Absorbing Power: The Courts and Hate Speech
In Judith Butler’s ‘Burning Acts, Injurious Speech’, she references the case of R.A.V. v. St. Paul to illustrate the ways in which the courts reabsorb power to incite violence. In this case, a white teenager from Minnesota, burned a cross in front of a house occupied by an African-American family. The defendant was charged and eventually convicted, by the St. Paul City Council in 1990, making it an offence to communicate racially offensive messages. The United States Supreme Court reversed the State Supreme Court decision. One of the most baffling aspects of Butler’s comments on this case, relates to the way in which the court’s use of language transformed the act of burning the cross on an African-American family’s property to the following – “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible” (the words of the majority opinion of the court). This transformation of language strips away any contextual meaning, and denies the racist history of the act of cross burning. John Onyando stated that “there is growing evidence that the government is using prosecution for hate speech as a tool to silence its opposition critics”, and I would have to agree with this. Butler’s example, serves as a constant reminder, as with all of the themes discussed throughout the LW928 module – the imaginary, legal fictions, and performativity, that law’s power reigns. In law’s quest to punish those who spread racist, transphobic, or otherwise out-of-fashion speech, it denies the weaker members of the community e.g. the poor, political minorities, and women, of the protection it claims to afford.
In response to Absorbing Power the Courts and Hate Speech, undoubtedly the above case demonstrated how the courts can appropriate its power to incite violence. When the Petitioner assembled the cross made of broken chair legs which he burned in the fenced yard of the African American family, it appears that his action was intended to instigate hate speech, which was rightly so convicted under the St. Paul Bias-Motivated Crime Ordinance. The fact that the U.S. Supreme Court held that an ordinance prohibiting fighting words that were racially motivated was unconstitutional under the First Amendment. I have to agree with Butler that the language used strips away any contextual meaning and denies the racist history of the act of cross burning when the Court’s interpretation of the statute that the ordinance reached only “fighting words,” which are not protected under the First Amendment. They further went on to say that the ordinance was “facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. It appears that Onyando’s remarks make a world of sense that a number of evidence have shown government using prosecution for hate speech as a way of silencing those who are critical of them. The problem is if freedom of speech is protected by the court then there cannot be such a thing as hate speech and the author is right that it exposes the minority to little or no justice for them being violated in that way. Just maybe the First Amendment rights need to be reviewed in order for greater protection in place for those who are most likely to suffer racial abuses.