Körero Whakamauähara : Hate Speech Hate speech However, regulation of hate speech on the other hand is very limited given the constitutional protection of freedom of speech. Under current First Amendment jurisprudence, speech can only be regulated when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group. In Beauharnais v Illinois (1952), Justice Felix Frankfurter held that a leaflet accusing black people as a group of being rapists, robbers, carriers of guns and knives, and drug users was libel. He elaborated that libel against a group, like libel against an individual, is not within the area of constitutionally protected speech.221 Justice Frankfurter outlined instances where speech may be curtailed, citing directly from the Supreme Court’s decision in Chaplinksy v New Hampshire, including the “lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”222 Although, Beauharnais has not been overturned, it must be read in conjunction with Collin v Smith and Brandenburg v Ohio, below. Following these decisions, if the speech does not produce imminent harm, then it is likely to be regarded as protected speech. In Brandenburg v Ohio (1969), the Supreme Court protected a Ku Klux Klan member’s hateful and disparaging speech directed towards African-Americans, holding that such speech could only be limited if it posed an “imminent danger” of inciting violence. The Supreme Court ruled that a state could only forbid or proscribe advocacy that is “directed to inciting imminent lawless action and is likely to incite or produce such action.”223 The standard in Brandenburg makes it immensely difficult to justify restrictions on hate speech and is very speech protective: all speech is protected, except speech that is intentionally directed at, and likely to cause, lawless action. In Collin v Smith (1978), the Seventh Circuit Court of Appeals upheld a decision that allowed a group of neo-Nazis to march on the streets of an Illinois suburb housing a substantial Jewish population that included Holocaust survivors. The court stated that, “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”224 It further stated that, “if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises”.225 In R.A.V. v City of St. Paul (1992), the Supreme Court overturned the conviction of a teenager convicted of burning a cross on the lawn of an African American family’s home.226 The Court held that a few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favouritism, towards a nonproscribable message they contain.227 This is based upon the belief that freedom of speech requires the government to strictly protect robust debate on matters of public concern even when such debate devolves into distasteful, offensive, or hateful speech that causes others to feel grief, anger, or fear. Beauharnais v Illinois 343 US 250 (1952). Chaplinsky v New Hampshire 315 US 568 (1942) at 571-572 as cited in Beauharnais v Illinois 343 US 250 (1952) at 256. 223 Brandenburg v Ohio 395 US 444 (1969) at 448. 224 Collin v Smith 578 F 2d 1197 (7th Cir 1978) at 1202. 225 At 1210. 226 R.A.V. v City of St. Paul 505 US 377 (1992). 227 At 382-390. 221 222 39