Speech vs. Conduct Part II
by Sherry F. Colb
In my Verdict column for this week, I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them.
Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet the content of its communication and its persuasive force are too destructive or too threatening to peaceful existence for us to tolerate. Conversely, action can provide a vehicle for conveying a viewpoint, and shutting down communicative action on the basis of its expressive content or viewpoint is censorship that courts should treat as such.
While the government may lawfully prosecute flag-burning as a species of arson or reckless burning, we do not and should not prosecute the very same conduct as flag desecration, because prohibitions on flag desecration single out for censorship a message of critique or condemnation for our country. We can disagree with and resent the act of flag-burning, but we cannot treat it as something different from and worse than other types of arson or reckless burning unless we are prepared to sacrifice our commitment to freedom of speech. Fortunately, the U.S. Supreme Court has understood that to classify "speech" as protected and "conduct" as unprotected would be to overlook government repression that we must not tolerate, even as it would demand protection for the words of people who threaten others or incite others to imminent assault or destroy the reputations of private individuals whom we know to be innocent of our charges.
Not long after the Court in Texas v. Johnson recognized the First Amendment's role in protecting flag burning from expression-based censorship, the justices faced the question of cross-burning. Cross-burning poses a very challenging issue for a particular reason. It is conduct rather than pure speech, but we know that conduct can be as expressive as words, and the government generally mustn't regulate expressive conduct on the basis of its message. Yet bringing a trespass prosecution or an arson or reckless burning prosecution against a group of Klansmen who have burned a cross on an African American family's lawn seems to miss the mark. It omits that which makes the conduct as threatening to the social fabric as it is. It is more than arson or reckless burning and more than trespass; it is cross burning. So what do we do?
In R.A.V. v. City of St. Paul, the Court invalidated the Bias-Motivated Crime Ordinance, under which the city of St. Paul charged a minor who had burned a cross within a black family's fenced-in yard. The ordinance was intended for hate crimes, and the Minnesota high court interpreted it as limited to "fighting words," a category of unprotected speech under First Amendment doctrine. The Supreme Court explained that the government may not target "words that insult or incite violence on the basis of race, religion or gender." Even when a category of speech or expressive conduct falls outside of First Amendment protection, then, censorship of such speech on the basis of content or viewpoint still violates the First Amendment.
Before we continue, let us take a small detour into fighting words doctrine, because it resonates with some of the arguments that opponents of robust free speech have made in recent times. "Fighting words" are, among other things, "what men of common intelligence would understand would be words likely to cause an average addressee to fight." They are essentially insulting statements that provoke violence against the declarant of those statements. The "punch a Nazi" movement seems to capture this idea, and I find the category rather repellent.
I will start by emphasizing that I find Nazis offensive, frightening, and evil. An older generation of Nazis--people whom present-day Nazis praise and admire--murdered all four of my grandparents, all five of my uncles, and one of my two aunts. When I say that punching Nazis is a toxic mix of short-sighed and immoral, I do so with complete awareness of what Nazis are and what they stand for.
So what is wrong with "punch a Nazi"? It trades on the notion that when people say ugly and offensive things to us and thereby "trigger" us (a word I use advisedly) into violent retaliation against them, the violence is actually their fault and not ours. Communicating thoughts and ideas that others find provocative, in this way of looking at the world, is basically "asking for" violence. I find this way of thinking stupid and reprehensible
It is stupid because most people who wish to "punch a Nazi" are somehow managing to overlook the glaringly obvious fact that most of the speech and expression that would "trigger" violent feelings and a correspondingly violent response is progressive rather than right-wing expression. If you are free to punch a Nazi because of the feelings that he provokes in you, then you will likely find yourself on the other end of the clenched fist more often than not for standing with people of color, women, LGBTQ individuals, immigrants, Jews, Muslims, or any other group that has historically (and likely presently) provoked disgust and rage on the part of many people. Trump recently said that if his thuggish supporters chose to "mobilize" they would be "tougher" and "much more violent" than those on the left who deploy violence. No doubt he meant it as a (wholly inappropriate) threat, but he was basically right about that.
Meanwhile, under current conditions, "punch a Nazi" is reprehensible because having feelings does not justify violence or the use of force against whoever caused those feelings. To believe otherwise is to condone the behavior of domestic batterers against their wives, girlfriends, and children. Such thinking falls into a category very much like the "speech is violence" category, in which we may violently assault people because we hate what they are saying. When someone's speech angers or upsets us, it is our job to use our words or else check ourselves into a facility that can keep people safe from our unrestrained violent impulses. People should not have to be quiet just because we do not like (or even perhaps hate) what they are saying. If we silence those who disagree--by punching them or by censoring their speech--there might come a time when we are wrong about something, and those who could tell us so will be afraid to speak. Being opposed to fascism ought to include an opposition to fascist tactics, including the use of physical violence.
To give you a flavor of where fighting words thinking takes us, consider the case of a straight man who appeared on a television talk show during the 1990's and learned, on the show, that a gay man had a "secret crush" on him. The straight man went on to murder the gay man, later invoking the "gay panic" defense to excuse his violence. Such a defense (which was unsuccessful) is a perfect illustration of where "fighting words" and "punch a Nazi" ideology take us. If sexist and racist words can trigger people to extend their fists, then why can't gay words directed at a homophobic straight man trigger the latter to take aim with a firearm? I remember at the time finding it disturbing that the television program could be civilly liable for the murder for inviting the two men on the show and having the "secret crush" revealed. This is the company that "punch a Nazi" advocates keep.
The "fighting words" category of speech falling outside the First Amendment has fortunately fallen into disrepute. If you say something offensive and someone tries to punch you, the law properly directs its punitive energy against you, where it belongs, and not against the speaker. Still, the Court has not overruled Chaplinsky v. New Hampshire, the case that officially recognized the fighting-words doctrine. That's why in R.A.V. the Minnesota high court apparently thought it could deal with hate speech through this doctrine. The Supreme Court understood the law in question as singling out those "fighting words" that expressed bigotry, and a 5-4 majority of the Court said that singling out the message of even unprotected speech constitutes censorship in violation of the First Amendment.
Though the ordinance in R.A.V. may have been poorly drafted, the takeaway message from the case appeared to many to be that cross-burning, like flag burning, was entitled to protection from laws that singled it out for what it communicates. The message seemed to be that hate crime statutes would all violate the First Amendment. This could mean that even a lynching law--a law that singled out murders that express a message of racial hatred--would violate the Constitution. Could that really be?
The term after the Court decided R.A.V., it took the case of Wisconsin v. Mitchell. In Mitchell, the Court faced the explicit question of whether hate crime enhancements of sentences violate the First Amendment. Such enhancements provide for steeper penalties upon conviction, if the victim's race, religion, sexual orientation, etc. motivated the crime. In the case before the Court, an African American youth had decided to beat up a white boy on account of the boy's being white. The trial court imposed a hate crime enhancement on the basis of the perpetrator's racially motivated victim selection.
The Supreme Court was happy to announce in Mitchell that hate crime enhancements are permissible, notwithstanding R.A.V. The difference? Hate crime enhancements target invidious motivation rather than invidious expression. The government may not single out the expression of hateful ideas because of their content or viewpoint, but it may single out criminal activity motivated by such hatred. Mitchell, which was unanimous, led some people to breathe a sigh of relief. If a government wanted to address hate crimes as the special menace that they are, it could do so by talking about what motivated the crime instead of talking about what ideas the crime expressed.
Though lawyers for the respondent and various amicus briefs argued that punishing motive is akin to creating a thought crime--arguably an even worse sort of censorship than an expression-based crime--we are actually quite used to penalizing motives. When we impose the death penalty because financial gain drove the crime, we have a motive-based penalty. And when we prohibit discrimination in employment (while leaving in place at-will employment more generally), we penalize prohibited motives as well. Intent, moreover, is a close cousin of motive, and virtually everything in the criminal law turns on intent.
And yet... Mitchell is in serious tension with R.A.V. Why? Think about how we know that a crime was "motivated by" racial animus. We know because the hate crime openly expresses that hatred. If prosecutors had targeted R.A.V. for racially motivated misconduct, nothing would change. The government would still be singling out conduct on the basis of the message expressed. It was the fact that the petitioner burned a cross--and not a smiley face or a heart--that made the government want to prosecute him. If it is all a matter of rewording statutes, then why did the Court bother to even say what it did in R.A.V.? It might as well have held that the lawmakers there used the wrong font to survive First Amendment scrutiny and would, in the future, need to switch to Courier.
What is more, the thing that makes a hate crime worse than other crimes that involve the same basic conduct is the message of the hate crime, not its motive. While we condemn bigotry as a motive, we feel a special sense of outrage and alarm about a hate crime, including the burning of a cross on a family's lawn and certainly including the horror of a lynching. A hate crime tells its victims and the people in the general public who share the victims' identity that they can never feel safe in their own homes, that someone like the perpetrator can come along at any time and take it all away.
Far more than the killer's feelings and motivations, what caused Jews around the country to feel vulnerable and frightened in response to the mass murder at the Tree of Life synagogue in Squirrel Hill was that the crime expressed and was not merely motivated by murderous anti-semitic hatred, a hatred as old as the Jewish people and as lethal and contagious as any bigotry on the face of the Earth. Had the killer manifested no anti-semitism, had he thrown a bomb at a popular pizza restaurant and killed the same number of people, the fact that he actually decided to commit his crime out of Jew-hatred would not have had the same impact on the rest of the country.
Hate crimes are all about expression through crime. And indeed the evidence for an invidious motive will often turn out to consist of expressive remarks by the perpetrator during the commission of the crime. But conveniently for a Court that wants to say it protects the criminal expression of racial hatred from viewpoint- or content-based discrimination, virtually every crime that openly expresses racial hatred will manifest a bigoted motive as well. Ironically, in a discussion of motives and their importance, the Court accordingly offers what may be a pretextual account of its own motives for allowing for hate-crime penalty enhancements: it says it is reacting to the criminal's motive, while the truth may be that motive regulation provides a good cover for the regulation of expressive conduct for its content and viewpoint.
So what should the Court have done instead? I think the Court could have said in R.A.V. that burning a cross on a black family's lawn receives no First Amendment protection whatsoever. It would then have been unnecessary to place hate crime enhancements in the "motive" regulation category, a move that does little beyond semantics to protect expression while simultaneously leading many Americans to believe that the First Amendment affirmatively protects the right to burn a cross. The Court could have grappled with the possibility that it might need to expand the "true threats" category (as it arguably did, sub silentio) to include the sort of population-level threat conveyed by a cross burning or by a lynching. It could have acknowledged that this country's unique history with respect to racial terrorism may call for special "censorship" when the expression is already legally prohibited (by trespass, arson, and murder statutes). It might have turned out, if the Court had been honest, that when it comes to acts of terrorism more generally, the speech/conduct distinction could have played a useful limiting role.
In my Verdict column for this week, I discuss some ways in which combating both coerced confessions and date rapes necessarily creates special challenges. We want to protect victims of these two abhorrent practices, and we also want to allow for good confessions and for mutually desired sexual encounters. I explore how the challenges arise and what we might do to address them.
Here I want to return to the topic of free speech. Two weeks ago, I wrote in this space about the speech/conduct distinction and its utility as an instrument for distinguishing between the expression that the First Amendment ought to protect and the behavior that finds no legitimate protection in the Bill of Rights. I argued that the distinction cannot do the work that we might want it to do. Virtually all of the speech that rightly falls outside of the protected category--including true threats, incitement to imminent lawlessness, and defamation--is truly speech, not action--and yet the content of its communication and its persuasive force are too destructive or too threatening to peaceful existence for us to tolerate. Conversely, action can provide a vehicle for conveying a viewpoint, and shutting down communicative action on the basis of its expressive content or viewpoint is censorship that courts should treat as such.
While the government may lawfully prosecute flag-burning as a species of arson or reckless burning, we do not and should not prosecute the very same conduct as flag desecration, because prohibitions on flag desecration single out for censorship a message of critique or condemnation for our country. We can disagree with and resent the act of flag-burning, but we cannot treat it as something different from and worse than other types of arson or reckless burning unless we are prepared to sacrifice our commitment to freedom of speech. Fortunately, the U.S. Supreme Court has understood that to classify "speech" as protected and "conduct" as unprotected would be to overlook government repression that we must not tolerate, even as it would demand protection for the words of people who threaten others or incite others to imminent assault or destroy the reputations of private individuals whom we know to be innocent of our charges.
Not long after the Court in Texas v. Johnson recognized the First Amendment's role in protecting flag burning from expression-based censorship, the justices faced the question of cross-burning. Cross-burning poses a very challenging issue for a particular reason. It is conduct rather than pure speech, but we know that conduct can be as expressive as words, and the government generally mustn't regulate expressive conduct on the basis of its message. Yet bringing a trespass prosecution or an arson or reckless burning prosecution against a group of Klansmen who have burned a cross on an African American family's lawn seems to miss the mark. It omits that which makes the conduct as threatening to the social fabric as it is. It is more than arson or reckless burning and more than trespass; it is cross burning. So what do we do?
In R.A.V. v. City of St. Paul, the Court invalidated the Bias-Motivated Crime Ordinance, under which the city of St. Paul charged a minor who had burned a cross within a black family's fenced-in yard. The ordinance was intended for hate crimes, and the Minnesota high court interpreted it as limited to "fighting words," a category of unprotected speech under First Amendment doctrine. The Supreme Court explained that the government may not target "words that insult or incite violence on the basis of race, religion or gender." Even when a category of speech or expressive conduct falls outside of First Amendment protection, then, censorship of such speech on the basis of content or viewpoint still violates the First Amendment.
Before we continue, let us take a small detour into fighting words doctrine, because it resonates with some of the arguments that opponents of robust free speech have made in recent times. "Fighting words" are, among other things, "what men of common intelligence would understand would be words likely to cause an average addressee to fight." They are essentially insulting statements that provoke violence against the declarant of those statements. The "punch a Nazi" movement seems to capture this idea, and I find the category rather repellent.
I will start by emphasizing that I find Nazis offensive, frightening, and evil. An older generation of Nazis--people whom present-day Nazis praise and admire--murdered all four of my grandparents, all five of my uncles, and one of my two aunts. When I say that punching Nazis is a toxic mix of short-sighed and immoral, I do so with complete awareness of what Nazis are and what they stand for.
So what is wrong with "punch a Nazi"? It trades on the notion that when people say ugly and offensive things to us and thereby "trigger" us (a word I use advisedly) into violent retaliation against them, the violence is actually their fault and not ours. Communicating thoughts and ideas that others find provocative, in this way of looking at the world, is basically "asking for" violence. I find this way of thinking stupid and reprehensible
It is stupid because most people who wish to "punch a Nazi" are somehow managing to overlook the glaringly obvious fact that most of the speech and expression that would "trigger" violent feelings and a correspondingly violent response is progressive rather than right-wing expression. If you are free to punch a Nazi because of the feelings that he provokes in you, then you will likely find yourself on the other end of the clenched fist more often than not for standing with people of color, women, LGBTQ individuals, immigrants, Jews, Muslims, or any other group that has historically (and likely presently) provoked disgust and rage on the part of many people. Trump recently said that if his thuggish supporters chose to "mobilize" they would be "tougher" and "much more violent" than those on the left who deploy violence. No doubt he meant it as a (wholly inappropriate) threat, but he was basically right about that.
Meanwhile, under current conditions, "punch a Nazi" is reprehensible because having feelings does not justify violence or the use of force against whoever caused those feelings. To believe otherwise is to condone the behavior of domestic batterers against their wives, girlfriends, and children. Such thinking falls into a category very much like the "speech is violence" category, in which we may violently assault people because we hate what they are saying. When someone's speech angers or upsets us, it is our job to use our words or else check ourselves into a facility that can keep people safe from our unrestrained violent impulses. People should not have to be quiet just because we do not like (or even perhaps hate) what they are saying. If we silence those who disagree--by punching them or by censoring their speech--there might come a time when we are wrong about something, and those who could tell us so will be afraid to speak. Being opposed to fascism ought to include an opposition to fascist tactics, including the use of physical violence.
To give you a flavor of where fighting words thinking takes us, consider the case of a straight man who appeared on a television talk show during the 1990's and learned, on the show, that a gay man had a "secret crush" on him. The straight man went on to murder the gay man, later invoking the "gay panic" defense to excuse his violence. Such a defense (which was unsuccessful) is a perfect illustration of where "fighting words" and "punch a Nazi" ideology take us. If sexist and racist words can trigger people to extend their fists, then why can't gay words directed at a homophobic straight man trigger the latter to take aim with a firearm? I remember at the time finding it disturbing that the television program could be civilly liable for the murder for inviting the two men on the show and having the "secret crush" revealed. This is the company that "punch a Nazi" advocates keep.
The "fighting words" category of speech falling outside the First Amendment has fortunately fallen into disrepute. If you say something offensive and someone tries to punch you, the law properly directs its punitive energy against you, where it belongs, and not against the speaker. Still, the Court has not overruled Chaplinsky v. New Hampshire, the case that officially recognized the fighting-words doctrine. That's why in R.A.V. the Minnesota high court apparently thought it could deal with hate speech through this doctrine. The Supreme Court understood the law in question as singling out those "fighting words" that expressed bigotry, and a 5-4 majority of the Court said that singling out the message of even unprotected speech constitutes censorship in violation of the First Amendment.
Though the ordinance in R.A.V. may have been poorly drafted, the takeaway message from the case appeared to many to be that cross-burning, like flag burning, was entitled to protection from laws that singled it out for what it communicates. The message seemed to be that hate crime statutes would all violate the First Amendment. This could mean that even a lynching law--a law that singled out murders that express a message of racial hatred--would violate the Constitution. Could that really be?
The term after the Court decided R.A.V., it took the case of Wisconsin v. Mitchell. In Mitchell, the Court faced the explicit question of whether hate crime enhancements of sentences violate the First Amendment. Such enhancements provide for steeper penalties upon conviction, if the victim's race, religion, sexual orientation, etc. motivated the crime. In the case before the Court, an African American youth had decided to beat up a white boy on account of the boy's being white. The trial court imposed a hate crime enhancement on the basis of the perpetrator's racially motivated victim selection.
The Supreme Court was happy to announce in Mitchell that hate crime enhancements are permissible, notwithstanding R.A.V. The difference? Hate crime enhancements target invidious motivation rather than invidious expression. The government may not single out the expression of hateful ideas because of their content or viewpoint, but it may single out criminal activity motivated by such hatred. Mitchell, which was unanimous, led some people to breathe a sigh of relief. If a government wanted to address hate crimes as the special menace that they are, it could do so by talking about what motivated the crime instead of talking about what ideas the crime expressed.
Though lawyers for the respondent and various amicus briefs argued that punishing motive is akin to creating a thought crime--arguably an even worse sort of censorship than an expression-based crime--we are actually quite used to penalizing motives. When we impose the death penalty because financial gain drove the crime, we have a motive-based penalty. And when we prohibit discrimination in employment (while leaving in place at-will employment more generally), we penalize prohibited motives as well. Intent, moreover, is a close cousin of motive, and virtually everything in the criminal law turns on intent.
And yet... Mitchell is in serious tension with R.A.V. Why? Think about how we know that a crime was "motivated by" racial animus. We know because the hate crime openly expresses that hatred. If prosecutors had targeted R.A.V. for racially motivated misconduct, nothing would change. The government would still be singling out conduct on the basis of the message expressed. It was the fact that the petitioner burned a cross--and not a smiley face or a heart--that made the government want to prosecute him. If it is all a matter of rewording statutes, then why did the Court bother to even say what it did in R.A.V.? It might as well have held that the lawmakers there used the wrong font to survive First Amendment scrutiny and would, in the future, need to switch to Courier.
What is more, the thing that makes a hate crime worse than other crimes that involve the same basic conduct is the message of the hate crime, not its motive. While we condemn bigotry as a motive, we feel a special sense of outrage and alarm about a hate crime, including the burning of a cross on a family's lawn and certainly including the horror of a lynching. A hate crime tells its victims and the people in the general public who share the victims' identity that they can never feel safe in their own homes, that someone like the perpetrator can come along at any time and take it all away.
Far more than the killer's feelings and motivations, what caused Jews around the country to feel vulnerable and frightened in response to the mass murder at the Tree of Life synagogue in Squirrel Hill was that the crime expressed and was not merely motivated by murderous anti-semitic hatred, a hatred as old as the Jewish people and as lethal and contagious as any bigotry on the face of the Earth. Had the killer manifested no anti-semitism, had he thrown a bomb at a popular pizza restaurant and killed the same number of people, the fact that he actually decided to commit his crime out of Jew-hatred would not have had the same impact on the rest of the country.
Hate crimes are all about expression through crime. And indeed the evidence for an invidious motive will often turn out to consist of expressive remarks by the perpetrator during the commission of the crime. But conveniently for a Court that wants to say it protects the criminal expression of racial hatred from viewpoint- or content-based discrimination, virtually every crime that openly expresses racial hatred will manifest a bigoted motive as well. Ironically, in a discussion of motives and their importance, the Court accordingly offers what may be a pretextual account of its own motives for allowing for hate-crime penalty enhancements: it says it is reacting to the criminal's motive, while the truth may be that motive regulation provides a good cover for the regulation of expressive conduct for its content and viewpoint.
So what should the Court have done instead? I think the Court could have said in R.A.V. that burning a cross on a black family's lawn receives no First Amendment protection whatsoever. It would then have been unnecessary to place hate crime enhancements in the "motive" regulation category, a move that does little beyond semantics to protect expression while simultaneously leading many Americans to believe that the First Amendment affirmatively protects the right to burn a cross. The Court could have grappled with the possibility that it might need to expand the "true threats" category (as it arguably did, sub silentio) to include the sort of population-level threat conveyed by a cross burning or by a lynching. It could have acknowledged that this country's unique history with respect to racial terrorism may call for special "censorship" when the expression is already legally prohibited (by trespass, arson, and murder statutes). It might have turned out, if the Court had been honest, that when it comes to acts of terrorism more generally, the speech/conduct distinction could have played a useful limiting role.