Hate speech in the United States

Hate speech in the United States is much less regulated when compared to that of most other liberal democracies.^[1] The U.S. Supreme Court has repeatedly ruled that hate speech is legally protected free speech under the First Amendment, except where such speech is directed to inciting imminent lawless action and is likely to incite or produce such action. The most recent Supreme Court case on the issue was in 2017, when the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment.

In academic circles, there has been debate over freedom of speech, hate speech and hate speech legislation.^[2]

Constitutional framework

The protection of civil liberties, including freedom of speech, was not written into the original 1788 Constitution of the United States but was added two years later with the Bill of Rights, implemented as several amendments to the Constitution. The First Amendment, ratified December 15, 1791, provides (in relevant part) that "Congress shall make no law ... abridging the freedom of speech, or of the press". The Fourteenth Amendment, ratified on July 9, 1868, has been interpreted by the Supreme Court as extending this prohibition to laws enacted by the states.

Supreme Court case law

Some limits on expression were contemplated by the framers and have been defined by the Supreme Court of the United States. Starting in the 1940s U.S states began passing hate speech laws. In Beauharnais v. Illinois the Supreme Court upheld the constitutionality of the state of Illinois's hate speech laws. Illinois's laws punished expression that was offensive to racial ethnic and religious groups. After Beauharnais v. Illinois, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine.^[3] In 1942, Justice Frank Murphy summarized the case law: "There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or 'fighting' words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace."^[4]

Traditionally, however, if the speech did not fall within one of the above categorical exceptions, it was protected speech. In 1969, the Supreme Court protected a Ku Klux Klan member's speech and created the "imminent danger" test to determine on what grounds speech can be limited. The court ruled in Brandenburg v. Ohio that: "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action."^[5]

This test has been modified very little from its inception in 1969 and the formulation is still good law in the United States. Only speech that poses an imminent danger of unlawful action, where the speaker has the intention to incite such action and there is the likelihood that this will be the consequence of his or her speech, may be restricted and punished by that law.

In R.A.V. v. City of St. Paul, (1992), the issue of banning hate speech arose again when a group of Caucasian teenagers burned a cross in the front yard of an African-American family. The local ordinance in St. Paul, Minnesota, criminalized such expressions considered racist and the teenager was charged thereunder. Associate Justice Antonin Scalia, writing for the Supreme Court, held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The Supreme Court struck down the ordinance. Scalia explicated the fighting words exception as follows: "The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey."^[6] Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, the Supreme Court embraced the idea that speech in general is permissible unless it will lead to imminent violence.^[7] The opinion noted "This conduct, if proved, might well have violated various Minnesota laws against arson, criminal damage to property", among a number of others, none of which was charged, including threats to any person, not to only protected classes.

In 2011, the Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans. The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8–1 decision the court sided with Fred Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of freedom of speech, so long as it doesn't promote imminent violence. The Court explained, "speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community' or when it 'is a subject of general interest and of value and concern to the public."^[8]

In June 2017, the Supreme Court affirmed in a unanimous decision on Matal v. Tam that the disparagement clause of the Lanham Act violates the First Amendment's free speech clause. The issue was about government prohibiting the registration of trademarks that are "racially disparaging". Justice Samuel Alito writes:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate". United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).^[9]

Justice Anthony Kennedy also writes:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.^[9]

Effectively, the Supreme Court unanimously reaffirms that there is no 'hate speech' exception to the First Amendment.

Societal implementation

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students.^[10] These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment.^[11] Debate over restriction of "hate speech" in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech.^[12]

NTIA report

In 1992, Congress directed the National Telecommunications and Information Administration (NTIA) to examine the role of telecommunications, including broadcast radio and television, cable television, public access television, and computer bulletin boards, in advocating or encouraging violent acts and the commission of hate crimes against designated persons and groups. The NTIA study investigated speech that fostered a climate of hatred and prejudice in which hate crimes may occur.^[13] The study failed to link telecommunication to hate crimes, but did find that "individuals have used telecommunications to disseminate messages of hate and bigotry to a wide audience." Its recommendation was that the best way to fight hate speech was through additional speech promoting tolerance, as opposed to government regulation.^[14][15]

References