Oklahoma Bar Journal
By Rick Tepker
The First Amendment is an idea resting on an old, familiar faith. As expressed by James Madison, “Knowledge will forever govern ignorance.”1 Indeed, “A people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.” The First Amendment reflects the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”2 The First Amendment demands a tolerance of “verbal tumult, discord, and even offensive utterance,” as “necessary side effects of … the process of open debate.”3
America is a culture that is more committed to tolerance of extremist speech than any other in the history of the world. And many citizens do not understand why bigotry, hate, threatening rhetoric, racism, misogyny, homophobia, xenophobia and other “thoughts we hate” deserve any respect, much less constitutional protection.
But we, the people, learn – slowly, at times – from “extremist” speech, even hate speech. We can sense anger and frustration among the disaffected and marginalized. We can perceive threats of impending violence. Hopefully, we can learn that bigotry and paranoia offer nothing that serves the welfare of the United States.
A (VERY) BRIEF HISTORY OF EVOLVING DOCTRINE
A comprehensive history of doctrine is impossible in a short article designed to discuss one continuing free expression problem, but history is an essential preface.
When resisting a bill of rights on the theory that it would do little good, Alexander Hamilton asked a question that courts were forced to answer, though it took a century and a half to begin the interpretive process. “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved?’ What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?”4 In brief, courts went through several stages of evolving law. First, judges deferred on a theory that free speech was not an exception to the principle of majority rule.5 Then, sensing the potential for executive, legislative and prosecutorial abuse, the courts struggled to develop manageable, enforceable principles to protect expressive liberty.6 Finally, the courts settled on a consensus approach that defined a categorical hostility to government discrimination against ideologies, philosophies and viewpoints.7
The first stage of deference is illustrated by Beauharnais v. Illinois.8 A black man had published a vehement denunciation of white culture and racism. Mr. Beauharnais’s remarks fell afoul of a state statute that banned words that “portray[ed] depravity, .. or lack of virtue of a class of citizens, or any race, color, creed or religion.” In short, as applied to this case, it was not nice to denounce or condemn white people, even for the sins of racism. It was also against the law. Truth was not a defense to this “group defamation.” The trial judge refused to allow the jury to consider historical facts tending to support the defendant’s views. The judge also declined to narrow the sweep of the statute; he refused to instruct the jury that the jury must find that the publication “was likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest.” The defendant was convicted. In the great American tradition, he took his case to the U.S. Supreme Court, which split along ideological, methodological and personal lines. Justice Felix Frankfurter, in the opinion of the court holds, Beauharnais’ rants fell into the category of unprotected “group defamation.”
In the face of … extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact.9
The opinion was dominated by Frankfurter’s conviction that the judicial duty was to defer, defer, defer – unless there was no other choice. “[I]t would be out-of-bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation.”10
Justice Black, dissenting, upheld a libertarian view of the First Amendment. His analysis better reflects the attitudes of the federal judiciary – in a later era. Black saw the Illinois law as vindicating an expansive censorship. The publication was not directed as personal insults addressed to an individual; they were not “fighting words.” Justice Black of Alabama, a former member of the Ku Klux Klan, must have drawn on his knowledge of history – and hate speech – to remind fellow countrymen:
I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. … I think the First Amendment, with the Fourteenth, “absolutely” forbids such laws without any “ifs” or “buts” or “whereases.” Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. … If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark: “Another such victory and I am undone.”11
Later, a consensus approach emerged as doctrine in such cases as New York Times v. Sullivan,12 Brandenburg v. Ohio13 and Cohen v. California.14 Together these cases taught lessons summarized well by Dean John Hart Ely:
If ... history ... teaches us anything, it is that attempts to evaluate the threat posed by the communication of an alien view inevitably become involved with the ideological predispositions of those doing the evaluating, and certainly with the relative confidence or paranoia of the age. If the First Amendment is even to begin to serve its central function of assuring an open political dialogue and process, we must seek to minimize assessment of the dangerousness of the various messages people want to communicate. [When] state officials seek to silence a message because they think it’s dangerous, ...we insist that the message fall within some clearly and narrowly bounded category of expression we have designated in advance as unentitled to protection.15
One issue that remained was whether something called “hate speech” would be added to the list of categories unprotected by free speech principles.
After years of evolving doctrine, Justice Antonin Scalia wrote an opinion of the court in the most important case discussing “hate speech”: R.A.V. v. City of St. Paul.16 A city ordinance prohibited the display of a burning cross, a Nazi swastika and any other symbol which would “arouse anger, alarm or resentment … on the basis of race, color, creed, religion or gender.” A state Supreme Court opinion offered an authoritative interpretation that the ordinance was confined to the unprotected category of “fighting words.” So, despite the apparent meaning of the ordinance’s text, the state law punished use of fighting words that used racially inflammatory words as the vehicle for provoking violent retaliation. The ordinance could not be constitutionally overbroad: it was confined to the unprotected category of fighting words. But the ordinance punished some fighting words – not all. And the standards used to distinguish between punishable fighting words and unregulated fighting words were problematic.
Justice Scalia’s analysis was detailed, extended, complicated and – regrettably – professorial. It was – and is – a “tough read,” quite unlike Justice Scalia’s best writing (usually in dissenting opinions). The issue was whether government may use constitutionally-suspect, content-based or viewpoint-based standards for underinclusive regulation of otherwise unprotected expression. The majority answered the question in the negative.
Why? “[T]he ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”17 By punishing racially inflammatory “fighting words,” the ordinance becomes a censorship of racial talk. Governments may ban only most patently offensive obscenity, but it may not ban only obscenity in just democrat publications, or just republican publications, or just “alt-right” publications. Governments may ban particularly important threats (e.g., against the president), but it may not ban only threats for policy-related motives (e.g., a president’s position on inner cities, war, etc.). The court sought to protect federal law against sexual harassment, described by Justice Scalia as “sexually derogatory ‘fighting words.’”18
In sum, what was wrong with the St. Paul ordinance? First, in “its practical operation … the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.” Second, the ordinance had the effect, and perhaps the purpose, of rigging political discourse. “St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.”19
Justice Stevens thought Justice Scalia’s explanations and hypotheticals were a journey through a “doctrinal wonderland.” Like Justice Frankfurter, Justice Stevens resists categorical approaches and formal rules. They sacrifice “subtlety for clarity.”20 He argued the First Amendment allows some careful regulation.21
R.A.V. holds that hate speech is not a category of unprotected expression. But the First Amendment does not bar carefully crafted, narrowly tailored statutes that target hateful words that are also incitement to lawless action, fighting words designed to provoke brawls and lawless retaliation or threats. One illustrative case,Virginia v. Black,22 seems designed to confuse the average citizen with common sense. R.A.V. struck down an ordinance punishing cross burning but in Black, the court indicated that state statutes against cross burning were perfectly acceptable if narrowly tailored to ban only “true threats,” a category of unprotected expression.
The case involved two cross-burning cases. In one, a cross was burned at a KKK rally. In a second case, a cross was burned at the private home of a family that had complained about a neighbor’s firing guns in the residential area. Both cases resulted in convictions of all defendants. Virginia’s statute read, in part:
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.
The court’s analysis of the “hate speech” issues serve to clarify R.A.V. The issue was whether the First Amendment prevents a state from punishing the burning of a cross with intent to intimidate. The answer was “no.” Justice O’Connor explained that a state may ban “true threats,” which are “statements designed to communicate an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia may “outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.” So far so good, according to the court’s opinion. But the Virginia statute included an additional provision, “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” This feature violated due process, it improperly shifted the burden of proof from the state’s duty to prove guilt to a defendant’s duty to disprove guilty intent. The law all but required defendants to testify and to persuade a jury that the accused had no intent to intimidate.
Justice O’Connor and Justice Scalia seemed to agree that a ban on burning crosses with a proven intent to intimidate was “fully consistent with our holding in R.A.V.”23 The Virginia statute did not single out speech directed toward “specified disfavored topics.” Justice Thomas dissented, but underscored his own view that Virginia’s “statute prohibits only conduct, not expression.”24 The threat of violence – and the violence of the act of threatening – is the focus of the statute; not ideology or viewpoint.25
‘GOOD COUNSELS’ AND OTHER REMEDIES FOR THE THOUGHTS WE HATE
When rigorous principles of free thought and expressive liberty are to be applied to protect thoughts and messages of hate – bigotry, misogyny, racism, xenophobia, anti-Semitism and other religious bias, homophobia and the like – the case for tolerance and expressive liberty must allow some remedy. What is to be done to resist the many hatreds of humanity?
The answer for bad speech is more speech, better speech, speech calling on the “better angels of our nature.”26 The logic leads to the conclusion that the “fitting remedy for evil counsels is good ones.”27 Of course, much more needs to be done.
Again, the immense difference between speech and conduct is the key. Viewpoints and opinions are protected; discriminatory conduct is not. The need for a remedy and also for care in formulation of a remedy is illustrated by revised Rule 8.4(g) of the American Bar Association Model Rules of Professional Conduct. The new rule focuses on “conduct that … is harassment or discrimination.” Specifically, the revised Model Rule 8.4 now reads:
It is professional misconduct for a lawyer to:
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.28
Sanctions for discriminatory conduct by lawyers would seem to pose as little danger to expressive liberty as ordinary anti-discrimination statutes that apply to schools, workplaces and retail enterprises. Nevertheless, the proposed revision provoked criticism. For example, the attorney general of Texas issued an opinion letter concluding: “A court would likely conclude that Model Rule 8.4(g) infringes upon the free speech rights of members of the State Bar.”29 But this opinion rests on speculation. The Texas attorney general suggested that a lawyer at a bar meeting on police use of excessive force could be sanctioned for “saying ‘Blue lives [i.e., police] matter’ and we should be more concerned about black-on-black crime.”30 He assumed that the rule would result in sanctions of “candid dialogues about illegal immigration, same-sex marriage, or restrictions on bathroom usage.” The opinion letter offers little to explain how the text of the new rule would allow state bar authorities to impose sanctions for mere expression of opinion. It is difficult to see how candid talk could be deemed to be “conduct that … is harassment or discrimination.” Also, the rule includes a scienter requirement. The rule focuses only on misconduct “that the lawyer knows or reasonably should know is harassment or discrimination.” Comment 331 also seems to prevent overbroad or intrusive interpretations by specifying that “the substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).” In sum, the rule’s text does not contain even a hint of potential for ideological regimentation by state bar authorities. If the rule was – somehow – misinterpreted, there is little to suggest that federal courts would approve.
In sum, a dominant consensus supports a libertarian theory of expressive liberty. Existing doctrine developed over the past half-century stands in the way of overzealous regulation. Our law protects the thoughts we hate,32 including thoughts of hate.
ABOUT THE AUTHOR
Rick Tepker is the Calvert chair of law and liberty at OU, where he has taught constitutional law since 1981. He is a 1976 graduate of the Duke University School of Law.
1. James Madison, Letter to W.T. Barry, (Aug. 4, 1822).
2. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
3. Cohen v. California, 403 U.S. 15, 24-25 (1971).
4. The Federalist, Essay No. 84.
5. See, Dennis v. United States, 341 U.S. 494 (1951) and Gitlow v. New York 268 U.S. 652 (1925).
6. See, Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).
7. See, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Brandenburg v. Ohio, 395 U.S. 444 (1969); Cohen v. California, 403 U.S. 15, 24-25 (1971).
8. 343 U.S. 250 (1952).
9. 343 U.S. at 261.
10. 343 U.S. at 262.
11. 343 U.S. 274-75.
12. U.S. 254, 270 (1964).
13. 395 U.S. 444 (1969).
14. 403 U.S. 15, 24-25 (1971).
15. John Hart Ely, Democracy and Distrust 112 (1980).
16. 505 U.S. 377 (1992).
17. 505 U.S. at 381.
18. 505 U.S. at 389. See also, Harris v. Forklift Systems Inc., 510 U.S. 17 (1993) (upholding EEOC definition of sexual harassment); Mer-itor Savings Bank v. Vinson, 477 U.S. 57 (1986) (same).
19. 505 U.S. at 392.
20. 505 U.S. at 426 (Stevens, J., concurring).
21. “Conduct that creates special risks or causes special harms may be prohibited by special rules. … Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules.” 505 U.S. at 416 (Stevens, J., concurring).
22. 538 U.S. 343 (2003).
23. 538 U.S. at 361-62, 368.
24. 538 U.S. at 394 (Thomas, J., dissenting) (“even segregationists understood the difference between intimidating and terroristic conduct and racist expression.”).
25. See also, Wisconsin v. Mitchell, 508 U.S. 476 (1993) (Rehnquist, C.J. for a unanimous court) (holding that criminal statutes imposing enhanced punishment for prohibited conduct motivated by discriminatory animus do not violate the First Amendment).
26. Abraham Lincoln, First Inaugural Address (March 4, 1861).
27. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
28. See also, Peter Geraghty, ABA adopts new anti-discrimination Rule 8.4(g) (September 2016) [www.americanbar.org/publications/youraba/2016/september-2016/aba-adopts-anti-discrimination-rule-8-4-g--at-annual-meeting-in-.html].
29. Letter from Ken Paxton, Attorney General of Texas to Senator Charles Perry (Dec. 20, 2016). See also, Letter from Edwin Meese III and Kelly Shackelford to Patricia Lee Renfro (Aug. 5, 2016).
30. General Paxton is relying on an example from Ronald D. Rotunda, The ABA Decision to Control What Lawyers Say: Supporting “Diversity” But Not Diversity of Thought, The Heritage Foundation Legal Memorandum 4 (2016).
31. Comment 3 states:
Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).
32. United States v. Schwimmer 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).
Originally published in the Oklahoma Bar Journal - OBJ 88 pg 943 (May 20, 2017)