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The First and Fourteenth Amendment, and Constitutional Challenges to Hate Crime Laws

Presentation for Hate Crimes class, Winter 2011
by

Matt Fritz-Mauer

on 2 March 2011

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Transcript of The First and Fourteenth Amendment, and Constitutional Challenges to Hate Crime Laws

The First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. But what does this really mean? Our right to free speech isn't absolute In fact, the Supreme Court has limited free speech 1. Chaplinsky vs. New Hampshire - 1942 2. Beauharnais v. Illinois -1952 Chaplinsky, a Jehovah's Witness, was told by a
a city marshall to "go slow" with his proselytizing.
After calling the marshall a "god damned racketeer" and
"a damned fascist," Chaplinsky was convicted under a statute
that forbade insulting people.

The Supreme Court upheld this conviction, reasoning that
certain "fighting words" serve "such slight social value" that
their censorship is okay. Joseph Beauharnais was the President of the
"White Circle League of America," and
widely distributed racist material in an attempt
to halt integration.

The Supreme Court upheld
his conviction, equating his claims to "group libel" and citing a
danger of race riots. "Fighting Words" Clarified In Cohen v. California (1971), the Supreme Court
determined that fighting words had to be
specifically directed towards another person While "fuck" is an offensive word,
in Cohen's case it also had
expressive value. "Fighting Words" Clarified In 1978, the American Nazi party planned to hold rallies in and
around Chicago. To prevent this, the village of Skokie passed an
ordinance requiring the Nazis to obtain a $330,000 insurance policy.
With the help of the ACLU,the Nazis went to court to
assert their First Amendment rights. The Court ruled that Nazi symbols and
their implied beliefs did not constitute
"fighting words," since no face-to-face
confrontations were planned. Constitutional Bases for Hate Crime Law The First and Fourteenth Amendments It's easy to sympathize with the
Jews of Skokie. Our natural disgust
with Naziism is directly at odds with
our desire to extend basic rights to
everybody. What do you think?
Should the Nazis have been
allowed to rally in Skokie? “The debate over these laws is occurring not merely between traditional allies, but between one side and itself. Moreover, when either viewpoint prevails, whether in the legislature, the courts, or even in a purely academic argument, its proponents do not seem to be very happy about it. They can see very well their opponents’ point of view, and in fact largely agree with it. It is as if everyone involved in the debate over the permissibility and desirability of ethnic intimidation laws were actually on both sides at once” (1991: 334). -Susan Gellman R.A.V. vs. City of St. Paul (1992) R.A.V. and friends burned a cross
on the lawn of a black family In return, he was charged with
violating a statute that made it a crime to place “on public or private property a symbol, object, appellation, characterization, or graffiti that arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The Supreme Court declared St. Paul's law unconstitutional, as it
prohibited only some fighting words, and not others. "Those who wish to use "fighting words" in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects" The Court ruled that this statute violated the First Amendment, as it punished peoples' expression of their views on a certain subject, and that St. Paul “has no authority to license one side of the debate to fight freestyle,” yet impose rules on the other. The R.A.V. case was by no means the last
challenge to a hate crime law... Five types of challenges:
1. Punishment of Speech
2. Overbreadth
3. Content Discrimination
4. Equal Protection
5. Vagueness Punishment of speech - Hate crimes punish
speech, rather than action. The rationale is this: if the underlying offense
is already a crime, then the enhanced penalties must
be punishing bias-motivation. Is this punishing our
private thoughts and feelings? Could lead to a "chilling effect" The courts have determined that hate crime statutes punish
MOTIVE, not speech. Motive is, and always has been, an acceptable
consideration in punishment. Think about all of the different
kinds of homicide we have. Since hate crime laws emerged, people have been concerned about their constitutionality. Legislators, civil libertarians, constitutional scholars, academics and judges have all asked whether these laws are constitutionally permissible or not.

We can understand these concerns by examining the 1st and 14th Amendments. The Fourteenth Amendment 1) Citizenship Clause, which states that "all persons born
or naturalized within the United States" are citizens.

2) Due Process Clause, which states that nobody shall
be deprived of "life, liberty, or property" without due
process.

3) Equal Protection Clause, which requires each state
to provide equal protection under the law to all people
in that state's jurisdiction. Overbreadth challenges claim that
hate crime legislation is too broad, and
punishes forms of legitimate expression
- as in the case of Wisconsin v.
Mitchell (1993). In 1993, Todd Mitchell and some friends were drinking and discussing "Mississippi Burning" when they spotted a 14 year old boy across the street.

Shouting "You all want to fuck somebody up? There goes a white boy; go get him," Mitchell
and his friends beat the boy for over 5 minutes, hospitalizing him. Mitchell appealed his conviction, claiming that
the statute which convicted him was overbroad
and violated his First Amendment rights.

The Supreme Court disagreed, finding that
the statute punished violence, not expression,
and that it was not overbroad. The 14th Amendment has three clauses
which are relevant to us today: In its entirety, the 1st Amendment reads: Claims of "content discrimination" assert that hate crime
laws unfairly regulate speech based on the topic. Fighting words are already regulated,
so the state can't extra-regulate specific
kinds of fighting words. Why is insulting somebody's mother
not as bad as insulting somebody's race? Prepared for C127: Hate Crimes Winter 2011 By Matthew Fritz-Mauer Those who believe hate crime laws violate
the 14th Amendment right to equal
protection under the law state that certain
groups are being given preferential treatment. Claims of vagueness assert that
hate crime laws are so nebulous, so
unclear, that the average person will
not be able to understand them. Is it really fair to punish me for
breaking a law that I can't
possibly understand? "No person, whether or not under color of law, shall by force
or threat of force, willfully injure, intimidate, interfere with,
oppress, or threaten any other person in the free exercise
or enjoyment of any right or privilege secured to him or her
by the Constitution or the laws of the United States because
of the other person’s race, color, religion, ancestry, national
origin, disability, gender, or sexual orientation, or because he or she
perceives that the other person has one or more of these
characteristics.” The Future of Hate Crime
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