Hate and the First Amendment

June 16, 1991

The Supreme Court, which has ruled twice in recent years that laws banning the burning of the American flag are unconstitutional, now has agreed to rule on laws banning the burning of Ku Klux Klan crosses. That this is needed is evidenced by the fact that a number of jurisdictions have outlawed so-called hate crimes -- and defined them in rather broad terms.

In the case the justices agreed to hear, St. Paul, Minn., outlawed burning a cross or displaying a swastika on public or private property if the action could be expected, on the basis of race, religion or sex, to "arouse anger, alarm or resentment." The individual who burned the cross in this case has linked his prosecution to the "politically correct" movement. This is the movement, centered on college campuses, that seeks to stifle -- legally and otherwise -- the expression of ideas that members of the movement view as prejudicial to women, blacks and certain other minorities.

As we have said before, we have no sympathy with those who would censor ideas, even ideas we abhor. We agree with what Justice William Brennan said in the first flag burning opinion: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." But to go from that to allowing such hateful acts as cross burning anywhere, any time, is a big leap that we do not believe the Supreme Court should take. (Nor is it likely to, especially with Mr. Brennan gone. The flag-burning cases, with their "absolute" First Amendment interpretation, were decided 5-4.)

The court has traditionally accepted the view that some "speech" may be forbidden. This language from a 1942 court decision is still the law of the land: "The right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech the prevention and punishment of which have never been thought to raise any Constitutional problem. These include . . . words which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

Since that was nearly a half century ago, and since this is the era of the politically correct movement and of a new rise in violent crimes of prejudice, it is a good time for the court to draw a line differentiating speech that is unacceptable from that which is merely offensive and disagreeable.

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