9 Unprotected Categories: Fighting Words and Hate Speech

Fighting Words and Hate Speech

In recent decades, legal attention to fighting words has been reinvigorated by the problem of hate speech, defined here as speech that encourages hate or promotes violence against individuals on the basis of a group characteristic, typically race, gender, sexual orientation, or some other immutable aspect fundamental to their identity. Hate speech is viewed as harmful not only to its recipients but to society, as it challenges principles of democratic equality and supports specific racial, gender, or other hierarchies in which some people are deemed less than others.

Prior to the 1960s, prohibitions on fighting words were more likely to be applied to civil rights speakers who agitated white audiences than to individuals using hate speech against minorities. After the Civil Rights movement, however, legal, academic, and political elites took more seriously the problems hate speech could cause in the public sphere. Such efforts increasingly led to prohibitions of some sort on hate speech, which in turn led to legal challenges alleging that hate speech laws violated the First Amendment.

One early and memorable example of the intersection between hate speech and fighting words doctrine came in 1977 from the efforts of the National Socialist Party of America (Nazis, in other words). Frank Collin, the Nazi leader, had asked for a permit to march in the city of Chicago. Facing bureaucratic resistance, he then applied for permits in a number of Chicago suburbs that had high numbers of Jewish occupants. Eventually, the Nazis settled on Skokie (one of the only suburbs that had responded to their permit requests), a suburb known not only for having a large Jewish population but also a relatively large sub-population of Holocaust survivors.

Skokie (ultimately unsuccessfully) sought an injunction to stop the parade; in the meantime, they passed an ordinance with three requirements. First, the Nazis would have to purchase $350,000 worth of insurance for liability and property damage coverage. Second, the Village prohibited parading in “military” style uniforms. Third, Skokie banned the distribution of materials “which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so.”

Colin and the NSPA sued, and the case then followed a winding path through state and federal courts. Initially, Illinois courts refused to overturn a local court decision siding with Skokie; on appeal to the United States Supreme Court, the Court remanded the decision, holding that the Illinois Supreme Court must stay the injunction and grapple with the First Amendment implications of the case. With this admonition in view, both the Illinois Supreme Court and then the Seventh Circuit Court of Appeals ruled in favor of the Nazis (the Supreme Court declined to hear a further appeal).

The ILSC and the Seventh Circuit used fairly similar logic in deciding that the Nazi parade and potential dissemination of “hate materials” were protected speech that did not meet the criteria for fighting words. The excerpt from the Seventh Circuit demonstrates the reasoning employed.

Collin v. Smith

578 F.2d 1197 (7th Cir. 1978)

Facts: As part of a plan to gain media attention and leverage a future permit for a march in Chicago, the Nazi party applied for permits in several suburban communities; only Skokie, a Chicago suburb with a large Jewish population as well as a smaller sub-population of Holocaust survivors, responded to their request.

In response to the impending parade, Skokie both sought an injunction to stop the parade as well as passed an ordinance that required the party to purchase insurance prior to the assembly and both banned the use of military-style uniforms and the distribution of hate literature.

Question: Did Skokie’s ordinance violate the First Amendment’s free speech clause?

Vote: Yes, 2-1

Majority opinion: Judge Pell

Concurring opinion: Judge Wood

Concurring and dissenting opinion: Judge Sprecher

PELL, Circuit Judge.

Plaintiff-appellee, the National Socialist Party of America (NSPA) is a political group described by its leader, plaintiff-appellee Frank Collin, as a Nazi party. Among NSPA’s more controversial and generally unacceptable beliefs are that black persons are biologically inferior to white persons, and should be expatriated to Africa as soon as possible; that American Jews have “inordinate … political and financial power” in the world and are “in the forefront of the international Communist revolution.” NSPA members affect a uniform reminiscent of those worn by members of the German Nazi Party during the Third Reich, and display a swastika thereon and on a red, white, and black flag they frequently carry.

The Village of Skokie, Illinois, a defendant-appellant, is a suburb north of Chicago. It has a large Jewish population, including as many as several thousand survivors of the Nazi holocaust in Europe before and during World War II. Other defendants-appellants are Village officials.

… On May 2, 1977, the Village enacted three ordinances to prohibit demonstrations such as the one Collin and NSPA had threatened. This lawsuit seeks declaratory and injunctive relief against enforcement of the ordinances…

Collin and NSPA applied for a permit to march on July 4, 1977, which was denied… The permit application stated that the march would last about a half hour, and would involve 30 to 50 demonstrators wearing uniforms including swastikas and carrying a party banner with a swastika and placards with statements thereon such as “White Free Speech,” “Free Speech for the White Man,” and “Free Speech for White America.” A single file sidewalk march that would not disrupt traffic was proposed, without speeches or the distribution of handbills or literature. Counsel for the Village advises us that the Village does not maintain that Collin and NSPA will behave other than as described in the permit application(s)…

On its appeal, the Village concedes the invalidity of the insurance requirements as applied to these plaintiffs and of the uniform prohibition…

The conflict underlying this litigation has commanded substantial public attention, and engendered considerable and understandable emotion. We would hopefully surprise no one by confessing personal views that NSPA’s beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, to much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators…

We cannot then be unmindful of the horrors associated with the Nazi regime of the Third Reich, with which to some real and apparently intentional degree appellees associate themselves. Nor does the record allow us to ignore the certainty that appellees know full well that, in light of their views and the historical associations they would bring with them to Skokie, many people would find their demonstration extremely mentally and emotionally disturbing, or the suspicion that such a result may be relished by appellees.

But our task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich…

… we are unable to deny that the activities in which the appellees wish to engage are within the ambit of the First Amendment.

These activities involve the “cognate rights” of free speech and free assembly. “(T)he wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment.” Standing alone, at least, it is ”closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.” The same thing can be said of NSPA’s intended display of a party flag, and of the messages intended for the placards party members would carry. Likewise, although marching, parading, and picketing, because they involve conduct implicating significant interests in maintaining public order, are less protected than pure speech, they are nonetheless subject to significant First Amendment protection. Indeed, an orderly and peaceful demonstration, with placards, in the vicinity of a seat of government, is “an exercise of (the) basic constitutional rights of (speech, assembly, and petition) in their most pristine and classic form.”

No doubt, the Nazi demonstration could be subjected to reasonable regulation of its time, place, and manner. Although much of the permit system … is of that nature, the provisions attacked here are not… Because the ordinances turn on the content of the demonstration, they are necessarily not time, place, or manner regulations…

(A)bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

… The ordinance cannot be sustained on the basis of some of the more obvious exceptions to the rule against content control. While some would no doubt be willing to label appellees’ views and symbols obscene, the constitutional rule that obscenity is unprotected applies only to material with erotic content, Cohen v. California. Furthermore, although the Village introduced evidence in the district court tending to prove that some individuals, at least, might have difficulty restraining their reactions to the Nazi demonstration, the Village tells us that it does not rely on a fear of responsive violence to justify the ordinance, and does not even suggest that there will be any physical violence if the march is held…

… it is said that the content criminalized by [the ordinance] is “totally lacking in social content,” and that it consists of “false statements of fact” in which there is “no constitutional value.” We disagree that, if applied to the proposed demonstration, the ordinance can be said to be limited to “statements of fact,” false or otherwise. No handbills are to be distributed; no speeches are planned. To the degree that the symbols in question can be said to assert anything specific, it must be the Nazi ideology, which cannot be treated as a mere false “fact.” …

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas…. The asserted falseness of Nazi dogma, and, indeed, its general repudiation, simply do not justify its suppression.

… The Village’s fourth argument is that the Nazi march, involving as it does the display of uniforms and swastikas, will create a substantive evil that it has a right to prohibit: the infliction of psychic trauma on resident holocaust survivors and other Jewish residents. The Village points out that Illinois recognizes the “new tort” of intentional infliction of severe emotional distress, the coverage of which may well include personally directed racial slurs…

It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the Village’s residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that “invite(s) dispute … induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Yet these are among the “high purposes” of the First Amendment. It is perfectly clear that a state may not “make criminal the peaceful expression of unpopular views.” Likewise, “mere public intolerance or animosity cannot be the basis for abridgement of these constitutional freedoms.” …

It is said that the proposed march is not speech, or even “speech plus,” but rather an invasion, intensely menacing no matter how peacefully conducted. The Village’s expert psychiatric witness, in fact, testified that the effect of the march would be much the same regardless of whether uniforms and swastikas were displayed, due to the intrusion of self-proclaimed Nazis into what he characterized as predominately Jewish “turf.” There is room under the First Amendment for the government to protect targeted listeners from offensive speech, but only when the speaker intrudes on the privacy of the home, or a captive audience cannot practically avoid exposure…

This case does not involve intrusion into people’s homes. There need be no captive audience, as Village residents may, if they wish, simply avoid the Village Hall for thirty minutes on a Sunday afternoon, which no doubt would be their normal course of conduct on a day when the Village Hall was not open in the regular course of business. Absent such intrusion or captivity, there is no justifiable substantial privacy interest to save [the ordinance] from constitutional infirmity, when it attempts, by fiat, to declare the entire Village, at all times, a privacy zone that may be sanitized from the offensiveness of Nazi ideology and symbols…

The preparation and issuance of this opinion has not been an easy task, or one which we have relished. Recognizing the implication that often seems to follow over-protestation, we nevertheless feel compelled once again to express our repugnance at the doctrines which the appellees desire to profess publicly. Indeed, it is a source of extreme regret that after several thousand years of attempting to strengthen the often thin coating of civilization with which humankind has attempted to hide brutal animal-like instincts, there would still be those who would resort to hatred and vilification of fellow human beings because of their racial background or their religious beliefs, or for that matter, because of any reason at all…

Although we would have thought it unnecessary to say so, it apparently deserves emphasis in the light of the dissent’s reference to this court apologizing as to the result, that our Regret at the use appellees plan to make of their rights is not in any sense an Apology for upholding the First Amendment. The result we have reached is dictated by the fundamental proposition that if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises.

HARLINGTON WOOD, Jr., Circuit Judge, concurring.

Agreeing with Judge Pell’s analysis of the law, I join in affirming the judgment of the district court and add only a few footnotes.

… Since there is ample warning of the proposed event, this situation is not equivalent to the sudden and unfounded cry of “fire” in a crowded and unsuspecting theatre to which it is sometimes analogized.

Recognition of the full scope of freedom of speech does not compel anyone to listen, or if listening to believe.

It may also be well to remember that often “words die away, and flow off like water leaving no taste, no color, no smell, not a trace.” Any exception, however, to the First Amendment which we might be tempted to fashion for these particular persuasive circumstances would not “die away.” It would remain a dangerous and unmanageable precedent in our free and open society.

SPRECHER, Circuit Judge, concurring in part and dissenting in part.

… Seldom before has a federal court been faced with a situation raising such powerful cross-pressures as have been created in this case… There may very well be a necessity for a new balancing of values in these circumstances as opposed to the immediate governmental paralysis.

… We must first examine whether plaintiffs’ proposed conduct falls within the scope of the First Amendment. We are dealing with a proposed march through a predominantly Jewish community. The plaintiffs would wear Nazi-style uniforms and swastika armbands or emblems and carry written signs. No speeches were to be made. Plaintiffs’ handbills had been distributed in the Village and a number of Skokie residents with Jewish surnames had received offensive and threatening telephone calls. The portent of this action and the proposed march could not be lost on anyone familiar with the methods of Hitler’s Nazis in Germany.

Under these circumstances, the appearance of plaintiffs’ group in Skokie may be so extremely offensive and of such little social utility as to be beyond the protection of the First Amendment. In this sense the present case does not differ greatly from Chaplinsky v. New Hampshire, (1942), where the Court upheld the conviction of a Jehovah’s Witness for calling complainant a “God damned racketeer” and “a damned fascist.” …

It appears to me that plaintiffs’ proposed activities, under the circumstances presented here, might reasonably be viewed as not within the area of constitutionally protected activity. At least the question seems close enough to warrant serious concern and analysis within the factual situation presented. Plaintiffs’ proposed actions in this case arguably “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” …

There is no dispute that speech may not be suppressed merely because it offends its listeners. Cohen v. California (1971). At some point, however, considerations of a neutral desire to maintain the public peace and general welfare come into play in determining whether activities should be allowed. Where the activity is, as here, by its nature and by the circumstances, a threat to a reasonable attempt to maintain the public order, it cannot claim to go unregulated under the auspices that content may not properly be considered…

For the reasons discussed above, I would reverse the decision of the district court declaring the insurance requirement of the ordinance unconstitutional.