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poscresearchpaper4 - Samantha Chan Dan Walter POSC 130...

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Samantha Chan Dan Walter POSC 130 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 speech rights. 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 article titled, The Hollow Hope . In the 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. Finally,
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cultural constraints are the limits on judicial power and coercion that result from the dominant political culture. If popular opinion is opposed to an attempt by the court to correct a political failure, courts will have difficult in making changes to public policy and society. The Constrained Court View contends that the constraints are strong and prevent Courts from correcting political failures and affecting society. On the other hand, the Dynamic Court View argues that these three constraints exist, but are weak and do not greatly hinder policy- making decisions. 1 The 1992 Supreme Court case, R.A.V. v. City of St. Paul addresses hate speech codes in light of the First Amendment. The case involved the dispute over whether Minnesota’s St. Paul state ordinance violated free speech rights. The Supreme Court ultimately ruled that the ordinance was unconstitutional, and overturned the decision in the state level courts. Taking into consideration the doctrinal, institutional, and cultural constraints of the case, R.A.V. v.
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