Communications intended to insult, degrade, intimidate, or create animosity against a person or persons belonging to a particular race, ethnicity, gender, religion, disability, or sexual orientation.

The Supreme Court has long accepted the principle that a number of narrowly defined categories of communication are not protected by the First Amendment. In Chaplinsky v. New Hampshire[c]Chaplinsky v. New Hampshire (1942), for example, the Court declared that one of these categories was the use of “fighting words,” or a face-to-face declaration of extremely offensive words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Although the Chaplinsky ruling has been reaffirmed in principle, the Court applied the category of fighting words so narrowly that it became almost impossible to draft a law or ordinance that is enforceable. In Gooding v. Wilson[c]Gooding v. Wilson (1972) and Lewis v. New Orleans[c]Lewis v. New Orleans (1974), the Court struck down ordinances that used the term “opprobrious language,” which Justice William J. BrennanBrennan, William J., Jr.;Lewis v. New Orleans, Jr., argued was overly broad because it might be applied to constitutionally protected speech.

The Court appeared to endorse the criminalization of some forms of hate speech in the almost forgotten case of Beauharnais v. Illinois[c]Beauharnais v. Illinois (1952). The defendants in the case had been showing offensive lithographs of African Americans when petitioning for racial segregation, and they were convicted under a statute that made it a crime to expose persons to “contempt, derision, or obloquy” because of their race, creed, or religion. The official opinion of the Court argued that measures against criminal libels had been sanctioned by centuries of Anglo-American law. Even though the Beauharnais ruling has never been formally overturned, the Court’s rulings since 1952 have made it manifestly clear that it is no longer a binding precedent.

The main problem with Justice Oliver Wendell Holmes’sHolmes’s, Oliver Wendell;clear and present danger test clear and present danger testClear and present danger test;vagueness of was its vagueness, which left it susceptible to so many different interpretations and applications. The Court presented a modified version of theClear and present danger test;modifications of test in Brandenburg v. Ohio[c]Brandenburg v. Ohio (1968), a case involving a Ku KluxKu Klux Klan Klan leader who was convicted of suggesting, in a televised rally, that violent actions might be necessary or desirable. In overturning his conviction, the Court allowed government to punish advocacy of illegal conduct only when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg’s so called “imminent and likely danger” test clearly distinguished between the expression of an idea and the commission of a crime, making it impossible to punish persons for hate speech except when there is a direct and immediate linkage between the speech and a criminal act. The constitutional right to express unpopular, even intolerant, ideas was further strengthened in the case of Smith v. Collins[c]Smith v. Collins (1978), when the Supreme Court refused to review the Seventh Circuit’s decision that authorized the American Nazi PartyNazi Party, American to march on a public street in the predominantly Jewish community of Skokie, Illinois.

During the late 1980’s and 1990’s, more than thirty states and numerous communities and colleges enacted speech codes or laws prohibiting speech communicating various kinds of hate or bias. College speech codesSpeech, freedom of;college speech codesSpeech codes tended to be especially broad, and when challenged, they were almost invariably found to violate the First Amendment in lower courts. In the case of R.A.V. v. City of St. Paul[c]R.A.V. v. City of St. Paul[RAV v. City of St. Paul] (1992), the Supreme Court examined an antibias criminal ordinance that prohibited the display of a symbol that “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” Robert A. Viltora and another teenager were punished for disobeying the ordinance after they burned a cross on a black family’s lawn. In their review of the case, the Supreme Court justices unanimously voted to strike down the ordinance, but they based their conclusions on different rationales. Justice Antonin ScaliaScalia, Antonin;R.A.V. v. City of St. Paul[RAV v. City of St. Paul], for example, argued that the ordinance violated the First Amendment because of it “viewpoint discrimination,” punishing some expressions of hostility and allowing others. A majority of the justices agreed that a narrowly drawn law punishing race-based “fighting words” would be constitutional. Following the ruling, many states and communities, and college attempted to establish new rules in content-neutral language.

The state of Virginia enacted a statute that made it a felony to burn a cross with the intent to “intimidate” a person or group of persons. The statute also specified that any act of cross-burning would be taken as “prima facie evidence” of a person’s intent to intimidate. In reviewing the cases of three persons convicted under the statute in Virginia v. Black[c]Virginia v. Black (2002), the Supreme Court issued two 6-3 rulings. First, the Virginia statute was constitutional so long as it was construed to punish a person for the act of intimidating or threatening another person. Secondly, the Court found that the First Amendment forbade the state to punish a cross-burner whose intent was simply to communicate a pro-Ku Klux KlanKu Klux Klan idea, without sufficient evidence that he intended to intimidate a particular person. The ruling in Virginia v. Black implicitly recognized that individuals have the constitutional right to communicate messages of hatred or disdain toward social groups or individuals if they are so inclined.

• Greenawalt, Kent. Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton, N.J.: Princeton University Press, 1995.
• Sturm, Philippa. When the Nazis Came to Skokie: Freedom for the Speech We Hate. Lawrence: University Press of Kansas, 1999.
• Walker, Samuel. Hate Speech: The History of an American Controversy. Lincoln: University of Nebraska Press, 1994.

Brandenburg v. Ohio

Brandenburg v. Ohio

Libel

Scalia, Antonin

Speech and press, freedom of

Symbolic speech

Virginia v. Black