December 4, 2007
R.A.V. v. City of St. Paul
Over the last few decades, there has been an increasing trend in litigation over hate
The banning of hate speech, a form of expression targeted at individuals or
groups based on race, ethnicity, nationality, or religion, raises substantial legal disputes under
the First Amendment.
Although hate speech is a form of expression, it can not be wholly
protected under freedom of speech because it is a specific type of speech that directly harms
individuals by intentionally degrading, intimidating, or inciting violence against a targeted
group of people.
Thus, the rise of hate speech cases brings up the question of how much
influence the Courts have in enacting public policy changes. Are the courts constrained in
their ability to enact social change, as in Rosenberg’s Constrained Court view, or are the
courts active and effective in producing policy reform, as in the Dynamic Court view?
Rosenberg discusses his debate of the Dynamic and Constrained Court View in his
The Hollow Hope
The Hollow Hope
, Rosenberg argues that the basis for
determining whether a case is dynamic or constrained depends on the doctrinal, institutional,
and cultural limits that affect the ruling.
Doctrinal constraints are the formal limits on the
courts that are derived from statutes, court decisions, or administrative regulations.
Institutional constraints consist of internal and external limits that hinder the Courts from
acting independently from the legislative and executive branches. On one level, internal
institutional constraints deal with the passivity of courts that constrain judicial power; while
on another level, external institutional constraints address the courts’ inability to enact change
because of their lack of power of the purse and independence from other branches.