Do racists have a constitutional right to express their views in ways that severely restrict the rights of African Americans to be, live, and go where they please? When does a racist threat, veiled and anonymous, become a hate crime-and should such a threat be protected by the First Amendment?–Loretta Ross
In July, 1993, Anthony Griffin, an African-American attorney for the NAACP in Galveston, agreed to represent the Texas Knights of the Ku Klux Klan in a First Amendment case. The dispute arose from Klan efforts to prevent the court-ordered integration of an all-white housing project in Vidor, Texas. The Klan had conducted a year-long campaign of resistance against the court-decision, including sixteen different rallies and direct intimidation: the Texas Commission on Human Rights says the life of Vidor’s mayor was threatened, and four men in Klan military garb threatened to burn the housing project down if blacks moved in. Finally, the commission ordered the Klan to turn over its membership records to facilitate the investigation of possible criminal acts by Klan members. When the Klan refused, a judge jailed Grand Dragon Charles Lee for contempt of court. Enter Griffin.
Griffin rationalized his decision to defend the KKK by arguing that the Klan had First Amendment rights that, as an ACLU volunteer lawyer, he was compelled to defend: “The Klan has a right to meet and organize, and they have a right to say as many abhorrent, horrible, nasty, violent, vicious things as they want to say,” he said. Griffin did not see race as relevant to the case. The Texas NAACP dismissed Griffin on the grounds that it was impossible for NAACP general counsel to represent his organization and the Klan at the same time.
The case illustrates the troublesome and misconceived relationships among the First, Thirteenth, and Fourteenth Amendments. In theory, the Thirteenth and Fourteenth Amendments to the Constitution can serve as limitations on the power of racist groups like the Klan to exercise traditional First Amendment rights of free speech and association. The Thirteenth Amendment, passed after the Civil War, outlawed slavery and prohibited depriving African Americans “of the basic rights that the law secures to all free persons.” The amendment was intended not only to eliminate slavery, but also to eradicate the “badges of slavery,” i.e., racism. The Fourteenth Amendment prohibited denying to any person equal protection of the law. Klan activity in Vidor directly denied African Americans the right to live where they pleased. Whites who favored integration were also threatened. All the victims’ equal protection of the law was denied by racist activities prohibited by the Constitution.
African Americans nervously applaud the First Amendment, thankful for its protections that sometimes, but not always, extend to the struggle against racial oppression. However, their support is tempered by the way the amendment has been used to protect anti-black terrorism. Do racists have a constitutional right to express their views in ways that severely restrict the rights of African Americans to be, live, and go where they please? When does a racist threat, veiled and anonymous, become a hate crime-and should such a threat be protected by the First Amendment?
Many who oppose restricting First Amendment protections for hate groups view hate speech apart from its actual cost in terms of human suffering. By not placing their arguments against the reality of white privilege in America, they decontextualize the freedom to express one’s beliefs from the speaker’s right to impose those belief on others. As Lani Guinier pointed out during her nomination to head the civil rights division of the Justice Department , this social and historical denial implies that “the remedy for racism is to simply stop talking about race,” as if American were truly a race-neutral society. First Amendment absolutism prevents serious public debate about racial fairness and justice by casting the victims of racism as censors.
In their preoccupation with abstractions, absolutists fail to understand that America’s lynching past is not over. Contemporary racist violence against African Americans reflects the stark brutality of earlier periods, and African Americans disproportionately shoulder the burden of keeping the First Amendment (selectively) unrestricted. For example, Michael Donald, a twenty-one -year-old college student, was lynched in Mobile, Alabama, by Klansmen in 1981. Gangs of white youths were responsible for the deaths of Michael Griffith in New York City in 1986; Tony Montgomery in Reno, Nevada, in 1988; Timothy Moss in California’s Simi Valley in 1992; and the lynchings of William Brooks and Carlos Stoner in North Carolina in 1992. On New Year’s Eve in 1993, freelance racists in Florida kidnapped Christopher Wilson, a black tourist, and set him on fire. These are only a few of thousands of hate crimes that have been experienced by African Americans in the last decade. According to statistics from the Department of Justice, 75 percent of all racially motivated hate crimes were directed at African Americans in 1992- the first year that hate crimes were counted by the federal government. Extremist activity targeting people of color continues to undermine democratic participation, because when people are intimidated or harassed, they tend to hide, withdraw, and become angry. White supremacists are doing the dirty work of other racist segments of the population, who themselves may not want to physically intimidate African Americans, but who like the results of that intimidation.
Hate Groups and the First Amendment
Hate speech is an integral part of white supremacists’ campaigns. They use it to rally support, to cement solidarity, to threaten their victims-not to generate oppositional speech. Its purpose is to intimidate, humiliate, assault, and defame, but also, very importantly, to silence. Hate speech can be compared to death threats, libel, or fraud more easily than to the remarks of someone who, for example, dislikes smokers. Hate speech directed toward one black person is an injury to all African Americans. When civil libertarians insist that, although they abhor racist speech, it is private, and protected under the First Amendment, they deny its public harm and its ability to limit the human and civil rights of an entire targeted group.
Hate groups use a combination of legitimate and illegal activities to pursue their goals. Hate speech is one powerful weapon in their arsenal. Public rallies and demonstrations help them to gain visibility and provoke public controversy, which in turn increases media coverage and attracts recruits. It is common for them to rally peacefully in public during the day, and then to commit hate crimes under cover of darkness. For example, after a 1993 neo-Nazi concert in Pennsylvania, which attracted over 300 skinheads from around the country, at least five hate crimes occurred, including an incident in which skinheads leaving the concert attempted to run over a black cyclist.
A large proportion of hate crimes directed toward African Americans are called “move-in” violence because they are designed to keep blacks out of white jobs, communities, and schools. Because of segregation and fear, whites see blacks as “hordes” invading their communities, and they make this sentiment very clear. Klan rallies in neighborhoods undergoing integration in housing or in the public schools send an unmistakable message to African Americans in those communities. And these expressions are matched by more violent ones: in January 1993, Frank Scire of Brooklyn, New York, received an eight-year prison term for the 1991 firebombing of an “integrationist” real estate firm. The Prejudice Institute recently reported that 27 percent of all racist violence takes place at work because of increased minority representation in the work force, and that 20 percent of minority college students at predominantly white institutions are assaulted or harassed each year.
An infrequently mentioned consequence of hate speech is that it encourages those who are not even members of hate groups to commit hate crimes. Violent freelance racists look to the Ku Klux Klan and to neo-Nazi organizations for inspiration. The symbols and methods of the independent racist are often those of the KKK and the neo-Nazis: the burning cross, the swastika, anonymous vandalism in the night. The U.S. Civil Rights Commission reported that organized white supremacist groups provide the rhetoric of justification for other violent racists, who act on impulse.
Klan marches through small towns polarize residents, often provoking racist violence long after the event. Shortly after a 1992 Klan rally in Lenior, North Carolina, for example, two white students stabbed two of their black classmates to death. When arrested, the students confessed that they had been influenced by the heightened racial tension in the town and had been given hate literature that was made widely available both before and after the Klan rally.
The Courts, Hate Speech, and Hate Crimes
In the past decade, forty-six states have passed laws prohibiting hate crimes and denying them constitutional protection; municipal laws and campus speech codes have been adopted; and 1990 brought passage of the Federal Hate Crimes Statistics Act. These measures were passed because an epidemic of hate crimes-many initiated with hate speech-is sweeping the nation. At the same time, civil suits have begun to gain success. For example, when Tom Metzger, of the White Aryan Resistance, encouraged young skinheads to murder an Ethiopian immigrant student in 1988, he was not criminally charged with the murder. The skinheads actually responsible are serving long prison terms for that. But a civil court jury found Metzger liable for his encouragement of the skinheads and awarded the student’s family a $12.5 million judgment against Metzger-though some argued that he was merely exercising his First Amendment rights. Some of the debate over hate group activity and bigoted violence has finally moved into the public policy arena, as the judicial system has been forced to examine the connection between hate speech and hate crimes.
In 1992, the Supreme Court invoked the First Amendment to prevent the state of Minnesota from censoring “speech” (in this case, a burning cross) just because the idea expressed was offensive. Yet one year later, in Wisconsin v.Mitchell, the Supreme Court ruled that a black teenager who said “there goes a white boy; go get him” to initiate a brutal attack against a white teenager in 1989 could be given an enhanced sentence in accordance with the state’s hate crime laws. This conflicting set of messages has affected decisions in lower courts. For example, on August 27, 1993, the Maryland Court of Appeals overturned a law that made cross-burning a felony in Maryland, ruling that it restricted constitutionally protected speech. The law, enacted in the mid-1960s during a rash of violence against African-Americans in the state, required crossburners to first obtain the permission of property owners and to notify local fire officials. The case stemmed from a 1991 incident in which Brandon Sheldon, a white supremacist, burned a cross on the lawn of a black family in Upper Marlboro. The Maryland Court of Appeals ruled that cross-burning, even when done on someone else’s property, qualifies as free speech. The charges against Sheldon were dismissed.
Can Hate-Speech Regulation Deter Hate Crimes
Anti-racists do not naively expect hate-speech and hate-crime regulations to eliminate racism. One cannot even outlaw the entire realm of racist speech because so often speech is ambiguous. The California raisin commercials were found offensive by some African Americans; humorous by others. Rush Limbaugh must be tolerated; so must tasteless humor. Similarly, one cannot and should not suppress discussion of racial differences and characteristics. It is when speech is used to rationalize discrimination and prejudice that it moves beyond mere offense into undeniable injury.
This is an essential distinction. One may be offended by scholars who seek to prove racial superiority or inferiority. As pseudoscience these theories should receive the same credence as those who insist that 2 + 2 = 5. But African Americans are injured-threatened-when a KKK member who lives next door to a black family displays a sign in his yard that caricatures a black man with a gun at his head. The wording on this actual sign in Gainesville, Georgia, read: “A mind is a terrible thing to waste; that’s why niggers don’t have any.” It was a reference to the Christian Identity belief that blacks are nonhuman or “pre-Adamic” beasts created before God created Adam, the first human. Thus, Christian Identity leaders argue, only whites can be true Christians , and, moreover, they can murder African Americans without any consequences to their Christian souls because they are merely practicing “animal control.” Propagation of these beliefs has had deadly consequences.
Many who desire hate speech regulation have legitimate concern about the role of the government in its regulation. They see the government as inherently hostile to the interests of oppressed minorities and assume that, no matter what hate-speech laws are passed, these laws will be enforced in a racist manner. They fear that hate speech regulation will become another tool for whites to use in perpetuating racism, that whites will find ways to define themselves as America’s victims. But whether or not hate-speech regulation will harm the victims of racism will be determined by the strength of the social movement to eliminate hate speech. That movement will influence how the law is used, now and in the future. Civil rights laws historically have been as effective as the political movements behind them. As the lack of enforcement in the 1980s proved, civil rights laws become ineffective when they lack a social movement to ensure that racism does not win in the contest of competing rights.
The First Amendment is an indispensable part of our rights in society, and must not be casually limited. But regulating hate speech does not destroy the First Amendment any more than regulating pornography destroys sex. It is important to remove the potent weapon of hate speech from the hands of racists if America is ever to live up to its promise of equality for all its people. Only when racism is purged from the mainstream and the margins of American society will true democracy be created. ©—Loretta J. Ross from The Price We Pay: The Case Against Racist Speech, Hate Propaganda, and Pornography edited by Laura Lederer and Richard Delgado, Hill&Wang, 1995