April 29, 2009

Viewpoint Censorship

Back in the 1990's, there was a kid in Minnesota who, quite obnoxiously, put together a cross from broken chair legs, and burned it on the front lawn of an African-American family in St. Paul. He was charged with violating a local hate speech ordinance:
Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
A nice sentiment on the part of the city of St. Paul -- burning crosses, swastikas, and the like are utterly obnoxious and lack socially redeeming value. They are also, unfortunately, expressions of an opinion and therefore protected by the First Amendment. It's easy to want to punish someone who has done something like this, because it's so morally obnoxious. And the speech in question here was assumed to be unprotected by the First Amendment. But letting your conscience be your guide in a particular case can sometimes lead to the creation of a rule that works greater harm than that which you wish to prevent.

Which is why the Supreme Court specifically noted that laws which engage in "viewpoint discrimination" violate the First Amendment, even if the speech in question is itself unprotected. The City of St. Paul did not outlaw expressions of racial solidarity and harmony, and therefore could not criminalize expressions of racial discord. This particular law was justified only on the basis of the City's revulsion at the content of the speech itself, which is why it violated the Constitution. "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire," the Court concluded.

Justice Antonin Scalia wrote that opinion, by the way. He seems to have a more pro-government position on the goings-on at Guantanamo Bay than he did in evaluating the hate speech law in St. Paul.

So with that in mind, let's take a look at this principle in another context. Back in my old stomping grounds in Knoxville, the schools have taken it upon themselves to ban certain websites but not others. Just as a sample, the website of PFLAG -- Parents and Friends of Lesbians and Gays -- is blocked. PFLAG's site is completely safe for work. So too is the blocked website of the Human Rights Campaign, which urges political action such as adoption of same-sex marriage laws and sponsors gay pride parades.* But, a child using a Knox County public school computer can access websites providing testimonials about men who used Christianity to overcome their attraction to other men, and to the political advocacy website of the Traditional Values Coalition. From the article, a quote by one of the complaining parties, a librarian employed by the school district:
What tends to be discussed is, ‘Isn’t this just keyword blocking?’ Sometimes that is the reason very innocuous things will get blocked. But in this circumstance, in looking at the sites that were blocked and the sites that were not blocked, the keyword question seemed to fly out the window. You had sites like Human Rights Campaign, which is approved by the National Education Association, and GLSEN, being blocked. Both have a clear line into the media, and the legislative issues. These are all things students need access to. [¶] What’s not being blocked are sites that contain the words ‘gay’ and ‘homosexual’ and ‘lesbian’ but are advocating, for example, that people change their sexual orientation.
So what's happening here is that if it's a "gay-friendly" website, it gets blocked, but if it's a "Christian-friendly" website, it doesn't.

Now, I see a flaw in the reporting. The investigative reporter who searched for banned websites indicated that the Human Rights Commission's website was banned. The Human Rights Commission is different than the Human Rights Campaign. Tennessee's Human Rights Commission is an agency of the state government of Tennessee and it is the state-level equivalent of the EEOC in that state. Contrary to the report in the Knoxville MetroPulse, the Tennessee Human Rights Commission's website does not appear to be blocked at Knox County public schools.

Which makes sense if my suspicion about the real policy at play here is correct. Tennessee state law, like Federal law, does not extend anti-discrimination protection to homosexuals. From my experience practicing employment law in the Volunteer State, this agency is entirely useless in terms of actually doing anything to prevent or combat discrimination; it never actually investigated a single charge I ever filed with it and in my experience never took action on a single complaint brought before it by any of my colleagues. It usually passed along the charges I sent to it to the EEOC, which itself was not all that activist in that state. And since it doesn't do anything to protect or vindicate gays as a matter of law, there is no chance that a child using a school computer could go to the Human Rights Commission's website and learn that gay people actually have rights of some kind. So there is no reason for the hidden censor to ban a website like that.

Despite the mistake in the reporting, students and faculty at Knox County schools can access the James Dobson website but not the gay rights website. In other words, Knox County computers will only give you one side of the larger debate. The practice appears to me to be utterly indefensible and motivated by not only bigotry towards homosexuals but open hostility to the idea that homosexuals might have rights. And unsurprisingly, a friendliness to the idea that Christianity offers a "solution" to the "problem" of being gay.

It's one thing to filter out porn, which a school computer ought to do. But we're not talking about a porn filter. Someone has decided to not let kids, especially high school kids who are already aware that there are such things as gay people, even do research on what the different sides of an issue are to, for instance, prepare for a debate class or a social studies report. This, alone, indicates the fundamental weakness of the "traditional values" position embodied by this policy -- as I pointed out a while back, "Censors and bullies do not appear to be advocating good policies, because they rely on something other than the strength of their arguments to get their way." You can't tell me that's not what's going on here, because it is.

It is a shame that Knox County schools have become captured by intellectual bullies this way. Although I am critical of the ACLU for a lot of things, I hope they succeed in this case.


* Ironically, the Human Rights Campaign is also urging adoption of hate crimes laws, which are themselves at least suspect under R.A.V. v. St. Paul. The Human Rights Campaign ought not to advocate laws that are of questionable Constitutional water, no matter how well-motivated they are. But, a look at the Traditional Values Coalition's website reveals that they do not argue that the laws should be stopped because they are unconstitutional, but rather on some argument that they are somehow hostile to "traditional morality" such as that embodied in Christianity, so no one gets to be the good guy here.

6 comments:

Left Coast Rebel said...

Good points here, I agree that just because a form of expression is 'obnoxious' or socially inept does not give any branch of governement the right to censor that speech or expression. I think that we are on the slippery slope of censorship and Statist infringement of our basic rights. I put 'hate speech' in this category as well....

David Schraub said...

I don't think it's quite right to keep dropping references to R.A.V. without noting how it was substantially modified by Virginia v. Black, 538 U.S. 343 (2003) (laws prohibiting cross burning with intent to intimidate are valid against first amendment challenge). Since pretty much all hate crimes laws I've seen proposed in the US supervene upon illegal conduct (e.g., an assault with an intent to intimidate based on race or sexual orientation falls under a hate crimes statute), they seem to fit far more closely under Black than R.A.V..

Transplanted Lawyer said...

I disagree. Virginia v. Black was a badly-fragmented Court and focused exclusively on the issue of cross-burning as unprotected speech -- which is unhelpful given that R.A.V. was predicated upon the assumption that cross-burning was, indeed, unprotected "fighting words" under Chaplinksy. What Black gets you is that some hate crimes law laws pass constitutional muster (and in my footnote, I only said that they were "suspect"). But we're not talking about review of a hate crime law here at all -- we're talking about viewpoint-based censorship in a relatively pure form.

About the best we can get from the confused holding in Black relative to content-based discrimination is "R.A.V. did not hold that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, ... a particular type of content discrimination does not violate the First Amendment when the basis for it consists entirely of the very reason its entire class of speech is proscribable."

So if we were talking about a proscribable area of speech (e.g. obscenity), then Black might be useful. But the blocked websites are non-obscene, and more to the point, they are what both Black and R.A.V. refer to as "core political speech." The basis for the content-based discrimination here cannot be the very reason that the speech itself is proscribable because the speech in question is not proscribable at all. That leaves us with a viewpoint-based, as opposed to a subject-matter-based, lens being applied to the blocked websites, which is why I cited R.A.V.

David Schraub said...

But that's the point -- they're disanalogous cases.

What Knox schools are doing is pure viewpoint discrimination. But what HRC advocates for (which you attack in a footnote and imply is hypocritical) are hate crimes laws, which are likely legal under Black insofar as they link the increased penalties to enactments of hate tied to other substantive crimes. As I noted, it shouldn't be too difficult to meet the Black standard in these cases: I don't think a prosecutor will have too much trouble convincing a jury that "you fucking faggot" was intended to intimidate on basis of sexual orientation while the speaker was punching the victim in the face.

Also, it is entirely proper for the HRC to advocate for laws of "questionable constitutional water", assuming that they think the question will be or should be resolved in their favor.

Darth Rob said...

Let me get this straight it's not ok to assault people for reasons of race and sexual preference, but it is a different kind of crime if a person gets beaten for being overweight, or being less intelligent than the rest of society. You see, I'm no lawyer, but I think that all crime has some intent to intimidate. If I break into your house while your home, and I am brandishing a weapon does that not intimidate so you wont fight back while I rob you? If you kill someone or beat them don't you already have some hate for that person, regardless of color or sexual preference.

David Schraub said...

Ah, the "every crime is a hate crime" argument. But it isn't true. First of all, I can rob someone without hating them -- if I'm particularly civic minded, I might even feel bad about it. Second, there is a rather clear distinction between intimidation that necessarily inheres to the completion of a crime, and crimes motivated by a desire to intimidate -- if for no other reason than the class of victims in a lynching is significantly larger than just the guy swinging from the tree. A lynching told the whole Black community that their lives were worthless, and that if they tried to stand up for themselves, they'd be killed in the most barbaric form possible. The anti-social implications of a lynching are far more severe than that of a "typical" murder without the added element of hate.

Fundamentally, hate crimes laws are really a sub-species of anti-terrorism law (a blogger at Feministing, in fact, suggests we merge the two together completely). Both commit acts of violence in order to terrorize a specified community; to render them politically subordinate, and/or encourage them to do something or refrain from something.

All murders terrorize of course, but that doesn't mean anti-terrorism laws are superfluous. 9/11 was not just a 3,000 count homicide. It was terrorism. Indeed, it could be characterized as America's largest scale hate crime.