, supra note 65, at 153.

201

Khumalo v. Holomisa, 2002 (5) SA 401, & 40 (CC), 2002 (8) BCLR 771, & 40 (CC), 2002 (53) SALR 01, & 40 (CC).

202

376 U.S. 254 (1964).

203

Klug, supra note 65, at 153.

204

Id. at 153-54.

205

Id. at 154.

206

Christopher J. Roederer, Post-matrix Legal Reasoning: Horizontality and the Rule of Values in South African Law, 19(3) S. Afr. J. Hum. Rts. 57 (2003) at 66-67, quoting Dawood v. Minister of Home Affairs 2000(3) SA 936 (CC); 2000 (8) BCLR 837 (CC) para 35.

207

Khumalo, supra note 201, at 44.

208

395 U.S. 444 (1969) (per curiam).

209

Id. at 447.

210

Department of Justice, 1997 Report on the Availability of Bombmaking Information 26 (1997) Feb. 10, 2000, at 24, http:// www.usdoj.gov/criminal/cybercrime/bombmakinginfo.html.(last visited Feb. 1, 2006). For an excellent discussion of how the Brandenburg test does not achieve the appropriate balance when speech advocating lawless behavior does not cause any imminent danger but still poses a grave risk, see S. Elizabeth Wilborn Malloy & Ronald J. Krotoszynski,

Recalibrating the Cost of Harm Advocacy: Getting Beyond Brandenburg, 41 Wm. & Mary L. Rev. 1159 (2000)

211

Rice v. Paladin Enters., Inc., 940 F. Supp. 836, 841 (D. Md. 1996)

, rev’d,

128 F.3d 233 (4th Cir. 1997)

, cert. denied,

523 U.S. 1074 (1998)

212

Id. at 263.

213

458 U.S. 886 (1982)

214

Id. at 902.

215

Id. at 932.

216

Rice v. Paladin, 128 F.3d at 241

217

Scholar Is Given Life Sentence in ‘Virginia Jihad’ Case, N.Y. Times, July 14, 2005, at A17.

218

Matthew Barakat, Islamic Scholar Ali Al-Timimi Convicted (April 26, 2005) http://abcnews.go.com/US/print?id=705180. Note: If this decision stands, opponents will use it as evidence that flexibility with hate speech restrictions is greater when the threatened group is the majority population, not a minority group, because they can identify more easily with the threat and the threat is from without, not within.

219

Another way to transcend the imminence requirement in a constitutional fashion is to address hate speech that harasses. Harassing speech typically must be persistent, directed at specific individuals, and inflict significant emotional or physical harm. When this occurs in a work environment, it causes economic harm which arguably should be recoverable. See Cynthia L. Estlund,

Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment, 75 Tex. L. Rev. 687 (1997)

; Cynthia Grant Bowman,

Street Harassment and the Informal Ghettoization of Women, 106 Harv. L. Rev. 517 (1993)

220

See, e.g.,

18 U.S.C. § 875(c)

(2000).

221

Id. at § 871(a).

222

Id. at § 115(a)(1)(b).

223

26 U.S.C. § 7212(a)

(2000).

224

18 U.S.C. § 1503

225

Id. at § 248.

226

Id. at § 875(c).

227

394 U.S. 705 (1969).

228

Watts, 394 U.S. at 706

;

18 U.S.C. 871

229

Watts, 394 U.S. at 706 (quoting an Army investigator’s testimony of the defendant’s statements).

230

30.

Id. at 708.

231

31.Id. at 708.

232

32.

Id. at 707.

233

Virginia v. Black, 538 U.S. 343, 359-60 (2003)

(defining true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence”).

234

34.In

United States v. Malik, 16 F.3d 45, 50 (2d Cir. 1994)

, the court held that contextual evidence could prove determinative in deciding whether ambiguous language was a true threat. In

Lovell v. Poway Unified School District, 90 F.3d 367, 372 (9th Cir. 1996)

, the court adopted an objective test to decide whether the specific words constitutes a true threat.

235

35.

United States v. Manning, 923 F.2d 83 (8th Cir. 1991)

;

United States v. Hoffman, 806 F.2d 703 (7th Cir. 1986)

236

36.See

Hoffman, 806 F.2d at 708;

United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990)

237

37.

United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997)

; see also

Orozco-Santillan, 903 F.2d at 1265

238

38.See, e.g.,

United States v. Welch, 745 F.2d 614, 618 (10th Cir. 1984)

;

United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir. 1983)

239

39.Watts, 395 U.S. at 708.

240

40.G. Robert Blakey, Brian J. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 Baylor L. Rev. 829, 1076 (2002).

241

41.See Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283 (2001) (argues that to prove a true threat a three prong test must be met: 1) that the speaker knowingly or recklessly made a statement that would frighten or intimidate the victim with the threat of harm; 2) that the speaker knowingly or recklessly suggested that the threat would be carried out by the speaker or his co-conspirators; and 3) that a reasonable person who heard the statement would conclude that it was meant to threaten the victim with harm).

242

42.Steven G. Gey, The

Nuremburg Files and the First Amendment Value of Threats, 78 Tex. L. Rev. 541, 591 (2000)

243

43.

United States v. Dinwiddie, 76 F.3d 913, 922 n.5 (8th Cir. 1996)

244

44.

State v. Deloreto, 265 Conn. 145 (2003)

, at 151.

245

45.Id. at 156. See also United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990) (applying

18 U.S.C. 115

, which prohibits threatening to assault federal law enforcement officer).

246

46.505 U.S. 377 (1992).

247

47.538 U.S. 343 (2003).

248

48.

United States v. J.H.H., 22 F.3d 821, 826-27 (8th Cir. 1994)

249

49.Laura J. Lederer, The Case of Cross Burning: An Interview with Russ and Laura Jones, in The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography 30 (Laura Lederer & Richard Delgado eds., 1995).

250

50.

J.H.H., 22 F.3d at 826-27 (8th Cir. 1994)

251

51.St. Paul, Minn., Legis. Code 292.02 (1990).

252

52.

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 381 (1992)

253

53.

Id. at 391.

254

254.

Id. at 379.

See supra note 1.

255

Wisconsin v. Mitchell, 508 U.S. 476 (1993)

256

Id. at 480.

257

Id. at 487.

258

See

Hishon v. King & Spaulding, 467 U.S. 69 (1984)

(Title VII does not infringe upon employer’s First Amendment rights).

259

Wisconsin, 508 U.S. at 488

260

Virginia v. Black, 538 U.S. 343 (2003)

261

Id. at 348.

262

Id. at 349.

263

Id.

264

Va. Code Ann. § 18.2-423 (1950)

265

538 U.S. at 350

266

Id.

267

Id.

268

Id.

269

Id.

270

Id.

271

Id. at 350-51.

272

Black v. Commonwealth, 553 S.E.2d 738, 744 (Va. 2001)

273

Id. at 746.

274

Virginia v. Black., 538 U.S. 343 (2003)

275

Id. at 380-81.

276

Id. at 394-95.

277

Id. at 368.

278

Id.

110 PENNSTLR 539

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