In that cast the Supreme Court struck down an extremely overly broad law which would have allowed for the prosecution of people for putting hate symbols on even their own property, for example having a Nazi uniform in their basement.
To show I’m not exaggerating here’s the text of the law that the Supreme Court justly struck down 9-0.
(bolding mine)
The Court made it clear that burning a cross in someone else’s yard was most certainly not Constitutionally protected speech and pointing that St. Paul didn’t need this particular bias ordinance to prosecute such conduct.
It should be noted the youths in question where convicted of both the bias ordinance and other crimes related to burning the cross and the Court only struck down the bias ordinance because it was far too over broad.
The Court closed by declaring.
(bolding mine).
In fact there have been numerous cases since then of people being arrested and prosecuted for things like vandalizing black churches, Jewish cemeteries and burning crosses on black families lawns without the men prosecuted being exonerated due to the First Amendment.
Edit: I realize that my use of the phrase “misrepresenting” could be seen as implying that Wolfpup is lying. That wasn’t my intent. He’s just ignoring what the Court actually said and why it ruled the way it did.
Sure. And if the line is moved back far enough, he no longer has the latitude to threaten, intimidate, and disrupt beyond the reasonable bounds of tolerance of a civilized society with any respect for decency. My contention is that this can be done without impinging on the core principles of free speech.
Phelps had little or nothing to do with the decades-long movement for gay rights. If anything, he may have had more to do with increased empathy for fallen soldiers whose families he was harassing. Tolerating this kind of behavior goes beyond all bounds of decency and serves no legitimate interest, and moreover, it more often does serve the intended purpose, as in the southern anti-segregation movements and European anti-Semitic pogroms.
It happened … multiple times. Two notable cases come to mind:
[ul]
[li]R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States. A unanimous Court struck down St. Paul, Minnesota’s Bias-Motivated Crime Ordinance, and in doing so overturned the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African American family. (Ref)[/li][/ul]
[ul]
[li]Virginia v. Black, 538 U.S. 343 (2003), was a First Amendment case decided in the Supreme Court of the United States. Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In this case, the Court struck down that statute to the extent that it considered cross burning as prima facie evidence of intent to intimidate. Such a provision, the Court argued, blurs the distinction between proscribable “threats of intimidation” and the Ku Klux Klan’s protected “messages of shared ideology.” [Emphasis mine.] (Ref)[/li][/ul]
Have to say first of all that I was composing my post before I saw what Ibn Warraq had posted, just to explain the sequence.
In other words, as they even more vehemently declared in Virginia v. Black, they were refusing to acknowledge that a balance of First Amendment rights with reasonable restrictions thereof is ever justifiable. That is precisely the absolutism that I’m describing. Eleven years later, Virginia v. Black took it even further, endowing the KKK with some kind of protected historical legacy of burning crosses.
So what? Nothing to do with the topic.
No problem, and no offense taken, except that I’m not actually “ignoring” anything. I simply maintain that both those rulings support a rather breathtaking license for anyone to say or do whatever the hell they want under the license of “freedom of expression”, with a mechanistically absolute disregard for consequences and the best interests of society.
Wow!! I would have responded sooner but I had not seen that.
I assume you’re referring to this discussion. If so, all the the things you’re claiming up there seem to me to be hugely inaccurate recollections of what was actually discussed.
Point by point:
[ul]
[li]The “endorsements for the slaughter of Jews” thing came from a trick question you tried to throw my way by quoting an ancient hadith that includes the phrase “here is a Jew behind me, (come and) kill him”. What I very explicitly replied to that was that “you’re trying to make the point that in Canada someone could get thrown in jail for practicing their religion. Nice try, but no. What you’re perhaps not understanding is that the threshold for something to qualify as hate speech is very high and its definition very specific, which is part of what I was trying to say above. And no, Islamic texts don’t qualify.” I don’t see how that response could possibly be more clear. By itself this is nothing more than a bit of old religious scripture and by itself clearly does not even remotely constitute “calling for genocide” under the hate speech laws.[/li][/ul]
[ul]
[li]You asked if I was in favor of refusing entry or arresting Mahmoud Abbas because he was a Holocaust Denier. I pointed out – again, I think pretty clearly – that while denying the Holocaust was explicitly a crime in some countries like Germany, AFAIK there is nothing about it in Canadian law. I also pointed out that Abbas “was quoted in conversation with an Israeli official as calling the Holocaust ‘the greatest atrocity in modern history’ so if he was once a denier it seems that he isn’t any more.” So, in summary, there may or may not be reasons that Abbas might not be welcome in Canada, but they are not any of the reasons you cite.[/li][/ul]
[ul]
[li]You claimed that I was “delighted with the prosecution of whites who engaged in Holocaust Denial while insisting that it would be outrageous to prosecute Arab political leaders who engaged in Holocaust denial”. No, Ernst Zundel, who I discussed earlier, was deported to Germany for advocating genocide and other hate crimes and for being judged a national security risk, not for being a Holocaust denier (although he was that, too). And I have no particular information or opinion about Mahmoud Abbas except that nothing you provided would be grounds for charging him with anything.[/li][/ul]
[ul]
[li]You claimed that I was “outraged that the US Supreme Court struck down a law mandating the prosecution of people for having Nazi flags in the privacy of their own homes.” I don’t recall discussing that, AFAIK you’re the only one who brought up the Nazi flag. I was, however, outraged by both the RAV v. St. Paul and even more by the Virginia v. Black rulings, for all the reasons I indicated in that discussion and in this one. I would also remind you that I corrected your impressions about RAV v. St. Paul, which was not struck down for the reason that “it was overly broad” – that’s just not a correct interpretation.[/li][/ul]
This all seems perfectly consistent to me. May I suggest that perhaps my arguments might appear to be more “intellectually consistent” and “well thought out” if you made an effort to remember them more accurately.
As I said earlier, most of my references to how hate speech laws might be formulated were based on the Canadian experience. There are other issues in Europe, and France in particular has been marginalizing and alienating many of its immigrant and Muslim populations. So yes, in that respect the US has done a better job of integrating those populations, but that has nothing whatever to do with the “lack of hate speech laws”. Canada, with its carefully limited hate speech laws, I would venture to say has probably done an even better job of integrating and accommodating those groups.
Regardless whether Phelps’s actions did more to promote sympathy for fallen soldiers or empathy for homosexuals, I have seen no evidence that his actions promoted further intolerant actions against homosexuals.
Permitting the law to silence one loud crank seems excessive. The “legitimate interest” in not prohibiting various expressions that are not direct threats is that society will not nudge the rule over to begin outlawing expressions that simply make a majority uncomfortable or that call attention to evil behavior in which the majority engages.
Did you, perhaps, miss the prima facie aspect of the ruling? In neither the Minnesota case nor the Virginia case did the courts rule that harassment was permitted. In the Virginia case, the majority opinion expressly indicated that actions undertaken as threats were not permitted.
As written, the Virginia law prohibited people from going out on their back forty and burning a cross even out of sight of their neighbors. The court said that went too far.
Can you cite where Phelps threatened or intimidated anyone? Because if he’d done either of those things, he’d have been arrested, and as you pointed out, he was very, very good at not going so far that the law could crack down on him.
It seems to me you’re trying to argue it both ways at the same time. If Phelps’ protests of dead soldier’s funerals increased sympathy for dead soldiers, why would the same effect not apply when he protested the funerals for Randy Shilts or Matthew Shepherd?
Also, as a member of a group whose actions were often circumscribed, sometimes quite brutally, by the government on the grounds that we were “beyond the bounds of all decency and served no legitimate purpose,” I’m not eager to hand the government that hammer again and hope that they only use it on people I don’t like this time.
Yeah, that’s a pretty bad representation of what happened in that case. The Supreme Court did not say it was legal to burn a cross on someone else’s lawn, they said it was illegal to ban burning crosses wholesale. Burning a cross on someone’s lawn will still get you nailed with all sorts of legal trouble, which was a key portion of the courts decision: “St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire,” as has been quoted once already in this thread. It is still illegal, in St. Paul, and in any other American city, to burn a cross on a neighbor’s lawn.
And again, this case did not find that burning a cross on someone’s lawn was a form of legally protected speech. They found that a law stating that burning a cross, under all circumstances, is read as an attempt to intimidate, to be too broad. They specifically said that someone could still be charged with intimidation for burning a cross, the state just had to prove an intent to intimidate. Which is perfectly sensible: if a bunch of Klansmen burn a cross on private land, where no one who isn’t a Klansman can see it, it’s hard to make an argument that it was an act of intimidation.
Not sure why you emphasized that one part about shared ideology. Is that meant to be particularly damning in some way?
:smack: Yeah, I know who the Ku Klux Klan is. I was wondering where you got your characterization of the Supreme Court’s attitude towards the KKK.
I think I have my answer now, and considering where you pulled it from, I hope you gave that characterization a good washing.
The hate speech argument seems to be stacking up to some degree as a cultural clash between the US on one side and Europe+Canada on the other, and apparently never the twain shall meet! But I’ll try at least to explain my reasoning.
I don’t know to what degree Phelps’s antics may have set back the cause of gay rights, but that’s hardly the only issue. I seem to recall the logic of some court rulings on gay marriage which made reference to fundamental rights like the right to not have your basic humanity diminished by being treated as a lesser human being, as not entitled to full human rights and equality under the law. Phelps’s hurtful vicious insults were a direct trampling of those rights, and as if that wasn’t enough, he was equally hurtful to the families of fallen soldiers and disruptive to their funerals, contributing to public disorder and further emotional distress to those already in distress. All of which went on, as I see it, with no redeeming public message to agree or disagree with – it was nothing but the spewing of mindless venomous hatred.
Let’s at least acknowledge that there was dissent in Snyder v. Phelps. Justice Alito stated that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.” John Paul Stevens, by that time retired, stated that had he still been on the bench he would have concurred with Alito.
BTW, I made an obvious typo up where I referred to “southern anti-segregation movements” – I obviously meant anti-desegregation – basically the racists opposing civil rights reforms.
No, I understood it, I just disagreed with it. In my view a burning cross ISprima facie intimidation. While I understand the logic of the “burning a cross even out of sight of their neighbors” argument, it was the “protected message of shared ideology” comment that got me. A burning cross is no more a “protected message of shared ideology” than a swastika spray-painted on a synagogue.
Not the only one, but it’s an important one – and I believe that imprisoning Phelps for anti-gay statements would have hurt the cause of gay rights far more than his statements do. It would have lent him legitimacy – he really is being persecuted by the government for what he said (were he imprisoned)! We shouldn’t be in the business of making martyrs to hatred.
I know you do, and that wasn’t my point. To answer the two questions – why did I bold “message of shared ideology”, and where did the reference to lynching come from – the reference was my attempt at sarcastic dark humor to emphasize the fact that the symbol that the court is protecting here is the distinctive symbol of a hate organization, historically used for intimidation and often associated with murderous violence, with much the same impact as the swastika. I find it hard to relate to the idea that either one should enjoy legal protection.
This is a real slippery slope. Anytime someone is insulted, they are being treated as a lesser human being. Mock guitarists for playing the guitar? Treated as a lesser human being. Mock fat people for being fat? Treated as a lesser human being. Mock ugly people for being ugly? Treated as a lesser human being.
By this “insults = trampling of rights” logic, a huge portion of what is currently free speech would be curtailed.
This is just incoherent. Setting aside your highly dubious recollections of marriage decisions, those decisions were about what actions the state may or may not take, not private individuals. Just as I can refuse to publish an editorial by Phelps in my newspaper, and not violate his first amendment rights, so to can Phelps call me a hell-bound faggot without violating my rights to equal treatment under the law. Indeed, I’m at a loss to see how you’re even linking the two - Phelps being an asshole impacts the lives of gay people not one bit, except by making us angry. And there is no Constitutional protection against being made angry.
And the fact that you, personally, don’t see the value in a message is not reason enough for the state to quash that message. There are a lot of messages out there I don’t see the value in, from “Climate change isn’t real,” to “Jesus is our Lord and Savior,” to “Don’t miss Keeping Up with the Kardashians, tonight at nine!” Just because you don’t like a message is not sufficient justification to prevent that message from being spread - this is, in fact, the entire point of free speech protections.
Justice Alito says a lot of stupid shit with which I disagree. So what? At any rate, Snyder v. Phelps had nothing to do with hate speech, only on time-and-place limitations on public speech.
You don’t get to declare what other people’s speech means. Particularly, you don’t get to redefine someone else’s intent in order to justify preventing them from speaking. And a burning cross is absolutely and unequivocally a message of shared ideology. So is a swastika. Fuck, that’s the whole reason the Nazis put it on everything. It’s an ideology you don’t like, but that doesn’t make it not an ideology.
Also, a swastika spray painted on a synagogue is not a protected message. It is, like a burning cross on someone else’s front yard, vandalism, trespass, and intimidation, and is fully prosecutable in every state in the union as such. A swastika in and of itself, on the other hand, is protected, and should be, because the government should not be making value judgements about the merits of any particular speech or expression. That’s precisely the logic that led to miscarriages like the Alien and Sedition Acts, or the HUAC hearings, both of which were far more damaging to the fabric of American society than letting a small number of people follow their fucked-up little philosophies.
Basically, there’s a huge difference between spray-painting an offensive message on one’s own house, and spray-painting an offensive message on someone else’s house.
Also, wolfpup, I’m curious about a disparity in your arguments here. Earlier, you chastised me for not understanding Hate Speech laws, which, you contended, were only meant to apply to calls for genocide and similar acts of mass violence. Yet in your more recent posts, you’ve been arguing that Fred Phelps’ speech should have been criminalized, despite the fact that he never made any threats against gay people, as a group or individuals, nor called for their eradication. How do you square that argument with your earlier defense of hate speech laws as limited (at least in Canada) to calls to violence?
I would like then, as a Canadian, to announce my adherence to the “American” side of this “cultural clash”.
BTW, I think you are misunderstanding what happened in the Zündel case. Zündel was convicted in the late 1980s of violating a law prohibiting “spreading false news”. That law was later struck down by the Canadian Supreme Court. Zündel’s deportation had nothing to do with hate-speech laws. He had never become a Canadian citizen, and he lost his permanent resident status when he spent a few years in the US. When he was deported from the US, he tried to claim refugee status in Canada to avoid being sent to Germany. The Citizenship and Immigration Minister and Solicitor General issued a national security certificate against him under the Canadian Immigration and Refugee Protection Act, alleging that he was a threat to national security, leading to his detention and eventual deportation from Canada.
As far as the hate speech laws go, in 1994 Zündel attempted to use them to get Schindler’s List banned. (Actually, in the 1970s, according to Wikipedia, Zündel had some mainstream respectability as a spokesman for a group claiming that German-Canadians were victims of anti-German stereotyping in the media. This was before it was public knowledge that he was a Nazi nutcase.) In the late 1990s, the Canadian Human Rights Commission was investigating Zündel for promoting hatred against Jews, but Zündel left Canada before it had completed its investigation.
Although he would no doubt have been major menace if he had ever gotten any serious power, I am not sure how many real acts of violence Zündel ever contributed to. One of the most serious was probably the destruction of his own home by arson in 1995 by a group calling itself the “Jewish Armed Resistance Movement”. (JDL leaders were apprehended breaking into his property a few days later by police, but no charges were ever laid.)
All in all, I can’t see Zündel as being a great example of Canada’s hate speech laws doing much useful.
BTW, I am taking most of this from the Wikipedia article on Zündel. Corrections are welcome.
But what he said actually ended up being the truth. If I say “Climate change is real” under your theory I would be exempt so long as a studied a requisite number (how many and of what quality?) of articles and treatises to arrive at my conclusion. If I say it because my buddies at the Dope seem to think it is real, then I could be prosecuted for it, even if it is true. That seems absurd that I could be prosecuted for factually true speech just because a bureaucrat didn’t think I did my homework.
What about things that don’t have a quantifiable true or false answer? “I believe that the traditional nuclear family was good for society.” It’s an opinion that will never be absolutely true or false. Is there any protection for that speech?
I have an honest question about these limits. I suppose one could say, “You know, that Hitler guy had it right and I wish he would have killed more Jews than he did.” Not starting a campaign to kill, but commenting on past events.
“Let’s all go kill more Jews” would probably qualify, but does it matter if I don’t have the means to actually start the process? If I am an alcoholic sitting in a trailer in the middle of nowhere, there is really no danger of this coming to pass. If I actually plan and conspire to kill Jews, then that is against the law even without Hate Speech Crimes. I’m not sure I see the need.
Even the examples regarding the KKK and the like don’t make sense. Those groups were within their rights to have rallies and speeches, but when a credible threat was placed against an individual or a group, that was a violation of the law, poor enforcement notwithstanding.
Once we start down that road, it would be easy to get on the slippery slope. Today’s laws against speech that are universally hated could turn into tomorrow’s “I don’t like the GOP” being considered hate speech.
First, because bigotry is a form of protected speech. It’s political speech. It harms the search for solutions when we have a list that says: the following things are not to be considered. If the idea is so thoroughly discredited, then it won’t be too hard to defeat the argument without outlawing it.
Second, in your own post you talk about speech that hurts others having no value and then proceed to call some people “jerks.” It belies the intent of proponents of hate speech legislation: my opinions are good and should be protected whereas yours are wrong and should be against the law.
