Hate Speech

Hate speech is speech that degrades an individual or group on grounds such as race, gender, nationality, ethnicity, language, religion, or sexual orientation. Sometimes referred to as group libel, hate speech often takes the form of vilification of a group because all members are claimed to share invidious characteristics. Hate speech raises difficult issues because history has shown that many programs, repressions, genocides, and racist behaviors begin with verbal libels targeted against vulnerable groups. Thus, a society committed both to freedom of speech and to equal opportunity must wrestle with the challenge posed by racist, sexist, and other phobic speech.

Hate speech is distinct from hate crime, which consists of a criminal act motivated by bias against the victim’s race, ethnicity, gender, and so on. Many states as well as the federal government have enacted laws that provide for greater penalties for crimes committed because the victim was selected because of race, or other group membership, or the criminal behavior was motivated at least in part by bias. Hate crimes do not raise the same problems as hate speech, because the underlying behavior involved in the crime may independently be punished.

Some have contended that adding punishment to criminal acts because someone committed a crime because of bias raises problems of free speech: arguably, punishing someone’s motive for committing a bias crime is equivalent to punishing ‘‘thought.’’ But this line of reasoning seems faulty. The punishment for many crimes hinges on one’s state of mind— whether one acted deliberately as opposed to negligently, for example. The reasons someone hit another (in self-defense? to inflict pain?) can even establish whether a crime was even committed. As Justice Oliver Wendell Holmes said, even a dog can distinguish between being kicked and being stumbled over.

Many societies have contended with hate speech. The Nazis defined Jews as enemies of the state, condemned homosexuals, Roma, and Jehovah’s Witnesses, and eventually killed millions. Closer to home, American racists fulminated against African Americans, Catholics, Jews, and immigrants, and embraced violence against them. In response to the horrors of world wars, and sometimes in response to race riots at home, many states enacted statutes criminalizing ‘‘libel’’ against such groups.

For example, as early as 1917, Illinois made it a crime to exhibit in any public place any publication that ‘‘portrays depravity, criminality . . . or lack of virtue of a class of citizens, of any race, color, creed or religion’’ which ‘‘expose[d] the citizens of any race, color, creed or religion to contempt, derision, or obloquy.’’ In 1952, in Beauharnais v. Illinois, the U.S. Supreme Court upheld a conviction of a leafleteer whose tract set forth a petition calling on Chicago officials to exclude African Americans because members of that group’s alleged propensity to commit crime. According to the Court, the posters had been defined by Illinois as a form of libel against African Americans, and libels could be punished for their ‘‘‘tendency to cause breach of the peace.’’

How Do Courts Treat Hate Speech Today?

The Supreme Court’s Beauharnais decision, while never formally repealed, no longer represents the state of the law on whether government may regulate or punish hate speech. In subsequent decisions, the Court has emphasized that the First Amendment imposes higher requirements. A state may not punish speech merely because the speaker expresses outrageous views, even though those views conflict with other core constitutional values of equality. Further, even though all recognize the danger to a multiracial society of allowing falsehoods to be deployed against vulnerable groups, unless a speaker intends to foment violence and the violence is imminent, or the speech threatens specific individuals, the government may not regulate the speech or punish the speaker for expressing outrageous views.

To see how far these principles take us, consider some examples. In 1977, neo-Nazis proposed to march in uniform, including displaying swastikas, in Skokie, Illinois, a community in which many survivors of Nazi concentration camps had settled. The town and the state both enacted laws designed to prevent the march, but an intermediate federal appeals court held that the Nazis could not be prevented from parading merely because the town found their views repulsive. The case was so controversial that it split the American Civil Liberties Union, which had defended the Nazis’ right to march.

A few years earlier, a Ku Klux Klan (KKK) leader speaking to assembled members at an outdoor meeting infused with racial epithets, urged his followers to march on Washington. He suggested the possibility that there might have to be some ‘‘revengeance’’ taken if civil rights were given to African Americans. The Supreme Court held that the state could not punish the speaker since it could not show that he deliberately sought to incite violence and that violence was imminent.

These more recent decisions share certain common features. First, they hold that an individual who is merely attempting to persuade others that racism, homophobia, or cruelty should be practiced cannot be punished for those expressions.

But more significantly, suppose a listener hears a vitriolic speech condemning a particular group, say Catholics, and is thereby incited to acts of violence. The speaker cannot be held responsible for those violent acts unless he knows it is likely that his words will incite others to violence, and that violence will immediately result. This rule, that speech that merely increases the probabilities of violent acts towards vulnerable groups, is justified on the grounds that in a free society, passionate argument, vitriolic assertions, and hate-filled invective must be permitted in order to protect vibrant speech in a democratic society.

Furthermore, the concept of ‘‘group libel’’ as applied in Beauharnais has been seriously eroded. A series of Supreme Court decisions has emphasized that in order to comply with First Amendment standards, a libel must be personally directed to identifiable members of a group. By analogy, one is free to say ‘‘all lawyers are liars’’ without running afoul of libel laws; but a state is free to hold liable someone who falsely proclaims that ‘‘Fredrica, a lawyer, cheats her clients.’’ Similarly, to say that all members of a particular religious sect are thieves may ‘‘libel’’ the group, but the state may not punish such utterances. Although the free speech principle has dominated the outcomes of these decisions, nonetheless there are important limits. One challenge the Court has faced concerns ‘‘mixed messages’’ accompanying symbolic communications.

The practice of cross burning provides a helpful illustration. The KKK has a history of using burning a cross at its rallies as an affirmation of its ideological unity and opposition to an integrated society. So long as the burning is used in such a fashion, and not to intimidate neighbors or passersby, the cross burning constitutes protected communication. But the burning cross has also been used as a method of intimidation, to coerce others into complying with the Klan’s demands. For example, if someone burns a cross across the street from a racially mixed couple as a message of intimidation, the state may criminally punish the threat—in the same way that malicious phone calls or other threats of violence may be punished. In sum, the Klan has a First Amendment right to assemble and share vitriolic sentiments among themselves about minorities, but they may not target others for threats of violence or intimidation.

Another important limit on the free speech principle is the ‘‘fighting words’’ doctrine. If a person accosts another in a face-to-face setting, one does not have a First Amendment right to heap abuse on that person to the point that violence is likely. This doctrine is justified on the same grounds as the ‘‘incitement’’ limit: one does not have a free speech right to incite others to immediate violence. Even here, however, following the R.A.V. v. St. Paul (1992) decision, a state that wishes to criminalize fighting words is not permitted to select for special punishment only those fighting words involving disfavored topics (for example, speech involving race or religion). The state, in other words, must draft its regulations carefully.

Furthermore, although hate speech may not generally be punished, in certain special contexts, speech that is hateful may be regulated. For example, in an employment setting certain forms of hateful speech can contaminate a workplace, making it impossible for minorities and women to succeed. An employer is bound under Civil Rights Laws to remove discriminatory speech from the workplace that degrades employees or could reflect a ‘‘pattern’’ of discriminatory behavior affecting the job performance of minorities or women. Workplace prohibitions on verbal sexual harassment, for example, are not generally viewed as violative of free speech principles. Employees who wish to participate in discriminatory communications are still free to do so outside the workplace.

Some have urged that a university setting is sufficiently similar to a workplace to justify similar speech restrictions on campus hate speech. Although controversial, court decisions have generally sided with free speech proponents.

Why Protect Hate Speech That Neither Incites Violence Nor Intimidates?

As noted earlier, the right of certain individuals to spew invective about minorities, religious sects, or unpopular immigrants has proven controversial. Some argue that hate speech should not be protected by the First Amendment because it falsely attributes negative characteristics to an entire group. Hate speech is pernicious because it undermines critical values in a free society—namely the equal right of everyone to participate in society without fear or the built-in headwind of prejudice. The repetition of hatred inevitably influences others in the society, reinforcing prejudice.

Others contend that hate speech targets the most vulnerable groups in the society. It undermines the ability of members of those groups to live without fear and marginalization. Moreover, hate speech interferes with the capacity of different groups in the society to trust members of other groups. As Kent Greenawalt said in a different context, hate speech can have ‘‘an insidious effect on social relations’’ among different groups in the society.

Such arguments have persuaded some countries to regulate certain hateful expressions. For example, the German Constitution forbids the display of Nazi symbols. And Canadian courts have upheld the power of the state to punish extremist expressions of hatred against minority groups.

Given these harms, why do American courts protect hate speech? Speech is powerful, and to pretend otherwise denies the power of ideology to cause armies to march and missiles to fly. Justice Brandeis said that during witchhunts ‘‘men feared women and burnt women.’’ Yet, Brandeis also held that a democratic society requires robust debate to flourish. Those who hold power in society would prefer not to be subject to criticism, derision, or vehement verbal attack. Some civil rights activists also argue that minorities and vulnerable groups especially need a powerful speech right in order to challenge those who are dominant in society.

While recognizing the power of speech to motivate, to anger, and to organize, Justice Holmes also said the test of an idea is its capacity to gain acceptance in the marketplace of ideas. Under this ‘‘marketplace’’ rationale, the answer to pernicious speech is more speech, not punishment of the speaker.

One problem with punishing certain types of communications, of course, is that speech takes many forms. Some is vicious, where the speaker uses slurs to denigrate hated groups. Many people are greatly offended by such speech. However, as Henry Louis Gates has pointed out, sometimes the most forceful denigrating speech about disfavored groups is presented artfully and in an intellectual fashion.

Another problem with punishing hate speech is that there is widespread disagreement as to how to define it. Jokes, political discussion, religious speech, and history can all cast some groups in an unfavorable light. ‘‘Speech that denigrates’’ or that subjects certain groups to derision could be described in very broad terms. One person’s passionately-held core beliefs might be experienced by another as pernicious lies. Moral judgments are not readily categorized as either ‘‘true’’ or ‘‘false.’’ In sum, speech that denigrates on grounds such as race or gender may be outrageous, but beyond fighting words, incitement, or intimidation, most scholars agree that it’s difficult to define a category of ‘‘hate speech’’ that should not be protected as free speech.

JOHN T. NOCKLEBY

References and Further Reading

• Bollinger, Lee C. The Tolerant Society: Freedom of Speech and Extremist Speech in America. New York: Oxford University Press, 1986.
• Brandenburg v. Ohio, 395 U.S. 444 (1969).
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
• Cohen v. California, 403 U.S. 15 (1971).
• Collin v. Smith, 578 F.2d 1197 (7th Cir., 1978).
• Delgado, Richard, and Jean Stefancic. Understanding Words That Wound. Boulder, CO: Westview Press, 2004.
• Gates, Henry Louis. ‘‘Let Them Talk.’’ The New Republic, September 20–27, 1993, 37–49.
• Gooding v. Wilson, 405 U.S. 518 (1972).
• Greenawalt, Kent. Speech, Crime, and the Uses of Language. New York: Oxford University Press, 1989.
• Massachussets General Laws 272, section 98C, on April 30, 1943, c. 223, M.G.L.A. 272 section 98C (2000).
• Massaro, Toni, Equality and Freedom of Expression: The Hate Speech Dilemma, William & Mary Law Review 32 (1991): 211.
• Matsuda, Mari J., Charles R. Lawrence, III, Richard Delgado, and Kimberle Williams Crenshaw. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, CO: Westview Press, 1993.
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
• Nockleby, John T., Hate Speech in Context, Buffalo Law Review 42 (1994): 653–713.
• Post, Robert C., Racist Speech, Democracy, and the First Amendment, William &Mary Law Review 32 (1991): 267.
• R. v. Keegstra, 39 Alta. L.R. (3d) 305, 105 C.C.C. (3d) 19, 48 C.R. (4th) 118, 197 N.R. 26, 184 A.R. 217, 122 W.A. C. 217, [1996] 1 S.C.R. 458.
• Virginia v. Black, 538 U.S. 343 (2003).

Cases and Statutes Cited

• Beauharnais v. Illinois, 343 U.S. 250 (1952)
• R. A. V. v. St. Paul, 505 U.S. 377 (1992)

See also American Civil Liberties Union; Beauharnais v. Illinois, 343 U.S. 250 (1952); Brandeis, Louis Dembitz; Cross-Burning; Fighting Words and Free Speech; Group Libel; Hate Crimes; Hate Crime Laws; Holmes, Oliver Wendell, Jr.; R. A. V. v. City of St. Paul, 505 U.S. 377 (1992); Symbolic Speech; Threats and Free Speech