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Exploring America’s Protection of Hate Speech

The free speech section of the first amendment of the United States constitution states that “congress shall make no law […] abridging the freedom of speech,” and while legal action can to some extent be taken against speech on multiple accounts (fighting words, defamation, obscenity, false statements of fact, true threats, etc.), hate speech is not included among them. Though the use of hate speech may be used as evidence toward a hate crime (as per Wisconsin v Mitchell), hate speech itself is still largely considered protected, a unique position among western nations. This article will briefly examine the United States’ stance on hate speech, first identifying the Supreme Court’s stance with three key cases, and then examining arguments for and against its protection.

The United States Supreme Court has a long history of cases dealing with hate speech, with one of the more recent coming in the form of Snyder v Phelps 2011, with an eight to one vote protecting the hate speech in question. Fred Phelps, the pastor of Westboro Baptist Church, gathered his followers to picket a military funeral in protest of government decisions to allow homosexual people in the military. Signs were made with such quotes as “God Hates the USA,” “Thank God for Dead Soldiers,” and “Thank God for 9/11,” and were displayed on public land, with picketers complying with all police instructions. Albert Snyder, whose son had been killed on duty in Iraq, sued, arguing that their actions had caused severe emotional distress. Fred Phelps argued that the speech was protected under the first amendment, which the court found, given lack of evidence the protest was merely personal.

An early precedent for this decision can be found in cases like NSPA v Skokie 1977. The National Socialist (Nazi) Party of America wished to hold a march in Skokie, a village in Illinois close to Chicago that housed a large Jewish population, including a number who had been held in concentration camps. The march was to protest regulations on the village’s use of public parks for political assembly, and the members planned to walk by town hall in party uniforms, which had swastikas. The necessary approval for the march was temporarily suspended, a decision that was appealed up to the supreme court. Though the march in Skokie never occurred anyway, the court held by five to four majority that the suspension without immediate appeal restricted the NSPAs first amendment rights. When the appeal came back to the Illinois supreme court, they found that the swastikas on the uniforms were protected by the first amendment.

Another earlier case is found in Terminiello v Chicago 1949, in which Arthur Terminiello was convicted of disorderly conduct. Terminiello had developed a following as a vitriolic speaker, particularly scathing in his anti-semetism. When he went to speak at a Catholic organization, large groups of both followers and protesters developed. Eventually the two groups became violent and Terminiello was arrested and convicted of disorderly conduct. Despite the part his speech took in motivating the riot, the supreme court held by a five to four majority that Terminiello was protected by freedom of speech.

If you wish to look at further cases, there are many more instances where the supreme court has defended hate speech over the first amendment, including ones surrounding KKK speeches (Brandenburg v Ohio 1969). Regardless of your opinion on the matter, the fact that the first amendment guarantees protection for speeches like these is hard to stomach, so what justification is there for this kind of protection?

The writers of the constitution were primarily concerned with one core value, liberty. Liberty in this instance primarily considers the enlightenment value of the freedom to self-determine. Of course there are actions exempt from this freedom, particularly in instances of harm to others, but the protection of individual freedom was considered to be of the utmost importance. The writers of the constitution were also concerned  in an immediate political sense, feeling stifled by English rule of the colonies. The political slogan “no taxation without representation” is a good example of this belief, where the issue was not taxation per se, but the lack of input or representation that the American colonies had in the tax decisions that were affecting them. The right to free speech aims to secure one of the most important elements of this freedom, the right to express oneself in public discourse. This is of particular concern in self-determination as one can express any personal needs, desires, and values, including those encapsulated by hate speech, to the government and your fellow citizens.

Yet this value of liberty and free speech is valued in many countries where hate speech remains restricted. What makes the American system different? One explanation is rooted in the constitution’s historical bias. As a country where slavery remained legal through the civil war, and where legal discrimination continued through the civil rights movement, the founding fathers historical conception of hate speech simply wasn’t developed. Despite the enlightenment values that the constitution took its inspiration from, their intersectional understanding of society simply didn’t exist enough to see how those values ought to be put into practice, overlooking numerous issues of discrimination and oppression. That conception could have continued both through the actions of those unwilling to challenge the constitutional stance on hate speech, and the actions of those in power, primarily straight white men, who stood to benefit.

This perspective is one of the more cynical views of the current stance, and there are many arguments that do exist and are presently used for the protection of hate speech. The primary argument for hate speech’s consideration within the first amendment is built off of two main ideas. The first concerns government abuse of the rule. The role of the constitution is not only as a guide for American politics, but also as a control system to hold the government accountable to its values. If the first amendment is seen to not apply to hate speech, there are concerns that the government may abuse the precedent to restrict other kinds of speech, including those challenging the government itself. This dystopian vision relies on the slippery slope fallacy, that allowing the restriction of hate speech will of course lead to the restriction of speech of other kinds, particularly the political, but it is undeniable that the allowance of such speech and maintaining the all consuming nature of the first amendment keeps such a dystopian future more distant.

This consequence of abusing the precedent does not only need to rely on a vision of the malicious tyrannical government, but could also result from the natural difficulties a well-intentioned government may run into dealing with the line between free speech and restricted hate speech. While the above examples faced by the supreme court may be more clearly hate speech, assuming the government is qualified to identify them as such, restrictions on hate speech may be more difficult to apply in instances of satire, art, or in the reclaiming of hate speech language. This too relies upon a sort of slippery slope, as well as the value judgment that the risk of even minimal restriction on free speech makes the harm that hate speech constitutes worth allowing.

The second idea which motivates the inclusion of hate speech in the free speech category is the concept that free discourse will lead to the truth. The inclusion of hate speech in the national conversation will reveal the faulty nature of that speech and its ideas. So despite the harm hate speech does, the nature of public discourse will be such that hate speech will be vocally disarmed and challenged by counter-speech in a way that reveals its faults. If this concept holds water, paternal government intervention on individual speech comes across as less necessary. Though hate speech may be harmful on certain levels, this concept holds that public discourse by its very nature as truth seeking will handle hate speech appropriately, or at least appropriately enough that paternal intervention and restriction is unnecessary. In fact, some may hold that discourse on the subject is actually the best way to deal with hate speech, addressing and proving it faulty by demonstration instead of forcing its suppression.

This is not to say that all hate speech is automatically legal, as a sufficient condition, but rather that hate speech is not sufficient for illegality. There are many cases in which hate speech is attached to illegal speech or actions. There are many forms of speech which don’t receive the full protection of the first amendment, including threats, defamation, obscenity, and inciting violence. And since, as mentioned in the first paragraph, hate speech may be used as evidence for a criminal act being a hate crime, its use does make a difference in the court of law, so long as it is not itself the basis of the crime. For example, a vandalism case may constitute a hate crime given sufficient evidence of hate speech as motivation or substance. Such concepts have motivated some restrictions in cases like Virginia v Black 2003, where the court ruled against cross burning as an act designed to intimidate. Though it is now considered bad law, Beauharnais v Illinois 1952 considered the dissemination of racist pamphlets “group libel,” and punished it under law relating to the peace and wellbeing of the state.

Despite the fact that legal precedent in the United States is fairly definitive in its stance on the subject, many believe that changes ought to be made. Some of the arguments for this change include the success of hate speech law in other countries, including the UK, helping to assuage the slippery slope argument of an immediate backlash to individual liberty. As these arguments don’t work in a philosophical sense, but rather a practical sense built off existing evidence, they cannot prove the fears of government inability or malice false, but they do create doubt as to its probable reality. 

Many opponents of hate speech’s protection not only affirm the ability of the government to handle the issue, but challenge the ability of public discourse to handle it by itself. One such argument relates to the nature of hate speech as inherently silencing by nature. One of the primary acts that hate speech commits is to challenge the dignity and value of those it is perpetrated against, this is not only harmful to those groups by the direct pain of harm, but implicitly claims that speech from that group should not be valued. For that reason, the freedom of hate speech could be seen as restrictive to the dignity that ought to be given to speech from the attacked groups. 

This is especially so given hate speech with a platform. While it may be true that efficiently regulated speech would allow free discourse to be truth-finding, the reality is that speech is not efficiently regulated, and if hate speech is spoken loudly enough, often enough, it could be taken as truth. By pointing toward this reality, that public discourse cannot be reduced to the equitable enlightenment vision of the founding fathers, the argument pushes that either the argument from free discourse’s truth finding nature be abandoned, or free speech be regulated to that point of equality. The second may be more appealing to those still attached to the constitution’s idea of free speech, as regulation of speech, reserving certain times and space for certain forms of speech, may reserve the most important political elements of free speech, even as individual freedom is limited. There may be problems dealing with the nature of when regulation becomes censorship in and of itself. After all, if you could only engage in certain forms of speech in one hyper-specific location, like some White House broom closet, the regulation would essentially amount to total restriction. Yet these objections seem to fall into another slippery slope argument, and don’t indicate that working out the details is actually impossible, merely a concern.

While the above arguments seem sound, the most damning arguments against hate speech’s protection are related to the nature of hate speech itself. The allowance of hate speech while defamation and threat remain illegal totally misunderstands the harm of hate speech and misattributes political natures to speech that does not deserve that charity. Hate speech does not merely offend, but explicitly works to reduce the human dignity of its object. This is especially true in a world where counter speech may not be given an equal platform. While citizens should have freedom to speak on political issues, the government should also fight to preserve the dignity of all its citizens, with special concern for those who have been historically oppressed.

The issue of the United State’s stance on hate speech is a difficult one, and one which requires not only an in depth look on whether change should take place, but also how any change could take place. This article is not exhaustive by any means, and only constitutes an introduction to this issue. I don’t wish to make your own opinion for you, and encourage you to explore the numerous legal cases and writings which shed light on this interesting subject.


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