100 CHAPTER 4|CIVIL LIBERTIES
ARE LAWS BANNING HATE SPEECH
constitutional? Sometimes yes,
but the threshold is relatively high.
These Ku Klux Klan members are
free to hold rallies, preach racism
and xenophobia, and burn crosses,
as long as they do not directly
incite violence or display an “intent
to intimidate.”
of advertising in modern campaigns, limitations on raising and spending money
could limit the ability of candidates and groups to reach voters with their message.
The Court has walked a tightrope on this one, balancing the public interest in hon-
est and ethical elections and the First Amendment rights of candidates and their
advocates. The Court has upheld individual candidates’ right to spend their own
money in federal elections, but presidential candidates give up that right if they
accept federal campaign funds (taxpayers’ money) in a presidential election. Also,
candidates in federal elections are subject to limits on the types and size of contri-
butions they can receive, and they must report all contributions and spending to
the Federal Election Commission.^21
The Bipa r tisa n Ca mpa ig n Reform Act, which went into eff ect for the 2004 elec-
tions, included a “Millionaires’ Amendment” that lifted restrictions on campaign
contributions for candidates whose opponent spent more than $350,000 of his or
her own money in the election. This attempt to level the campaign fi nance play-
ing fi eld was struck down by the Supreme Court in 2008 as a violation of wealthy
candidates’ First Amendment rights.^22 In the 2010 case Citizens United, the Court
also extended First Amendment rights to corporations and labor unions that want
to spend money on campaign ads.^23 (For more on these cases, see Chapter 8.) How-
ever, the Court upheld a ban on unlimited “soft money” contributions because they
have the most potential for corruption.^24HATE SPEECH
Free speech has been a hot topic on many college campuses in the context of hate
speech. Do people have a right to say things that are off ensive or abusive, espe-
cially in terms of race, gender, and sexual orientation? By the mid-1990s more
tha n 350 public colleges a nd universities sa id no by reg ulating some forms of hate
speech.^25 One example was a speech code adopted at the University of Michigan
that prohibited “any behavior, verbal or physical, that stigmatizes or victimizes
an individual on the basis of race, ethnicity, religion, sex, sexual orientation,
creed, national origin, ancestry, age, marital status, handicap, or Vietnam vet-
eran status” and “creates an intimidating, hostile, or demeaning environment
for educational pursuits, employment or participation in University-sponsored
extra-curricular activities.”^26 The Supreme Court has yet to rule on this issue, but
lower courts have struck down the University of Michigan’s speech code as well
as similar rules at several other universities. If the Supreme Court were to take
up any of these cases, the justices would likely
strike down the speech codes because they are
not “content neutral” regulations and they do not
meet the direct incitement test of targeting only
expressions that would spur imminent violence.
Another signifi cant issue combines the topics
of symbolic speech and hate speech. For example,
can a person who burned a cross on a black fam-
ily’s lawn be convicted under a city ordinance
that prohibits conduct “arous[ing] anger, alarm,
or resentment in others on the basis of race,
color, creed, religion, or gender”? Or is the ordi-
nance an unconstitutional limit on First Amend-
ment rights? In this case the Court said the cross
burner could be punished for arson, terrorism,hate speech Expression that is
offensive or abusive, particularly
in terms of race, gender, or sexual
orientation. It is currently protected
under the First Amendment.
symbolic speech Nonverbal
expression, such as the use of signs
or symbols. It benefi ts from many of
the same constitutional protections
as verbal speech.