Is Hate Speech Legal
There is no hate speech exception to the First Amendment. So, many Americans wonder, “is hate speech legal?”
Contrary to a common misconception, most expression one might identify as hate speech is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government including public colleges and universities.
The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish hate speech. Instead, the Court has come to identify within the First Amendment a broad guarantee of freedom for the thought that we hate, as Justice Oliver Wendell Holmes described the concept in a 1929 dissent. In a 2011 ruling, Chief Justice John Roberts described our national commitment to protecting hate speech in order to preserve a robust democratic dialogue:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, andas it did hereinflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different courseto protect even hurtful speech on public issues to ensure that we do not stifle public debate.
Justice Brandeis argued that our nations founders believed that prohibiting evil counselswhat today we might call hate speechwould backfire:
On The Legal Distinction Between Hate Crimes And Hate Speech
In January this year, a federal grand jury added 13 federal hate crimes and six firearms offenses to the 44 federal counts previously levied against Robert Bowers, the gunman in the 2018 mass shooting in the Tree of Life synagogue in Pittsburgh.
The indictment reflects the United States official stance that a motive of group hatred is of a particularly malicious nature and, therefore, warrants punishing the perpetrator more severely than if the crime had been committed without the motive of group hatred. Prosecutors and judges rely on factors like the language used by the accused and the nature and severity of the attack to determine whether the attack was committed with a motive of group hatred.
Although the increased penalties provided by hate crime laws are motivated by considerations of retributive justice, protecting marginalized groups can also have deterrent and symbolic effects.
In the U.S. the benefits of protecting marginalized groups against hate crimes are thought to outweigh potential negative consequences, but this is not the official stance when it comes to hate speech.
The issue in Matal v. Tam was an anti-discrimination clause that prohibits the registration of trademarks that may disparage any persons, living or dead, institutions, beliefs, or national symbols. Pointing to the expressive function of trademarks, the Justices rejected the anti-discrimination clause as an unconstitutional restriction of viewpoints.
What Can And Can’t You Say In The Town Squares Of The Internet
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|Type of Speech|
Hate speech is speech that offends or attacks people on the basis of race, ethnicity, national origin, religion, gender, sexual orientation, disability, disease, or other traits.
|The First Amendment protects hate speech from government censorship unless that speech incites or is likely to incite imminent lawless action.|
Obscenity is famously hard to define, but in general refers to content that strongly offends the prevalent morality of the time.
Misinformation is false or inaccurate information. Examples of misinformation include false rumors, insults and pranks, while examples of more deliberate disinformation include malicious content such as hoaxes, spearphishing and propaganda. Also referred to as fake news.
|The First Amendment protects false statements of fact .|
Harassment refers to unwanted behavior that makes someone feel degraded, humiliated or offended. We do not define it to include true threats of violence, which are banned by all of the platforms below and are not protected by the First Amendment.
|The First Amendment does not protect true threats from government censorship. But some anti-bullying laws have been struck down for violating the First Amendment.|
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Responding To Hateful Speech And Hate Crime
Reports of hateful speech and hate crimes in libraries is escalating in a time when reported hate crimes are at an all time high. The American Library Associations Office for Intellectual Freedom and Office for Diversity, Literacy and Outreach Services have prepared a white paper, Hateful Conduct in Libraries: Supporting Library Workers and Patrons to provide additional guidance for librarians struggling with issues of hate and intolerance.
In responding to hate speech and hateful conduct, public libraries should be aware that they operate under the First and Fourteenth Amendments and the associated court opinions governing access to the library as a designated public forum. There is an established body of case law holding that public libraries are a type of public forum, and that every person using a public library has a First Amendment right to access, use and take advantage of all the services the public library has to offer, without regard to the person’s background, identity or economic status or their beliefs, opinions, or views. This is consistent with ALA’s support for intellectual freedom, as expressed in ALA’sLibrary Bill of Rights, which states that “a persons right to use a library should not be denied or abridged because of origin, age, background, or views.”
Both the Office for Intellectual Freedom and the Office for Diversity, Literacy, and Outreach Services are available to provide assistance, counsel and support to libraries considering these strategies.
Which Types Of Speech Are Not Protected By The First Amendment
Broadly speaking, the First Amendment protects all types of speech, but exceptions do exist. Historically, the U.S. Supreme Court has defined these exceptions very narrowly, limiting the authority of the government and public officials to prohibit or prosecute speech, even if it appears to fall into one of the categories below.
Types of speech that are not protected by the First Amendment include the following:
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Freedom Of Speech Includes The Right:
- Not to speak .West Virginia Board of Education v. Barnette, 319 U.S. 624 .
- Of students to wear black armbands to school to protest a war .Tinker v. Des Moines, 393 U.S. 503 .
- To use certain offensive words and phrases to convey political messages.Cohen v. California, 403 U.S. 15 .
- To contribute money to political campaigns.Buckley v. Valeo, 424 U.S. 1 .
- To advertise commercial products and professional services .Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 Bates v. State Bar of Arizona, 433 U.S. 350 .
- To engage in symbolic speech, .Texas v. Johnson, 491 U.S. 397 United States v. Eichman, 496 U.S. 310 .
What Are Some Free Speech Protections And Limitations On Campus
- Disruptive Activity: Any act that unreasonably interferes with the rights of others to peaceably assemble or to exercise the right of free speech, disrupts the normal functioning of the University, damages property, or endangers health or safety is specifically prohibited.
- Reasonable Access: The University is required by law to provide and maintain reasonable access to, and exit from any office, classroom, laboratory, or building. This access must not be obstructed at any time.
- Symbolic Protest: Displaying a sign, gesturing, wearing symbolic clothing, or otherwise protesting silently is permissible unless it is a disruptive activity or impedes access to facilities. In addition, such acts should not block the audiences view or prevent the audience from being able to pay attention to a lawful assembly and/or an official University event.
Since ESU is a government entity , we are barred by the Constitution from limiting or addressing speech outside of the above limitations. All government entities can propose limits on speech limit the time, place, or manner in which they occur however, they must be content-neutral. Government entities cannot impose limitations on speech because some people do not like it. The content, or point of view, cannot matter.
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Liberal Theorists Say More Speech Is The First Amendment Remedy For Hate Speech
The traditional liberal position is that speech must be valued as one of the most important elements of a democratic society. Traditional scholars see speech as a fundamental tool for self-realization and social growth and believe that the remedy for troublesome speech is more speech, not more government regulation of speech. For example, liberal theorist Nadine Strossen, relying to some degree on John Stuart Mills connection between speech and the search for truth, argues that restricting hate speech will mask hatred among groups rather than dissipate it.
Freedom Of Speech Vs Hate Speech
Since the Christchurch Mosque attacks the Human Rights Commission, supported by the Federation of Muslim Associations, wants the government to consider changing the law to protect religious groups against hate speech. Justice Minister Andrew Little also would like to speed up the process to review hate crime laws. The National Party supports the review but is cautious about the removal of freedom of speech principles.
A June 2018 media release by the acting Chief Human Rights Commissioner Paula Tesoriero said the Human Rights Commission was not campaigning to limit free speech and neither were they wanting to ban disharmonious or hate speech aimed at certain religions, and to make such comments an offence.
The ground has changed and there is already a wide-ranging public discussion on whether New Zealand should make changes to the law relating to what people can say. What is the current law in New Zealand, and how have other jurisdictions managed matters?
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Hateful Language And Offensive Speech
Hateful language and offensive speech may be subject to punishment in a variety of contexts. However, such speech remains constitutionally protected speech under the First Amendment, as the United States Supreme Court has regularly upheld. While many countries ban hate speech, the U.S. has taken a different path, adopting no legal definition of hate speech. The Supreme Court has consistently ruled that such speech enjoys First Amendment protection unless it is directed to causing imminent violence or unlawful action, or involves true threats against individuals. The principle often invoked instead is that the solution to offensive speech is to engage in counter-speech.
For more background and analysis, interested readers can read Hate: Why We Should Resist it with Free Speech, Not Censorship, by Nadine Strossen, former president of the American Civil Liberties Union . Strossen explains in a June 2018 interview with NPR:
The most effective way to counter the potential negative effects of hate speech which conveys discriminatory or hateful views on the basis of race, religion, gender, and so forth is not through censorship, but rather through more speech. And that censorship of hate speech, no matter how well-intended, has been shown around the world and throughout history to do more harm than good in actually promoting equality, dignity, inclusivity, diversity, and societal harmony .
The Ongoing Challenge To Define Free Speech
Freedom of speech, Supreme Court Justice Benjamin Cardozo declared more than 80 years ago, is the matrix, the indispensable condition of nearly every other form of freedom. Countless other justices, commentators, philosophers, and more have waxed eloquent for decades over the critically important role that freedom of speech plays in promoting and maintaining democracy.
Yet 227 years after the first 10 amendments to the U.S. Constitution were ratified in 1791 as the Bill of Rights, debate continues about the meaning of freedom of speech and its First Amendment companion, freedom of the press.
This issue of Human Rights explores contemporary issues, controversies, and court rulings about freedom of speech and press. This is not meant to be a comprehensive survey of First Amendment developments, but rather a smorgasbord of interesting issues.
The controversy over what many call hate speech is not new, but it is renewed as our nation experiences the Black Lives Matter movement and the Me Too movement. These movements have raised consciousness and promoted national dialogue about racism, sexual harassment, and more. With the raised awareness come increased calls for laws punishing speech that is racially harmful or that is offensive based on gender or gender identity.
The views expressed here are the author’s and do not reflect those of the ABA Board of Governors.
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Are Nonverbal Symbols Such As Swastikas Or Burning Flags Constitutionally Protected
It depends. Symbols of hate are constitutionally protected if theyre worn or displayed before a general audience in a public place for example, in a march, at a rally in a public park or in designated free-speech areas . The Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses and peace signs because such expression is closely akin to pure speech. The courts have held that burning the American flag is protected speech ), and so is wearing armbands to protest a war ), as these actions are considered symbolic expressions of disagreement with government policies.
However, the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual or encroach upon or destroy private property. Examples might include burning a cross on private property or spray-painting swastikas on the library wall. In R.A.V. v. City of St. Paul , for example, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based solely on their symbolism. The courts decision makes clear, however, that the government may prosecute cross-burners under criminal trespass and/or antiharassment laws.
How Do We Balance Potential Conflicts Between Social Justice And Free Speech
From a social justice lens, some questions raised about free speech may include:
- Speak loudly and clearly against expressions of racist, sexist, homophobic, and transphobic speech, as well as other instances of discrimination against marginalized individuals or groups.
- React promptly and firmly to counter acts of discriminatory harassment, discrimination, or intimidation.
- Create forums and workshops to raise awareness and promote dialogue on issues of race, sex, sexual orientation, and gender identity.
- Intensify efforts to ensure broad diversity among the student body, throughout the faculty, and within the college administration.
- Vigilantly defend the equal rights of all speakers and all ideas to be heard, and promote a climate of courageous and uninhibited dialogue and debate open to all views, no matter how controversial.
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If It Is Believed That An Event With A Speaker May Lead To Physical Violence Is That Legal Grounds For The University To Cancel The Event
In general, NC State cannot prevent speech on the grounds that it is likely to provoke a hostile response. Stopping speech before it occurs due to the potential reaction to the speech is often referred to by courts as the hecklers veto and is a form of prior restraint. Prior restraints of speech are almost never allowed.
The university is required to do what it can to protect speakers and prevent disruption or violence. Although the university is committed to fulfilling these obligations, if despite all efforts by the university there is a serious threat to public safety and there is no other alternative, an event can be canceled. NC States primary concern is to protect the safety of its students, faculty and staff. NC States Police Department makes security assessments with input from federal, state and local law enforcement agencies.
What Are Examples Of Protected Speech
Eichman), the Court struck down government bans on “flag desecration.” Other examples of protected symbolic speech include works of art, T-shirt slogans, political buttons, music lyrics and theatrical performances. Government can limit some protected speech by imposing “time, place and manner” restrictions.
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If Someone Is Holding An Event On Campus Can I Protest It
Yes. A part of free speech and expression is the right to engage in peaceful, nonviolent protest. The university expects all who engage in protest activity to do so peacefully and safely. Below are some reminders for how to protest safely:
- Avoid activity that infringes on the rights of others, such as blocking or preventing the movement or access of others.
- Follow the instructions of police officers and university officials, such as staying behind barricades or dispersing from an area declared an unlawful assembly. It is against the law to disobey a lawful order by a police officer, and it is a violation of university policy to disobey a direction from a university official.
- Leave the area where others are engaging in illegal activities and acts of violence. Your presence may be interpreted as participating in a riot or illegal group action. Occupying a building or classroom overnight in protest is prohibited
- Refrain from inciting others to commit acts of violence such as pushing, kicking or spitting on others, destruction of property or other unlawful actions.
- Make informed decisions. If you choose to engage in civil disobedience and get arrested, know the potential consequences.
Speech Codes At Schools And Colleges
Courts have regularly struck down speech codes at public colleges and universities that barred racist or discriminatory comments. Usually, the courts found that the policies were too broad or vague .
The rules are somewhat different for K-12 public schools. Courts have allowed more limits on students’ freedom of expression than on college students or adults in other settings, as part of balancing students rights with schools responsibility to ensure that children have a safe learning environment.
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Does The First Amendment Protect Hate Speech
The First Amendment guarantees the right to freedom of expression. Many Americansfrom college students to journalists to legal scholarsbelieve that guarantee shouldnt apply to hate speech. As they argue, hate speech tramples on the constitutional rights of its targets by insulting, threatening, or silencing them based on characteristics that are protected under antidiscrimination laws . After all, the U.S. Supreme Court has carved out First Amendment exceptions for certain kinds of particularly dangerous or harmful speech. But the Court hasnt recognized an exception for hate speech, unless it falls under one of the other kinds of unprotected expression.