Friday, May 28, 2010

Free Speech: What’s Protected, What’s Not

Washington and Lee University Law School Dean Rodney Smolla - soon to take over as president of Furman University in North Carolina - is a career educator, an attorney specializing in 1st Amendment law and a much-published author. Speaking at this year’s Law Day Conference, an event sponsored by the Virginia Law Foundation, Smolla sought to shed some light on a sticky subject: the limits of free speech under our Constitution.

The conference was held April 30th at Richmond’s Holocaust Museum; Smolla was the third and last of the speakers. His predecessors defined hate speech and revealed some of its real-world dangers; Smolla warned against overreacting to cleverly, even hyperbolically stated opinions which may be offensive, but do not fit the definition of hate speech.

“As you bring too many things into what you call hate speech,” he told the conference, “you risk condemning your own political opponents simply because they are clever and good at exaggeration, or satire or a biting turn of phrase to attack your ideological position.”

Smolla warned all sides of the political spectrum not to attack each other, then claim the opposition engaged in hate speech, when all the opposition really did was zing them with a killer response. He used as an example the “Affirmative Action Bake Sales” held on various campuses, including the University of Richmond’s. Those were events at which white students were charged market rates for their cookies and cupcakes while minority students were only asked for a penny. Smolla says that’s not the way he’d make a point about the value of affirmative action, but it was not, as portrayed by some critics, hate speech.

Smolla says there are two basic schools of thought on the limits of protected speech: the early American school and the modern American/European school. Supreme Court Justice Oliver Wendell Holmes sided with both schools at one time or another, but articulated the early American view in a classic opinion.

The case was Chaplinsky vs. New Hampshire, and it focused on a religious fanatic who, in a public park, railed against the religious views of others. The crowd grew uneasy, a police officer tried to talk Chaplinsky into calming down, and when that failed, arrested him. During the arrest, Chaplinsky called the officer a "racketeer" and a "Fascist." Chaplinsky appealed the arrest all the way to the US Supreme Court, which upheld the conviction. Holmes wrote a famous opinion which contained a pivotal sentence.

“The court said, in one sentence, that the slight social value [such speech] might have is outweighed by the damage that it does to morality and good order,” explained Smolla. “The court basically said what we would all think of as true of hate speech; it contributes nothing that we can imagine of any serious nature to the world of ideas, but we know it is corrosive of our sense of morality and our sense of order, so the court said it’s not protected by the 1st Amendment.”

That early American view has largely been supplanted with the modern American/European view. Precedent was established in, among others, a 1969 case, Brandenburg vs. Ohio. Local Ku Klux Klan member Clarence Brandenburg invited a Cincinnati TV station to cover a Klan rally. There, Klansmen burned a cross and made speeches warning racial and religious minorities of possible “revengence” against them. He was charged with advocating violence under a state “criminal syndicalism” statute left over from the 1919 Red Scare. When the Supreme Court reversed his conviction, Smolla says the opinion sought to draw tight connections between evil speech and violence.

“The Supreme Court of the United States” said Smolla, “held that the 1st Amendment protected the Klan’s right to engage in virulent hate speech, including a cross-burning as part of a Klan ritual, unless the state of Ohio could prove the speech was directed to the incitement of imminent lawless action and likely to produce such action … a very difficult standard to meet.”

The lines between protected and unprotected speech in modern American law have changed over the years, but they are essentially libertarian and well defined by decades of Supreme Court case law.

/Mark Dorroh

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