Friday, November 19, 2010

Should Hate Speech be Protected Under 1st Amendment?

By Eugene Volokh

Newsday reports:
A group of teens spotted Sunday evening slapping up stickers along a Bellmore street [including on a lamp post and a Chamber of Commerce sign] could be charged with felonies for posting white supremacist messages and images ....

One sticker, photographed and removed by police, reads “White Pride World Wide.” Another says “Don’t Blame Me, I Voted for Hitler.”

A third shows a hand making an obscene gesture over a Star of David....

Whoever posted it could be charged under a state law prohibiting the posting of images of swastikas or nooses. The first-degree harassment charge carries a maximum sentence of 1 year in jail....

Putting stickers on lampposts and other signs might well be illegal, and could be punished under content-neutral laws or city ordinances prohibiting such attachment of stickers to city property or to other people’s property. Likewise, targeting property owners for property crimes based on the owners’ race, religion, and the like might lead to enhanced punishments.

But the police theory here seems to be that the speech is punishable precisely because of the message that it conveys; the relevant statute is apparently N.Y. Penal Law § 240.31:
A person is guilty of aggravated harassment in the first degree [, a felony,] when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she: ...

3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; [or]

5. Etches, paints, draws upon or otherwise places or displays a noose, commonly exhibited as a symbol of racism and intimidation, on any building or other real property, public or private, ... without express permission of the owner or operator of such building or real property.

Such a content-based speech restriction violates the First Amendment. There is no “hate speech” exception to the First Amendment, and while “true threats” may be legally punishable, the law is not limited to such threats. (The “true threats” exception covers a fairly narrow category of speech, and a good deal of menacing speech does not fall within that exception, especially when it isn’t individually targeted to a particular person.) Moreover, even when speech can be restricted because it is, for instance, a form of trespass on others’ property, it cannot be restricted because of its content and viewpoint.

The teenagers posting these messages are behaving evilly, but even evil people and evil ideas are protected by the First Amendment. I do hope that the New York prosecutors and police recognize the First Amendment barriers to prosecutions under this statute.

Source. (See the original for links)

11 comments:

Anonymous said...

Until the people are willing to elect legislators who will change such laws or bring suit against these unconstitutional misuses of law, this will continue and it will only get worse.

And if you think it's bad now? Just wait until Sharia Law takes hold.

-sig

Stan B said...

This sounds like a job for the ACLU!

Terrapod said...

Mmmh! If I call you a fat bastard, and you happen to be a fat bastard, bit consider that hate speech, who is to decide what is hate speecha and what is not, eh? An impartial judge would look at you and say, man speaks truth. A PC weenie libtard would start screaming that it is hate speech. Now if the libtard were a judge, where does that leave the public? Speaking the truth to one who does not want to hear it can be deemed "hate speech". So no, there is no such thing as "hate speech" there is only a persons opinion or thought on a given subject and it is the persons right to state it and then to defend it based on his own moral grounds. If others do not want to listen, no one is forcing them to, unless that happens to be a group with power, weapons or some other means of coersion. Laws to define hate speech are unconstitutional. Say what you will and live with the consequences, but it is not for the courts nor the government to decide.

Anonymous said...

We all know, or should know, that these phony hate crime laws were "invented" to protect certain privileged groups, such as blacks and gays. (a.k.a. Democrat voters) These laws are in fact a form of discrimination since those special groups enjoy protections above and beyond those available to the rest of us. (ie.Equal protection under the law?)

Also, in the Peoples Republic of NY, there are more laws, rules, and regulations than there are people, all of which having been made by lying, corrupt politicians and enforced by equally corrupt, leftist judges. But it doesn't mean those laws are legal. Only a trip to the SCOTUS will determine that, assuming you can afford to go that far, and 95% of us can't, which is why those laws stand.

Bobby said...

"We all know, or should know, that these phony hate crime laws were "invented" to protect certain privileged groups, such as blacks and gays. (a.k.a. Democrat voters)

---I think you're wrong about gays:


"Thirty-one percent of self-identified gay voters cast their ballots for Republicans on Tuesday, 4 percentage points more than in 2008, according to a similar CNN exit poll."

Read more: http://www.politico.com/news/stories/1110/44743.html#ixzz15hozFY00

Anonymous said...

Clearly the acts are silly but I agree with Jon, content-based discrimination is simply discrimination.
I also agree about the lack of equal protection Anon 4:55
My issue is more about the harrassment issue. There must be an intent to harrass/annoy/threaten or alarm. Is a mere call to like-minded people capable of supporting such intent? If I say 'everyone who hates people with moustaches is awesome' is that harrassment of people with mustaches or is it merely a rallying call to mustachophobes?

Anonymous said...

the speech should be legal, anyone acting on that speech by harming people should be punished for that harm done.

There's a thin line when the speech itself causes harm of course, like someone loosing their job because he got put on a pedophile list by some vigilante.

Anon 4:55 said...

Bobby said:
"I think you're wrong about gays:"

First of all, 31% is not any kind of a majority. Also, are you saying that so-called hate-crime laws were not intended to protect gays? (a fact everyone is aware of)

Anonymous said...

Why shouldn't gays be protected from random attacks by thugs who see them as easy targets because society views them so negatively? Likewise other minorities. If a member or members of a "majority" group can demonstrate that they were attacked or intimidated simply because of their perceived majority status, they would also be entitled to the same protection under the same laws, as such group protections are not specific to gays or any other specific group, as you well know if you were not bigoted against gays!

Anonymous said...

Why shouldn't gays be protected from random attacks by thugs who see them as easy targets because society views them so negatively?

Because it sets up classes of people that are not equal or more equal than other people.

That ol' pesky 14th Amendment thing.

Bobby said...

"First of all, 31% is not any kind of a majority."

---No, but it's a significant number. You know waht percentage of blacks vote republican? Less then 10%, and this is in spite of all the black asses the GOP kisses daily. If 50% of gays had voted republican maybe McCain would have won.

"Also, are you saying that so-called hate-crime laws were not intended to protect gays? (a fact everyone is aware of)"

---No, I did not say that. Although at first the hate crime laws were only about race and religion, then it was expanded to gays.

If the GOP had any courage they would oppose ALL hate crime laws, instead they only oppose it for groups they don't like, such as gays.