Protecting Free Speech: Why Convicting a White Supremacist Could Hurt Us All

Though Nazi Germany has long since fallen, our country seems to still be privy to Hitler’s wonderful influence.

Human nature can be quite bewildering sometimes.  It’s amazing how time and time again, no matter how insane a person is, how evil their plans are, and/or how illogical, idiotic, or impractical their ideology is, somehow, some way, there are always people who end up following said crazy person and/or group.

Anyway, back to the story at hand.  Clearly if the alleged white supremacist teenagers in the news report I linked to in the first paragraph actually committed those acts of public defacing, than they should be punished for it.  However, what might not be punishable is the content of their hateful graffiti which, as distasteful as it sounds, is protected under the First Amendment.

This might sound odd, but go with me a little on this first before sending outraged emails.  The teens have been accused of placing a white supremacist sticker on a street sign after allegedly shouting white supremacist propaganda.  Now defacing public property can be a crime.  And also harassing or threatening someone based on their race, religion, etc. could be a crime.  However, the latter can only occur if someone, an individual, is specifically targeted.  The Supreme Court has generally held that the idea of hate speech targeting an entire group, such as a whole race of people, is insufficient to qualify under this narrow exception.  The reason is because allowing it would essentially allow the government to curb free speech under the First Amendment.  However, in this case, the New York prosecutor’s office seems to be doing just that based on the facts released so far about the case.

The suspects are being charged with violating New York Penal Code 240.31, which I’ll paraphrase to spare you the headache of reading the garbled mess inherent to all statutory language.  The statute essentially makes it illegal to harass someone based on their religion, race, ethnicity, and so forth.  It then list a number of differently ways in which a person’s actions can be considered harassment.  The relevant text for our purposes is subsection 3 which prohibits drawing swastikas on public or private property without permission.

Though the teens’ stickers said “white power,” a court would probably be liberal enough to construe this hate speech as violating the statue.  However, the problem is that the teens weren’t targeting any specific person with their graffiti.  Yes, the New York statute allows punishment if the hate speech is place on public or private property.  However, to me that seems to go against the protection given to us under the First Amendment.  And if the prosecutors successful convict these teens under this law for the crime they committed, then it could set a very bad precedent for free speech in New York.  While it’s true that states have sovereignty when it comes to setting their own state-specific laws, the Fourteenth Amendment essentially prohibits states from adopting laws that go against the rights given to citizens under the Bill of Rights, which encompasses the US Constitution’s first ten amendments.

As horrible and hurtful as their conduct and ideology may be, the teenagers actions likely didn’t rise to the level of targeted harassing hate speech.  If what they did is true, they should be punished.  However in this case, that punishment shouldn’t be for the content of their speech, but simply the defacement of public property.  Otherwise, it could mean a brave new world for New Yorkers, one where citizens could be arrested for speaking their mind.

What do you guys think?  As always, please share your comments below.