“Certain Fundamental Truths”: A Dialectic on Negative and Positive Liberty in Hate-Speech Cases

I INTRODUTION The following conversation between a civil libertarian and a new-left First Amendment theorist occurred as part of the ABA's conference on the present and future of the Bill of Rights. The discussion was precipitated by the case of Matthew Hale, a white supremacist who--to put it mildly--likes to attract media attention. He set himself up as the leader of a racist "church" called the World Church of the Creator, and immediately went about attempting to put an articulate, polite face on the organization, much in the way that David Duke tried to appear less threatening during his run for Congress in Louisiana. But there is only so much window-dressing that Hale can do, since he is obviously a rabid racist. His website contains numerous exhortations to "racial loyalty" and "racial holy war"; shopworn canards about blacks, Jews, and other ethnic minorities (called the "mud races" by Hale); a bizarre theology based on the "Sixteen Commandments" and vehement denunciations of Christianity; long-discredited bogus bio logical theories about racial differences; and a boilerplate disclaimer that the group does not condone violence. (1) Hale's little corner of cyberspace is representative of a burgeoning number of websites maintained by white supremacists and other hate groups. (2) The World Church of the Creator site alone contains links to dozens of other racist sites, (3) including those maintained by the Knights of the Ku Klux Klan, the American Nazi Party, and the White Aryan Resistance. But Hale and his organization have certainly established a higher profile than other hate groups on the Internet, particularly with their efforts to market racism to children with a kids' website featuring white-supremacist games and puzzles--fun for the whole family! (4) Hale also happens to be a graduate of Southern Illinois University Law School. Because of the publicity he had managed to attract, Hale's application to become a licensed attorney in Illinois was a media event, and the decision of the character and fitness committee of the Illinois Supreme Court, declining to certify his fitness for admission, generated immediate controversy. (5) Alan Dershowitz offered to represent Hale in his challenge to this order, an offer which, as far as I know, was not taken up. (6) Hale petitioned for review by the Illinois Supreme Court. He was denied, (7) and he then petitioned for certiorari in the U.S. Supreme Court, which he was again denied. (8) The Hale case is important not only to lawyers who represent unpopular applicants for admission to practice law. It has broader significance as a test case for much of the recent theorizing about the application of the First Amendment to hateful expression. Hale's application to practice law also provides a wonderful illustration of how the new left critique of the First Amendment would play out in practice, since the Illinois bar committee swallowed the new left position hook, line, and sinker. The committee emphasized the constitutional values of racial equality and human dignity that were threatened by Hale's asserted expressive liberties and concluded that the value of equality must supersede the value of free speech. (9) This is exactly what some of the new left critics had been urging courts to do in hate-speech cases. (10) For example, Man Matsuda, one of the pioneers of the critical race theory movement and the new left critique of the First Amendment, has suggested carving out an admittedly content-b ased, sui generis category of racist speech that can be regulated by the state. (11) Charles Lawrence, another scholar of central importance to the progressive critics, proposes a more realistic, less categorical jurisprudence, in which constitutional values of racial equality and human dignity are given pride of place alongside the expressive liberties secured by the First Amendment. (12) Again, this is precisely the suggestion adopted by the Illinois bar committee, which balanced the free-speech rights asserted by Hale against the equality interests his admission would threaten, and found Hale's claims wanting. …