In spite of statements concerning equality contained in the Declaration of Independence (1776) and later in the Gettysburg Address (1863), the United States does not have legislative policies always addressed at guaranteeing the basic equality and dignity of the individual, to the extent that such a statement does not appear in the American Constitution and its application remains entrusted to the interpretations of the Supreme Court.
Things change as far as an individual’s rights with regards to the state are concerned. In American law the right to freedom of speech and expression is widely acknowledged in the First Amendment, with protection that developed at both a constitutional level and in common law. Free speech is the foundation for America’s liberal school of thought, as are the rights of individuals with regard to the establishment. America’s set of rules amounts to a system of freedom from the state rather than freedom in the state and the individual’s freedom of speech may have to give way when faced with other constitutionally protected rights only within very narrow margins.
Within this framework, the protection of an individual’s rights becomes a priority compared to the protection of groups, and even more so compared to the protection of religious groups. Religion, in fact, cannot be the object of protection by the First Amendment, which, although it guarantees freedom of expression, sanctions the third position assumed by religions and their practice within the legal framework. The crime of blasphemy is therefore in clear conflict with the essence of American constitutional guarantees for free speech, since, ultimately, blasphemy can be considered the extreme expression of the right to freely express one’s thoughts. In spite of this, in some states in the union, Massachusetts, Michigan, Oklahoma, South Carolina, Wyoming and Pennsylvania, the crime of blasphemy still exists as a legacy from the days when the colonies were founded. This law, however, has effectively not been applied since the Seventies of the last century when the last trials were held.
The First Amendment protects all forms of expression and therefore also includes the freedom to express socially unpopular ideas, such as racism and religious intolerance. The repression of such manifestations, by criminalising possible blasphemous expressions, would result in discrimination of those supporting bigoted ideas creating a sort of thought crime, of preventive censorship. The First Amendment does not however address all expressions of thought, and all expressions addressed at insulting those listening or at instantly disturbing social peace are excluded. Freedom to express a thought is not in fact absolute, but is restricted by criminal law and other constitutionally protected rights (Chaplinsky v. State of New Hampshire 315 U.S. 568, 62 S.Ct. 766 [1942], R.A.V. v. City of St. Paul 505 U.S. 377, 112 S. Ct. 2538 [1992], Wisconsin v. Mitchell 508 U.S. 476, 113 S. Ct. 2194 [1993]). What becomes therefore a key issue is not so much the content of the message, but the manner in which it is expressed. This means that spreading blasphemous ideas without using violent or instigating ‘language’ is perfectly legitimate and protected by the First Amendment.
Within this legal and social framework, there is the debate on hate speech and hate crimes, centred on the identification of behaviour that can be prosecuted in compliance with the First and Fourteenth Amendments. Hate speech and hate crimes are juridical categories, created in America, defining a complex range of direct behaviours that in the case of hate crimes are addressed at identifying and repressing crimes caused by racial, ethnic or religious “hatred” etc. and, in the case of hate speech, to prosecute behaviour addressed at spreading and/or preaching “hatred” among associates for reasons linked to race, religious beliefs, sexual inclination and, in general, to elements that may be the result of an individual’s very personal choices.
To prosecute hate crimes and hate speech as happens in the United States, answers a different need in criminal policies. It is by criminalising hate crimes that victims would be protected only by attacks that result in physical or financial damage. In American law there does not appear to be room for making the manifestation of thought a crime per se, even when such a manifestation is damaging to the dignity and decorum of other citizens, unless set out as direct attacks against a certain individual’s physical integrity or assets. In practice this means that while there are no doubts concerning the illegality of hate crimes, for example, if a person is beaten to death and the victim was chosen only because he or she was a member of the gay community and identified as such outside a gay bar (as happened in South Carolina in 2007), it is hard to prosecute a cross burning as hate speech when carried out by members of the Ku Klux Klan far from an inhabited area. Things would change if the cross burning took place outside the home of a black family in a mainly white district, with the specific intention of intimidating black people and incite the white people to racial conflict (see Virginia v. Black 538 U.S. 343, 123 S. Ct. 1536 [2003]). In this case, cross burning would be a direct instigation for violence and one would be faced with a case of speech-act rather than a thought crime.
In recent years, state legislators have tried to create laws in order to prosecute hate speech with the objective of protecting the dignity of their citizens, while respecting the so-called weaker categories, among them new generation immigrants, Afro-Americans, homosexuals, religious minorities and so on, all claiming better protection from institutions due to the rise in the frequency of phenomena involving ethnic and religious intolerance. It is with these laws that there has been an attempt to establish a balance between safeguarding the free market of ideas and the principle of equality.
In spite of this, current American law has not achieved a satisfactory balance between free speech and other interests of equal importance. Having established that it is impossible to perceive blasphemy as a crime, it is equally complex to prosecute hate speech, since, according to the Supreme Court, it is not possible to pre-empt protection to a time when other fundamental rights have not yet been significantly violated. In the American system, hate speech is a particular case with characteristics that end up coinciding with those of a hate crime. This means that while on one hand it is perfectly clear to all citizens which forms of behaviour are criminal and what the corresponding sanction will be (principle of legality), as well as what the juridical aspect protected by the law is (principle of offensiveness), on the other it leaves manifestations of hatred and intolerance becoming increasing evident, deprived of all legal protection.
Translated by Francesca Simmons