Cross Burning and the First Amendment

The First Amendment of the United States Constitution guarantees every citizen the right to freedom of speech/expression. That is, the Amendment mandates that no government agency can interfere with an individual’s right to speak and/or express themselves in a public setting. However, as it is with most laws, certain exceptions to the First Amendment were later established by the Supreme Court. “Falsely shouting fire in a theatre and causing a panic…” is perhaps the most well-known example of such an exception. The other prominent exception to the First Amendment is known as the “fighting words doctrine”—this doctrine was defined by the SCOTUS in Chaplinsky v New Hampshire as words which: “by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances 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.”

To what extent do these exceptions bear on the controversial topic of restrictions on “hate speech”? For the purpose of paper, I will follow Jeremy Waldron in defining hate speech as utterances, “by which a group of people are threatened, insulted or degraded on account of their race, color, national or ethnic origin…” In this paper, I will consider two different philosophical arguments for justifying restrictions on hate speech: J.S. Mill’s “harm principle,” on the one hand, and Samuel Farber’s “socialist case for free expression,” on the other.  I will use Virginia V Black as a reference case to test the two separate arguments that the Harm Principle serves as the better framework in the given scenario. I reach this conclusion by arguing that the Harm Principle is more compatible with the current legal practice I contend that practical usability is an important factor in cases such as these—winning argument” ought to be the one that triumphs on not only philosophical grounds, but also in real world application. That is, the ideal framework ought to seem intuitive enough to legal practicioners and the public at large, not just professional theorists and academics.

Virginia v. Black

I begin with a brief description of the case Virginia v. Black. In two separate occasions, Barry Black, Richard Elliott, and Jonathan O'Mara were convicted of violating a Virginia statute that deemed it a felony “for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," The statute specified that the burning of any cross shall be considered prima facie evidence of an intent to intimidate an individual. The statute is based upon the aforementioned fighting words doctrine that emerged from the landmark Supreme Court case Chaplinsky v. New Hampshire.

The defendants were found guilty by the Virginia Supreme court of Virginia under the statute, however, the case was further appealed and eventually reached the desk of the SCOTUS. In a 5-4 decision, the Court decided that the statute was unconstitutional under the First Amendment, and as such, Black, Elliot, and O’Mara were found not guilty. Although the Justices agreed that the state of Virginia had the right to declare the burning of a cross with intention to intimidate illegal, the provision that considered cross burning as Prima Facie evidence of an intent to intimidate an individual was ruled unconstitutional. This case established that any act could not, in-itself, be evidence of an intent to intimidate, regardless of the historic context associated with the act.

The Dissent in this case was written by Justice Clarence Thomas. In his Dissent, Justice Thomas stated that “In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, and the profane. I believe that cross burning is the paradigmatic example of the latter.”  Justice Thomas further went on to say that cross burning is not limited to threatening only African-Americans, but to anyone not a member of the KKK. He stated “A white, conservative, middle class Protestant, waking up at night to find a burning cross outside his home, will reasonably understand that someone is threatening him. His reaction is likely to be very different than if he were to find, say, a burning circle or square. In the latter case, he may call the fire department. In the former, he will probably call the police.”  

Relevance of the Harm Principle

In his book On Liberty, Mill argues, “that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” This is the famous “harm principle.” Even though this statement makes no explicit mention of speech, Mill’s words can be applied to all actions and thus include speech and speech and speech-related conduct (burning crosses). Following this we can say that the harm principle (and by extension Mill) supports regulation over speech only insofar as the speech leads to harm towards another member of society. This principle also seems to follow the same thought process as the fighting words doctrine since both are concerned with preventing members of society being harmed as a result of the actions or speech of an individual.

Referring back to the SCOTUS decision, it seems that the Justices agreed with the basic idea of the Harm principle, after all, only the Virginia statute that deemed cross burning as prima facie was considered unconstitutional. Therefore, in order to succeed with my stated goal, I must be able to argue why cross burning, and other acts considered hate speech, should be considered as innately harmful. In order to make this argument, I make use of Jeremy Waldron’s interpretation of some of Mill’s key arguments. Mill’s arguments in On Liberty as they are articulated by Waldron.

For Waldron, any legislation regarding hate speech ought not concern itself with the thoughts of individuals, but rather with the tangible forms of communication, in other words, with speech-related acts. Indeed, as the aim of any such legislation is not to force individuals to conform to a particular ideology, but rather to protect others from being harmed from speech-related actions that are motivated by bigotry against others. Mill argues that it is the duty of the state to protect freedom of thought only insofar as it is consistent with Mill’s notion of “self-regarding activity” once it crosses over to “other-regarding activity” the state now has more of an obligation to prevent harm to others than to safeguard the right of the individual to freedom of thought. This being said, I contend that in cases of speech-related acts appearing as harmful to other individuals, one must not look at the perpetrators and attempt to extract their specific intentions, but rather direct the attention towards those being harmed. This is specifically implied in Mill’s use of “to prevent harm to others”—this phrasing implies that the priority of the state should be to prevent individuals from being harmed, rather than to analyze the mental states or intentions of those engaging in speech or other forms of expression.

My next argument in favor of the harm principle stems from Justice Thomas’ dissent statement. His argument involves abandoning the ahistorical nature of both the harm principle, as well as the fighting words doctrine. As they stand, neither argument invokes the historical nature of certain speech-related act, in our case, the burning of crosses. Justice Thomas’ dissent appears to be centered around attaching the history of cross burning (or other such speech-related actions) to the essence of the act. He seems to draw upon the idea that neither actions nor speech should be viewed in a vacuum, that is, one must not disregard the implied meaning of certain acts. Combining both the harm principle (as proposed by Mill) and this dissent, cross burning would no longer be protected under the first amendment due to the possibility of harm that is now implied by the act, in other words, the Virginia statute would no longer be considered unconstitutional.

Farber’s approach

In A socialist approach to free speech Farber is primarily concerned with critiquing Timothy Garton Ash’s arguments for free speech (he also critiques Mill’s work on free speech which I will get to in the subsequent section). Ash argues that empathy and toleration serve as the guarantors for freedom, but Farber distrusts this proposition as he contends that political rights ought not to be contingent on states of mind. For Farber, a right is a “good thing in itself, essential to the dignity and self-determination of persons, and necessary for democracy.”  Furthermore, Farber, much like Justice Thomas, is also critical of the ahistorical nature of certain liberal arguments surrounding free speech. Next, Farber argues that given the unequal distribution of socioeconomic power in society, an abstract, purely formal system of rights will ultimately lead to those at the top of the socioeconomic ladder to dominate those below them. Finally, when discussing hate speech, Farber creates a distinction between persuasion and intimidation. Farber uses the example of racist persuaders such as Arthur Jensen, Richard Herrnstein, and Charles Murray, and clarifies that “(the aforementioned speakers) propagate offensive racist myths under the guise of social science, are racist persuaders. Their pronouncements take place entirely within the realm of discourse, to which opponents can respond through rational discussion and careful refutation.”  As far as persuaders are concerned, Farber sees no reason to consider their words to not be protected under the freedom of speech since there is room for clash within the sphere of discourse. Intimidators on the other hand, do not aim to persuade their audience of anything, their main goal is to threaten members of other social groups. To establish that the speech of the intimidators is one of violence, Farber again invokes the history associated with these words/actions.

The major clash between Ash’s and Farber’s arguments appear at this juncture. Both authors agree that the fighting words doctrine ought to be respected, butthey disagree on what constitutes as fighting words. In this scenario, too, we can refer back to Justice Thomas’s words regarding cross burning. Assuming that actions exist in a void, and do not communicate implicit messages is naïve. Consider this example: if a stranger were to move their thumb across their neck, pretending to slice it open, and then point towards another individual, is it ludicrous for the individual on the receiving end of this gesture to assume that they might be in danger? After all, the gesture does not innately communicate a threat, it is only the societal and contextual meaning that is associated with the gesture is what gives it a more sinister twist.

Why the harm principle is superior to Farber’s approach

As I have already stated above, I believe that the harm principle is the superior of the two frameworks when it comes to questions of hate speech. I would now like to present my reasons for staking out this position. First,, the harm principle already has a place in the books, in the form of the fighting words doctrine. Therefore, the harm principle argument seems a more practically feasible option when it comes to having a real effect on actual legal practice.. Secondly,, and this is perhaps more decisive, the language of the harm principle lends itself more readily to“intuitive” solutions in hard cases when compared to Farber’s socialist framework. I consider this practical virtue to be important as this paper is concerned with both philosophy as well as law. Any changes to high profile laws (perhaps as high as a constitutional amendment) are going to have reverberations in public discourse and throughout all levels of the legal system.. Why is the harm principle more “intuitive” and easier to put to work in hard cases, such as Virginia v. Black? The harm principle relies on the acceptance of just one moral principle, that any action ought to aim to maximize the amount of happiness in society. Compared to Farber’s case, this maxim is easier to understand and to follow. Moreover, this line of thinking is already prevalent in present laws.

A few arguments against the harm principle

I would now like to consider a few objections to the arguments I advanced above. The first critique I will look at comes from George Kateb. Kateb argues that if society were to follow the harm principle, then all sorts of political and religions speech ought to be banned as well since “Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful and aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries” (Van Mill, David). Assuming Kateb’s take on political and religious speech is true, this still does not cause any problems for the harm principle. If political and religious speech does indeed cause harm to the same extent as other banned speech, then certain political and religious speech ought to be banned too. Note that under the harm principle, not all hate speech is banned either, only the speech and speech-related acts that have the capability of causing tangible harm to its audience is banned. Therefore, if political speech were to breach the same depth of harm, then I see no reason why it shall stand.

The second critique concerns itself with the intentions of the author of the speech. Referring back to Justice Thomas’ dissent, he writes “In every culture, certain things acquire meaning well beyond what outsiders can comprehend.” I want the reader to note the use of the phrase “In every culture” Surely, it is possible that someone that does not belong to said culture may not have the same understanding of the implicit meaning behind certain acts, or to take it further, it is possible that certain speech has a completely different meaning in different cultures, hence a member of one culture traveling to the other may assume that the speech/action has the same implied meaning as it does in their culture. For example, the swastika has almost a polar opposite meaning in India (perhaps most of south Asia) and Hinduism, compared to the western world.

This problem indeed raises a good point, one that I have seemingly ignored throughout this paper, namely the question of how it is that certain speech/actions are to be regulated. As I’ve stated earlier, the harm principle concerns itself with reducing harm towards the victim, therefore, if the victim is harmed in due to the historically implicit meaning of certain speech/actions, then the priority of the regulating body ought to be to reduce the harm. With this said, I still believe that it seems “wrong” to specifically punish an individual for simply being ignorant of the implicit nature of certain acts. I will leave this thought here as so far I have no answer to this specific scenario, however, I do not think this is enough to discredit the harm principle as a whole, simply because of the much larger scope that the argument provides.

Bibliography

Farber, Samuel. “A Socialist Approach to Free Speech.” Jacobin, Jacobian, 27 Feb. 2017, www.jacobinmag.com/2017/02/garton-ash-free-speech-milo-yiannopoulos.

Goldstein, Leslie F. “Virginia v. Black: Hard-Core Hate Speech, Hard-Core Porn and the First Amendment.” The Good Society, vol. 14, 2005, pp. 44–49.

Hashmall, Joe. “Fighting Words.” LII / Legal Information Institute, Cornell Law School, 7 Nov. 2017, www.law.cornell.edu/wex/fighting_words.

Hylton, Kieth N. “Implications of Mill's Theory of Liberty for the Regulation of Hate Speech and Hate Crimes.” Implications of Mill's Theory of Liberty for the Regulation of Hate Speech and Hate Crimes, vol. 3, no. 1, 1 Jan. 1996, pp. 35–57.,

Mill, David van. “Freedom of Speech.” Stanford Encyclopedia of Philosophy, Stanford University, 1 May 2017, plato.stanford.edu/entries/freedom-speech/#BacHarPri.

Mill, John Stuart. On Liberty. Norton, 1975.

Simpson, Robert Mark. “Dignity, Harm, and Hate Speech.” SpringerLink, Springer Netherlands, 27 Nov. 2012, link.springer.com/article/10.1007/s10982-012-9164-z.

Thomas, Clarence. “Thomas, J., Dissenting.” VIRGINIA V. BLACK, Legal Information Inst, 7 Apr. 2003, www.law.cornell.edu/supct/html/01-1107.ZD.html.

Waldron, Jeremy. “Dignity and Defamation: The Visibility of Hate.” Harvard Law Review, vol. 123, no. 7, 2009, pp. 1596–1657., harvardlawreview.org/2010/05/dignity-and-defamation-the-visibility-of-hate/.



What is Knowledge?

Knowledge is ONLY Scientific. Knowledge is ONLY scientific. Knowledge is ONLY mathematical.

WRONG!!

Knowledge is much more than fostering into works of positivism or being reductionist. Western knowledge deals in the positivism philosophical system that only deems certain knowledge to be considered “true” knowledge. Anything that is not part of this system of knowledge, is regarded with less or no authority at all. Like Dunn has explained, “Western knowledge systems are built upon the idea of positivism, which is the belief that the most trustworthy source of knowledge is information acquired by the senses and verified by logical, scientific, or mathematical testing” (Dunn: 2014). When in reality, all knowledge has intrinsic values within that are assessed using empathy and compassion. If anything, emotion indicates that a speaker believes in the validity of an argument” (263). One can hear lots of emotion in a story being told, depending on how deeply she feels about a certain issue or that part of her life. Within these stories we can often find experiential knowledge, which is referred to as knowledge that comes from experience. In our Western society, these stories are considered to be just stories, when in reality they offer so much more than just a mere story.

We should see this experiential knowledge as “legitimate, appropriate, and critical to understanding, analyzing, and teaching about racial subordination,” especially when those at the margin have had such a long history of creating creative ways to resist these systems of oppression (Yosso, 2006: p.7). This experiential knowledge can be used to dismantle the values that lie within the systems of oppression that are affecting our everyday lives. It is through the praxis of counter-storytelling daily that will make dismantling values practical. One of the reasons why counterstories exist is to counter the majoritarian stories that we see on a daily basis, whether we like it or not. An important part of counterstories is that they offer experiential knowledge (Click HERE to learn more about counterstories).

The Problems of Western Knowledge

The positivism knowledge in our Western society does not use the practices of accountability. Simply if it is, for example, a statistic given it is considered to be knowledge without any investigation of the knowledge itself. Without investigating experiential knowledge, we as a society, are moving away from holding our society personally responsible, especially when it comes to stories that have conflicts in them (which can be found in all counterstories!). Stories, especially that are given by the media in our current society, are usually told by the perspective of those who the story is actually affecting.

We are often fed fake news, especially in this political climate that we are currently are in. These stories are being told by majoritarian stories we hear in the media. One of the problem is that our society currently does not seek the truth, and if the media creates some kind of drama they are attracting attention. They are then making a profit for things that are not even true and we are literally buying into it. (especially when it comes to over-consumption in our Western society, which I will discuss later throughout this blog).

When it comes to stories and the experiential knowledge within we should be using the epistemological lenses. Using epistemological lenses, we see only a select group can themselves the topic that are writing about and how they write it, providing authenticity. There are core issues or themes that are relevant to many different peoples at the same time, however that does not mean they are the same person. We must be weary about this as the media likes to impose controlling images that aims to do exactly that, especially when 6 corporations own 90% of the media.

One way the media likes to do this is through controlling images, which refers to the images of subordinate groups created by dominant groups that can be either: biased, racists, sexists, etc. We have to educate ourselves on the implications of the use of controlling images and the impact that they have on our society. This would be the first step in understanding why certain people have certain values against others in general. It is only through understanding the opponent that we can learn how to resist the opponent/system. Creating brave spaces within our society would be one way we can resist systems of oppression. We must come together to change our values that the media engrains into our society, solely for profits for them and/or others.  

(Look out for an article on December 1st on over-consumption, controlling images and the uses of brave spaces in the near future!)     

The United States: NOT the Most Developed?

“Discontent is the first step in the progress of a man or a nation.”

Some would say that, the United States is the most developed country in the world. This for me, is NOT true. When they say that we are the most developed country in the world what do they mean? Do they mean just in terms of technological advancement compared to the rest of the world? Why does the idea of development have to be intrinsic to the amount/quality of technological materials we have available, when we as a people are not developed. As a society, I would say that we are not developed to the maximum potential. We live in a country where individuals come first as opposed to focusing on the community first. Because we are so engrained in the individual as a society, the myth of meritocracy has been made more apparent and people are believing this. Instead of looking at the cyclic problems that certain communities have (those at the margin in particular) have, we point the finger to the individual and proclaim that they are not doing enough. This is where the “Oh, well she/he/they made it and they were homeless so everyone else should be able to do that as well.” Another common one is, “Oh, she had another kid because she wanted to have more welfare money.”

If and when we look at the community as a whole we can look at the underlying problems that the community has, investing our time into the actual root of the problem instead of the symptom. In doing so, we are improving all of the individuals in the community instead of pointing the finger. The United States likes to cure the symptoms and not the problem, this is apparent in the many systems of oppression that are apparent in our country. This is the only way that the status quo will remain for those to be in control and stay there. One major example would be our health care system that is based solely on wealth.

When it comes to our health care system in the United States, we should ask ourselves, “Who is actually benefitting from it?” Are you? If you are part of big pharma and believe in big pharma, then yes you are benefitting from our health care system. Those who cannot afford our health care system are suffering, because they cannot afford even to go to the doctor, let alone afford the medicine after they see the doctor. We can see other health care systems that are way more developed compared to the system that we are using. For instance, in countries like Australia, they have a mix between Universal Health Care system (public) and a Private Health Care system (insurance). Those that cannot afford the Private health care insurance can still get looked at and treated. On the other hand, those who earn more and CAN afford the private insurance have to pay an additional surcharge if they do not partake in the private health insurance (Medicare Levy Surcharge).

In countries like Great Britain and Germany, doctors focus on preventing illnesses before they come apparent and are paid to do so. They are paid by capitation, which is a system in which doctors have a set number of clients annually, regardless of how many times they see their patients or what services the doctors provide. This system is one of the best systems when it comes to preventing illnesses. If you were a doctor that was paid by capitation you would try to prevent any illnesses within your clientele, because that would mean you would see them less, which means less work for you and in turn you have a healthier population overall. So why doesn’t the United States partake in this system? One word: Profit.