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.


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