The Volokh Conspiracy
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Ninth Circuit Judge Urges Supreme Court "Not to Give Any First Amendment Protection for Racist Hate Speech"
“[G]overnment officials ... should not be unduly constrained in their attempts to regulate hate speech for the purpose of protecting the intended targets of said speech. This may require some refining of the Supreme Court’s prior guidance in its precedents.... For example, the Court could consider modifying the Brandenburg test to require only a probable and emerging threat of violence rather than imminent lawless action as a result of speech in order to regulate it.”
In Chen v. Albany Unified School Dist., Judge Ronald Gould joined the panel opinion, but added the following; the opinion dealt with K-12 public schools' restrictions on student speech, where the government already has substantial latitude (which is what the panel focused on), but its logic expressly extends to the government as sovereign criminally punishing speech and not just to the government as educator:
I write separately to express my views on the topic of hate speech, disturbingly present in both the facts of the case before the panel and regrettably, a reemerging threat to society throughout the nation today. I reaffirm the viewpoint I stated when another case involving hate speech in schools came before this court: "Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms." Harper v. Poway Unified Sch. Dist. (9th Cir. 2006) (Gould, J., concurring in the denial of rehearing en banc), vacated on other grounds, 549 U.S. 1262 (2007). The continued prevalence of hate speech and crimes against American citizens and residents on the basis of race, ethnicity, religion, sexual orientation, gender identity, and disability is evidence of the enduring threat of hate crimes to the fabric of American democratic society and to the safety and security of individuals.
In light of this threat, I write to underscore that the First Amendment and Supreme Court precedent do not require courts always to strike down a government entity's attempts to prevent harm to their citizens—especially in the context of hateful speech at schools harming children.
The Supreme Court in Beauharnais v. Illinois (1952), upheld a criminal libel statute that sought to prevent the publications of items that subjected "citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots." Though the viability of the Beauharnais decision has been called into question by our sister circuits, the case has not been overturned and the Supreme Court's rationale focused on protecting the dignity of the enumerated class of citizens remains persuasive. {We have also previously expressed skepticism of Beauharnais. See Dworkin v. Hustler Mag. Inc. (9th Cir. 1989) ("We agree with the Seventh Circuit that the permissibility of group libel claims [discussed in Beauharnais] is highly questionable at best."). However, those decisions centered on the libel theory rationale within Beauharnais likely undermined by New York Times v. Sullivan (1964), while the majority opinion in Beauharnais also embraced a broad conception of the legislature's ability to regulate hate speech due to its pernicious effects on citizens' ability to participate fully in the democratic process as another basis for its ruling. This rationale has reemerged throughout the years since the Beauharnais opinion, see R.A.V. v. City of St. Paul (1992) (Stevens, J., concurring in the judgment).}
Courts should hesitate to question attempts by the government, through its elected bodies, to protect their constituents, and this deference is applicable both when the actions in question are undertaken at the federal level by the Congress of the United States and when actions to protect students are undertaken at the local level by an elected school board, such as in Albany, California.
Some may believe that attempts to solve the persistent issue of hate speech are misguided and ill-advised; but in response, the measured words of Justice Frankfurter come to mind: "It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings…. That being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power."
This is especially true in the context of the present case, where school administrators, including members of the elected Alameda County Board of Education, tried to protect their students from hate speech that could reasonably be construed as containing an implied threat of violence. Possibly, the school district could have taken alternative routes, such as attempting to educate and reform the perpetrators of the hate speech in line with the school's role as educators. But our role is not to dictate education policy from the bench, but rather to ensure that the Constitution and the applicable laws were correctly followed. I conclude that the school district's actions, in light of the potential for violence, the substantial disruption of school activities, and the infringement upon the rights of other students to be physically secure in their learning environment, were permissible and benign to the system of free expression protected by the First Amendment. The possibility that government actions aimed at improving the lives of students may not eventually be fully effective is no reason to say that the school board cannot try to protect its students.
The context of the public school raises the stakes. The public school is a special institution within American society, serving as "the first opportunity most citizens have to experience the power of government… [and t]he values they learn there, they take with them in life." This comes with the understanding that even for public school officials, "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." However, this understanding of the role of schools comes with a companion understanding that schools serve an essential role in imbuing and inoculating positive values in children, such as teaching the values central to good citizenship. One aspect of those values is a central understanding of the dignity and respect that must be afforded to all citizens and people, regardless of any personal characteristics or attributes like race, religion, and sexual orientation, and the role of that respect for the individual in the healthy functioning of a multiracial, pluralistic democracy. As Justice [Brennan] stated …, we recognize "that respect for the individual which is the lifeblood of the law." The flipside of that central understanding is that hate speech is antithetical to the values of this nation.
Hateful speech encourages hateful thoughts, which lead to hateful goals of individuals; those, in turn, lead to hateful actions and sometimes violence, resulting in harm to the public. No court would seriously entertain an argument that schools must teach hateful speech on the grounds of academic equality or fairness when it so clearly is antithetical to our values. Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment. Just as a school cannot be forced to teach hate speech, neither should it be forced to entertain and tolerate within its walls hate speech promulgated by arrantly misguided students. When school authorities take action to root out the persistent echoes of racism that arise from time to time in American society, courts should not stop them, instead allowing racist comments to be rooted out and not deemed protected by the First Amendment. These principles apply with cogent force to hate speech that threatens to dehumanize ethnic or racial groups within our multiracial society.
We may properly consider the incalculable harm that hate speech can cause ethnic or racial minorities in the context of school settings. Justice Thomas's words are illustrative in this evaluation: "In every culture, certain things acquire meaning well beyond what outsiders can comprehend." His words counsel us to keep in mind the differing cultural and historical circumstances that might lead different groups to experience hate speech differently. Children go to school to enrich their lives and gain knowledge and skills to assist their full and productive participation in society. But consider how an African American child must feel if confronted with images sent to other students portraying the child as inferior, as less intelligent and as less human. As in the facts of the case before us, African American children may be particularly sensitive to imagery portraying them as slaves or akin to animals.
Similarly, Jewish children may be particularly sensitive to images portraying them as rats or vermin, or even insects, as was done in Nazi Germany as prelude to the Holocaust. Indeed, each ethnic, racial, or other minority group will recognize visual images or verbal phrasings that dehumanize their community and encourage hate to be visited upon them, resulting in the disruption or interference with their effective learning process. Such an inquiry must be fact-specific and unique to the circumstances of each case, but in an especially egregious example like the case before us today, the answer is clear, as expressed in the majority opinion. In my view, civilized society should not tolerate imagery encouraging hate; government bodies, consistent with the Constitution, can and should be able to take steps to stop it.
We should understand the government, through our vast network of public schools, must be able to address systemic hatred towards minority groups within the boundaries of the school, consistent with constitutional limits placed upon government actors. Consider Justice Jackson's warning against "allow[ing] zeal for our own ideas of what is good in public instruction to induce us to accept the role of a super board of education for every school district in the nation." We have a role to play when constitutional rights, such as those involving free speech in the case before us, are implicated, but primary responsibility for the operation of the school rests with elected officials and their selected representatives, and we should not stand in the way of school boards protecting their own students from the vile effects of hate speech.
School boards properly have power to discipline the perpetrators of hate speech. Despite the lower court record indicating that some involved students allegedly boasted that "they were going to win" and not face the consequences of their hurtful speech, I conclude that culpable racist students are properly punished for their abhorrent actions, which in this case dehumanized African American students through imagery and verbiage harkening back to the days of slavery and the discredited language of eugenics.
I write to stress that school officials, and government officials more broadly, should not be unduly constrained in their attempts to regulate hate speech for the purpose of protecting the intended targets of said speech. This may require some refining of the Supreme Court's prior guidance in its precedents. For example, while recognizing that my views on hate speech may be less protective of speech than some current doctrine, I would conclude here that the racist characterizations and images, dehumanizing African Americans students, is sufficient to show a threat of imminent violence, fights or other attacks on African Americans, including, within the school context, bullying and harassment. Justice Thomas, in his dissent in Virginia v. Black involving a state statute banning cross burning with an intent to intimidate, noted his disagreement with the majority opinion's rationale that "imput[ed] an expressive component to the activity in question [i.e., cross burning]." Instead, Justice Thomas focused on the intimidating conduct itself as grounds for upholding the Virginia statute.
Refocusing our attention on the hate speech issues in this case, I conclude that "just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point." In our case, the culprits believed that they could escape the consequences of their hate speech that generated indisputable fear and intimidation in their targeted student victims because their conduct was couched in avowed "speech." If the Supreme Court decides to reassess its precedents in this area, I urge them to not blink the fact of grievous harm that hate speech causes its targets. I also urge the Court not to give any First Amendment protection for racist hate speech. For example, the Court could consider modifying the Brandenburg test to require only a probable and emerging threat of violence rather than imminent lawless action as a result of speech in order to regulate it. Regardless, I would adopt an expansive view of the ability of government officials who regulate schools to protect the future citizens they are bound to serve and educate.
This is indeed not consistent with existing Supreme Court precedents—under which there is no "hate speech" exception to the First Amendment—and I think the Court's precedents are correct on this point. (As to why Beauharnais is inconsistent with more recent precedents, see here.) But precisely because it so forthrightly calls for reducing free speech protections here, Judge Gould's concurrence struck me as noteworthy.
