Hate speech: definitions, impacts, and legal frameworks

Hate Speech

Constitutionality of hate-speech laws and legislation

College campus hate-speech codes,

Fighting words; hate symbols

State interest in regulating hate-speech,

Arguments for and against such laws and codes,

First Amendment protection of unpopular or offensive speech,

Sentence enhancement for bias motivated crimes,

Supreme Court handling of hate speech and hate crime issues

Constitutionality of hate-speech laws and legislation

The Constitution of the United States was drafted in 1787, ratified in 1788, and put into operation in 1789. The 10 amendments constituting the Bill of Rights were adopted in 1791. The first of these restricted the new government's powers with regard to speech and the press: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Interpretations of the First Amendment are at the center of the legal debates about free speech and hate speech. Like many articles in the Constitution, the exact meaning of the first amendment and the implications it had for the founding fathers are unclear. It provides a general orientation for federal action, but just how it is to be made operational is open to discussion. The conclusion reached will depend on the overall interpretive framework one uses. These frameworks, in turn, will merge into one's political and social philosophy. For example, at the time of its adoption, many thoughtful people believed that government should not prohibit the publication of one's views but could and should punish some writers for the harmful effects of such publication. This view, while plausible, is not the dominant interpretation at the present time.

The Constitution does not offer a rationale or ground for a broad principle of free speech. Is speech to be unrestricted because efficient democracy requires it? Because it will facilitate the discovery of truth? Because people have a natural right to speak their minds? The Constitution itself offers little guidance. But the rationale may be crucial when applying the general principle to difficult cases. Again, the rationale is supplied by one's interpretive framework, which in turn is closely associated with one's political and social philosophy.

College campus hate-speech codes,

Many universities, under pressure to respond to the concerns of those who are the objects of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion or sexual orientation.

However, the First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government financed state colleges and universities amount to government censorship, in violation of the Constitution. How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied. Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech not less is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.

College administrators may find speech codes attractive as a quick fix, but as one critic put it: "Verbal purity is not social change." Codes that punish bigoted speech treat only the symptom: The problem itself is bigotry. The ACLU believes that instead of opting for gestures that only appear to cure the disease, universities have to do the hard work of recruitment to increase faculty and student diversity; counseling to raise awareness about bigotry and its history, and changing curricula to institutionalize more inclusive approaches to all subject matter.

Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyone's rights because the same laws or regulations used to silence bigots can be used to silence anyone. Conversely, laws that defend free speech for bigots can be used to defend the rights of civil rights workers, antiwar protesters, lesbian and gay activists and others fighting for justice.

Fighting words; hate symbols

The U.S. Supreme Court did rule in 1942, in a case called Chaplinsky v. New Hampshire, that intimidating speech directed at a specific individual in a face-to-face confrontation amounts to "fighting words," and that the person engaging in such speech can be punished if "by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace." Say, a white student stops a black student on campus and utters a racial slur. In that one-on-one confrontation, which could easily come to blows, the offending student could be disciplined under the "fighting words" doctrine for racial harassment.

Over the past 50 years, however, the Court hasn't found the "fighting words" doctrine applicable in any of the hate speech cases that have come before it, since the incidents involved didn't meet the narrow criteria stated above. Ignoring that history, the folks who advocate campus speech codes try to stretch the doctrine's application to fit words or symbols that cause discomfort, offense or emotional pain.

Symbols of hate are constitutionally protected if they're worn or displayed before a general audience in a public place say, in a march or at a rally in a public park. But the First Amendment doesn't protect the use of nonverbal symbols to encroach upon, or desecrate, private property, such as burning a cross on someone's lawn or spray-painting a swastika on the wall of a synagogue or dorm.

In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based on their symbolism, which the ordinance said makes many people feel "anger, alarm or resentment." Instead of prosecuting the cross-burner for the content of his act, the city government could have rightfully tried him under criminal trespass and/or harassment laws.

The Supreme Court has ruled that symbolic expression, whether swastikas, burning crosses or, for that matter, peace signs, is protected by the First Amendment because it's "closely akin to 'pure speech.'" That phrase comes from a landmark 1969 decision in which the Court held that public school students could wear black armbands in school to protest the Vietnam War. And in another landmark ruling, in 1989, the Court upheld the right of an individual to burn the American flag in public as a symbolic expression of disagreement with government policies.

Historically, defamation laws or codes have proven ineffective at best and counterproductive at worst. For one thing, depending on how they're interpreted and enforced, they can actually work against the interests of the people they were ostensibly created to protect, because the ultimate power to decide what speech is offensive and to whom rests with the authorities the government or a college administration not with those who are the alleged victims of hate speech.

In Great Britain, for example, a Racial Relations Act was adopted in 1965 to outlaw racist defamation. But throughout its existence, the Act has largely been used to persecute activists of color, trade unionists and antinuclear protesters, while the racists often white members of Parliament have gone unpunished.

Similarly, under a speech code in effect at the University of Michigan for 18 months, white students in 20 cases charged black students with offensive speech. One of the cases resulted in the punishment of a black student for using the term "white trash" in conversation with a white student. The code was struck down as unconstitutional in 1989. These examples demonstrate that speech codes don't really serve the interests of persecuted groups. The First Amendment does. As one African-American educator observed: "I have always felt as a minority person that we have to protect the rights of all because if we infringe on the rights of any persons, we'll be next."

Speech codes, by simply deterring students from saying out loud what they will continue to think in private, merely drive biases underground where they can't be addressed. In 1990, when Brown University expelled a student for shouting racist epithets one night on the campus, the institution accomplished nothing in the way of exposing the bankruptcy of racist ideas.

State interest in regulating hate-speech,

On the face of it, the First Amendment applies only to the federal congress. It says nothing about what state or local governments may do to restrict speech or the press. Until well into the 20th century, this view of the First Amendment was dominant in the courts. State and local governments could and did take action to restrict speakers, books, films, newspapers, and so on. Restrictions could be based on content and other considerations.

The restrictions of the First Amendment to the federal constitution were not applied to state governments until years later when they were gradually "incorporated" into the 14th amendment that limits action by states. The 14th amendment was adopted in 1868 and states that: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;..." Incorporation expanded the meaning of "due process" and thereby limited what states could do to restrict speech. In Gitlow vs. New York (1925) the Supreme Court decided that freedom guaranteed by the First Amendment could not be limited by the states.

Arguments for and against such laws and codes,

The leading edge of any social or political movement cuts a path to recognition by using radical, sometimes outrageous rhetoric. The rhetoric is there to define or redefine the landscape in terms that suit that particular movement. It is there to shake up the prevailing state of affairs. This has been true in this nation from the time of our own revolution to gain independence from Great Britain to the present. Certainly, the British Crown could have considered the Declaration of Independence a form of hate speech.

The Industrial Workers of the World, the labor movement, the socialist movement, anti-war movements, the Black Power movement, poverty marches, veteran's marches, the temperance crusade, women's liberation movement, the anti-abortion movement -- all used inflammatory rhetoric like a blowtorch to burn a hole in the status quo. To demand that people take sides. And see the world differently.

If hate speech were prohibited, socio-political movements could be crushed before they even started.

The current cliche about "civility" in debate may be fine when we all agree to basic premises and we're all well fed and treated equally. We can afford to be polite to one another and chummy. But civility does not serve the downtrodden, the forgotten, the invisible, the persecuted, the hungry and homeless. Civility in pursuit of justice plays to the power structure's selective deafness. To be effective, the voice must be raised, the tone sharpened, the language at a pitch that slices the air. Americans know this at heart -- we were born in a revolution.

Hate speech is not the cause of bigotry, but arises out of it and a sense of plitical and social powerlessness. Allowing those who feel powerless to speak -- no matter how vehement the language -- salves the speaker. Venting frustration, anger and hurt is an important use of language. It may actually short circuit an inclination for physical violence.

However, there are also people who desagree, arguing that some limitation to free speech is not necessarily a bad thing. For instance, in Only Words," Catherine MacKinnon presents her view of the harm done to women in the making of pornography and through the use of pornography. She also discusses the current interpretation of the First Amendment. Her arguments, while often aimed specifically at pornography, are frequently applicable to hate speech.

In the following passage she describes how she and others argued against hate propaganda in a Canadian court case. He argument stresses the hierarchy or inequality promoted by hate speech.

We argued that group libel, most of it concededly expression, promotes the disadvantage of unequal groups; that group-based enmity, ill will, intolerance, and prejudice are the attitudinal engines of the exclusion, denigration, and subordination that make up and propel social inequality; that without bigotry, social systems of enforced separation, ghettoization, and apartheid would be unnecessary, impossible, and unthinkable; that stereotyping and stigmatization of historically disadvantaged groups through group hate propaganda shape their social image and reputation, which controls their access to opportunities more powerfully than their individual abilities ever do; and that it is impossible for an individual to receive equality of opportunity when surrounded by an atmosphere of group hate.

We argued that group defamation is a verbal form inequality takes.... We argued that group defamation in this sense is not a mere expression of opinion but a practice of discrimination in verbal form, a link in systemic discrimination that keeps target groups in subordinated positions through the promotion of terror, intolerance, degradation, segregation, exclusion, vilification, violence, and genocide. "

First Amendment protection of unpopular or offensive speech, major contributing factor to escalation and destructive confrontation is destructive speech. Destructive speech may take several forms, each requiring a somewhat different treatment strategy. In some cases, it involves the use of provocative and insulting names to refer to opponents. Many groups have extremely insulting words they use to refer to opposing groups. These words are often seen as so offensive that they are viewed as what we call "fighting words," provocations sufficiently serious to elicit a violent reaction.. Also destructive is the use of everyday words to condemn others for their evil views or to make vague threats about how the world would be better off if they were to die or simply disappear. In the United States, we refer to this as "hate speech." There are two principal strategies for controlling this type of speech.

One strategy is to precisely define hate speech and then enact laws and organizational policies to severely punish anyone who uses it. For example, in the United States, universities frequently have speech codes which they use as a basis for expelling students found to be guilty of hate speech. Some political jurisdictions in the United States have tried to enact laws prohibiting hate speech as well. These laws empower the police to investigate alleged incidences of hate speech. Guilty parties are tried and punished according to the law.

Opponents of this approach raise two principle objections. First, hate speech can be very hard to precisely define. Statements which some people regard as hateful, others may regard as an honest effort to raise the tough issues. Hate speech prohibitions can also be used as a basis for the suppressing dissent and harassing people. It is almost always possible to accuse people raising difficult issues of hate speech crimes. Even if they're found to be not guilty, the accusation and the adjudication process can be extremely costly and painful. Hate speech laws also violate freedom of speech ideals which so many societies value. They can also have an extremely chilling effect upon efforts to honestly discuss the tough issues which underlie most conflicts. Often, when hate speech prohibitions are in place, people engaged in serious intergroup conflicts simply refuse to talk at all, preventing constructive problem solving and allowing tensions to build.

The principal alternative is a strategy that systematically tries to answer hate speech with good speech. Here, reasonable people on all sides of the conflict make an individual and collective commitment to speak out against hateful communication. For example, if an extremist belonging to a group makes hateful and racist statements, other members of that group will collectively and publicly repudiate those statements in ways that demonstrate that they are not supported by the vast majority of the population. In cases where the extremist's hateful activity results in personal injury or property damage, members of the group can pool their resources to compensate the victims.

Hateful speech is often not intentional. Frequently, people will say hurtful things without thinking about what they're saying and how it might be interpreted. There are, for example, words that have very different meanings for different groups. There are also translation problems and problems which arise when translators tend to make worse case assumptions in their translations. It is also common for members of a group to compete with one another for group approval by trying to make the most clever and most forceful statements against opponents. In these cases, problems can often be minimized through some type of sensitivity training which helps the parties 1) identify statements which are likely to be interpreted in hurtful or hateful ways, 2) understand the consequences of making such statements, and 3) understand alternate and less destructive ways of raising the difficult issues.

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is "the best protection we have against any Nazi-type regime in this country."

At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected. However, while bigoted, racist, intolerant or offensive expression are protected by the First Amendment, the following kinds of speech are not: fraudulent misrepresentation, defamation, incitement to imminent lawless behavior, invasion of privacy, obscenity, and "fighting words." "Fighting words" has been interpreted to mean words that in themselves "inflict injury" or tend to "incite an immediate breach of peace." Speech that is emotionally upsetting, matter how offensive, does not amount to "fighting words." However, the solicitation of violence, or words that are likely to incite a physical confrontation, such as epithets directed at a particular individual, may be deemed "fighting words."

Sentence enhancement for bias motivated crimes,

Hate crime is defined as "the violence of intolerance and bigotry, intended to hurt and intimidate someone because of their race, ethnicity, national origin, religion, sexual orientation, or disability." "A total of 12,073 law enforcement agencies reported 7,462 hate crime incidents in 2002. The majority of these, 7,459 were single-bias incidents; that is, all the offenses within each incident resulted from one type of bias. The 3 remaining incidents were classified as multiple-bias, meaning that those incidents involved 2 or more offense types motivated by 2 or more biases."

Supreme Court handling of hate speech and hate crime issues

The dominant view of the courts changed in the mid-20th century. State and local restrictions were prohibited and the range of protected speech was expanded. In a series of Supreme Court cases, speakers who deeply offended others or threatened to upset the social patterns desired by others were protected by the courts. This has resulted in the United States having one of the most liberal policies in the world on free expression. On the other hand, the Court has never held that the Constitution establishes an "absolute" right to free speech. In other words, it has never held that Americans have a right to say anything at any time in any place. In general, it has protected some kinds of speech (especially political speech) more than others (such as obscene or commercial speech). It has also upheld reasonable restrictions on the time and place of speech (including political speech). The court has also relied heavily on a distinction between speech and conduct. Although this distinction is not hard and fast, there are clearly cases in which speech is a constituent part of an otherwise illegal act such as price fixing. In these cases, and others, the speech is not protected by the First Amendment.