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1st Amendment and Free Speech/hate crimes and freedom of speech
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Question
QUESTION: Is the First Amendment to Free Speech violated when a state creates a law precluding an individual from committing a hate crime?
ANSWER: Bailey,
)
The answer is "probably not." Look to the language of the state law and what it precludes. Is it offensive language that is not protected speech which is to be prosecuted? Is it another form that could be misconstrued? The word "speech" in the First Amendment has been extended to a generous sense of "expression" -- verbal, non-verbal, visual, symbolic. The First Amendment to the United States Constitution says that Congress shall make no law . . . abridging the freedom of "speech." Close attention to these few important words reveals several issues demanding interpretation and clarification.
Consider how the concept of "speech" has been broadened by the courts. What is "speech" for these constitutional purposes? Must it constitute communication? expression? expression of what? Must it use a language of some verbal or non-verbal sort to receive this protection? What do we mean by a language? Are there forms of expression which we would not want protected?
Also note that the language is a prohibition on Congressional action. The First Amendment applies only when Congress passes a law abridging speech. Suppressions of speech are not violations of the First Amendment unless the State does the suppressing. The State could be either the Federal government or (now) a State government. Many mistakenly thank that any suppression of speech, including suppression by private citizens, violates the First Amendment. Such a private action might be objectionable for ethical or social reasons, but it does not present a constitutional issue.
With regard to a hate crime then, what would be prohibited? Freedom of expression or speech?
Much depends upon the language of the bill. Does it consider the mere hurling of racial epithets a hate crime? If so, then maybe the 1st Amendment protection could be invoked as the scope to which it is addressing a potential crime could be construed as too broad. However, if someone is being physically harmed by the actions of others then the 1st Amendment could not be invoked as the harmful actions would not be considered mere "expression".
Jeff
Jeffrey Hauck
Licensed Private Detective
Post Office Box 142
Macungie, PA 18062
www.private-eye.homestead.com
pa.detective@gmail.com
Tel: 484-274-3909
---------- FOLLOW-UP ----------
QUESTION: THANK YOU for your insight!!
Is it possible for you to PLEASE remove my name from this answer? I would really appreciate it.
Sorry,
)
I don't have the ability to do that. Perhaps the Webmaster at Allexperts can. Your name is on the request as well. Is there a problem?
Jeff
Jeffrey Peter Hauck, JD, CPO, CII
Licensed Private Detective
Post Office Box 142
Macungie, PA 18062
www.private-eye.homestead.com
pa.detective@gmail.com
Tel: 484-274-3909
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Answers by Expert:
Jeffrey-Peter Hauck
Expertise
I would welcome the opportunity to answer questions related to or relating to the First Amendment of the U.S. Constitution.
Experience
Adjunct professor of criminal justice and political science teaching the courses of "criminal law" and "constitutional law" among others.
Decorated retired 15 year veteran police sergeant, twice promoted through the civil service commission. Served in the capacities of patrol officer, training officer, SWAT officer, first line patrol supervisor and administrative supervisor. Holder of over 50 certifications relating to police instruction. Currently a licensed private detective.
8 year veteran of the United States Army as a Staff-Sergeant/
E-6. Served as Platoon Sergeant and other roles. Primary MOS was 11B3PF7, Airborne Infantry NCO and Pathfinder. Cross trained as supply NCO (76Y) and administration NCO (71L). Graduate of PLDC, BNCOC, and ANCOC leadership schools. Current subject matter expert and CBRN (Chemical, Biological, Radiological, & Nuclear) Commissioned Chemical Branch Officer in the U.S. Army Reserve.
Organizations
ASIS International.
Police Executive Research Forum (PERF).
National Criminal Justice Association (NCJA).
Academy of Security Educators and Trainers (ASET).
American Society of Criminology (ASC).
National Tactical Officers Association (NTOA).
International Tae Kwon Do Union (ITU).
Publications
Published Full length novel, “Ports And Happy Havens,” Co-authored with L.A. Broskey, Copyright. ISBN: 1-4208-1261-0.
Full length novel, “The Awful Grace Of God,” Co-authored with L.A. Broskey, Copyright (publishing in progress).
Review & Discussion of the case of: Rydzewski v. Workers’ Compensation Appeal Board. Published in the PA Administrative Law Journal. Summer 2002.
Review & Discussion of the case of: Burley v. Pennsylvania Department of Public Welfare. Published in the PA Administrative Law Journal. Spring 2003.
Review & Discussion of the case of: LTV Steel Company, Inc. v. Workers' Compensation Appeal Board. Published in the PA Administrative Law Journal. Spring 2003.
“Model Emergency Response Team Policy and Member’s Manual.” 1999. Copyright.
“Women’s Fundamental Self-Defense Manual.” 1998. Copyright.
“Handcuffing Techniques Manual For Loss Prevention Officers.” 2002. Copyright.
Education/Credentials
Doctor of Jurisprudence (J.D.), Widener University School of Law.
Harrisburg, PA.
Graduate of the Law and Government Institute of Widener University School of Law. Certification in Law & Government. Harrisburg, PA.
B.A. Criminal Justice, DeSales University. Center Valley, PA.
Certified Legal Assistant & Paralegal,
Blackstone Career Institute, Emmaus, PA.
Licensed Private Detective,
Lehigh County, Pennsylvania.
Certified Special & General Law Enforcement Academy Educator/Trainer
Pennsylvania Municipal Police Officers’ Training And Education Commission (MPOTEC).
Certified Law Enforcement Trainer (CLET) Certification,
American Society for Law Enforcement Training (ASLET), Frederick, MD.
Municipal Police Officer Certificate of Training & Licensure (Act 120), Police Academy Training.
Awards and Honors
United States Army Meritorious Service Medal.
United States Army Commendation Medal, awarded twice.
United States Army Achievement Medal, awarded four times.
United States Army Good Conduct Medal.
United States Army Expert Infantry Badge.
United States Army Parachutist Badge.
Government of Honduras Parachutist Badge.
United States Army Air-Assault Badge.
United States Army Pathfinder Badge.
American Police Hall of Fame’s “Legion of Honor Award for Line of Duty Injury.”
Venerable Order of The Knights of Michael The Archangel, “Knight Chevalier Award.”
American Police Hall of Fame’s “Honor Award.”
The John Edgar Hoover Memorial Gold Medal for Distinguished Public Service Award.
American Police Hall of Fame “Long and Honorable Service Certificate.”
American Federation of Police and Concerned Citizens’ “George
Washington Second Amendment Gun Rights Award.”
American Police Hall of Fame “President’s National Medal of Patriotism.”
Widener University School of Law “Dean’s Honor List.”
International Tae Kwon Do Union’s (ITU) World Wide Martial Arts Hall of Fame Award for “Assistant Instructor of the Year,” 2002.
“Who’s Who Among American Law Students,” 22nd Edition, 2002 Recognition Award.
World Karate Union Hall of Fame, “Instructor Of The Year For Police Control Tactics & Self-Defense,” 2004.
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