Hate speech in the United States

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Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. [1] While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint. [2]

Contents

In academic circles, there has been debate over freedom of speech, hate speech, and hate speech legislation. [3] Other forms of speech have lesser protection under court interpretations of the First Amendment, including commercial speech, "fighting words", and obscenity.

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

In 1942, the issue of group defamation was first most explicitly brought up in Chaplinsky v. New Hampshire , which surrounded the issue of a Jehovah's Witness, Walter Chaplinsky, who verbally attacked a town marshal for restricting his use of a public sidewalk to protest organized religion by calling him a "damned fascist" and "racketeer." [4] Later, when the court heard Beauharnais v. Illinois, [5] establishing the narrow traditional exception to the First Amendment covering those words which by their very utterances tend to inflict injury or tend to incite an immediate breach of the peace. [6]

About a decade later in 1952, in Beauharnais v. Illinois , the Supreme Court upheld the constitutionality of the state of Illinois's group libel law, which punished expression attacking the reputation of racial, ethnic, and religious groups. [7] The defendant was charged for distributing a leaflet that rallied white people in Chicago "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro." [8] Going off Chaplinsky, the court ruled that since "libelous utterances [are not] within the area of constitutionally protected speech," it did not matter that the speech did not incite any direct harm. [4] After the Beauharnais case, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine. [8] Traditionally, however, if the speech did not fall within one of the 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." [9]

This test has been modified very little from its inception in 1969, though it was itself a modification from the earlier clear and present danger standard. Speech promoting violation of the law may still only be restricted when it 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 that speech.

In 1992, in R.A.V. v. City of St. Paul , the issue of targeting hate speech arose again when a group of white teenagers burned a cross in the front yard of an African-American family. The local ordinance in St. Paul, Minnesota, criminalized symbolic expressions tantamount to fighting words, arousing anger on the basis of race (among other protected classes). Associate Justice Antonin Scalia, writing for the Supreme Court, held that the ordinance was unconstitutional as it contravened the First Amendment by focusing on particular groups about whom speech was restricted. Scalia explained that "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." [10] 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. [lower-alpha 1] [ citation needed ] 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 2003, the Supreme Court decided Virginia v. Black . [11] In a 7-2 majority opinion written by Justice Sandra Day O'Connor, the court decided that a law which criminalized public cross-burning was unconstitutional. [12] The court noted that the law would be constitutional if the law included an element of specific intent to inspire fear of bodily harm instead of concluding that cross-burning is prima facie evidence of intent to intimidate. The court's analysis was based upon the First Amendment's free speech clause. [6]

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. Snyder, the father of a soldier whose funeral was protested by Phelps' church, sued Phelps for intentional infliction of emotional distress. The issue presented was whether the First Amendment protected the expressions written on the signs from being the basis for civil liability. 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. 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.'" [13]

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 wrote:

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). [14]

Justice Anthony Kennedy also wrote:

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. [14]

Effectively, the Supreme Court unanimously reaffirmed that there is no 'hate speech' exception to the First Amendment. [14]

Societal implementation

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. [15] These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment. [16] Debate over restriction of "hate speech" in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech. [17]

The speech that hostile work environment harassment law can prohibit varies case by case and is continually under scrutiny by the courts. The U.S. Equal Employment Opportunity Commission (EEOC) states that, "Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA). Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." [18] For example, in Brown Transport Corp. v. Commonwealth, the state of Pennsylvania stated that it was religious harassment to put religious pieces in their employee newsletter and Christian-themed verses on their paychecks. [19] In Olivant v. Department of Environmental Protection, the New Jersey Office of Administrative Law found jokes e-mailed to a workplace department and the judge ruled the jokes to "defame and dishonor men and women based upon their gender, sexual preference, religion, skin pigmentation and national and ethnic origin," thereby making them illegal. [19]

Private regulation

AT&T aimed to regulate hate speech starting in the 1960s, when various people and groups would connect tape recorders to a phone line and when anyone would call that line, the recording would play. [20] These types of phone lines were nicknamed "dial-a-hate". [20] This technique was used by extremists groups like the Connecticut branch of the National Socialist White People's Party and the Ku Klux Klan. [20] These phone lines proved to be popular as a Neo-Nazi group in Philadelphia said they received 3,800 calls per week in 1973 and a Texas branch of the Ku Klux Klan used this method all the way into 1977. [20] Some phone lines like Let Freedom Ring became popular shows that people would call in to hear a new recording every week, much like an early form of a podcast. [20]

AT&T tried several times to end the "dial-a-hate" lines but phone companies and regulators said nothing could be done to shut down the recordings and courts protected them under the First Amendment. Eventually, AT&T required that the operators of the line identify themselves. [20] Between this new AT&T policy and the growing expense of having a phone line, the "dial-a-hate" lines came to an end. Many of the groups found new and less expensive ways of promoting their agenda like sending messages through fax machines and digital bulletin boards. Eventually, the extremist group would spread their messages through the internet and social media.

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. [21] 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. [22] [23] [ page needed ]

International comparisons

See also

Notes

  1. ↑ The Supreme Court has upheld laws that punish hate violence as an aggravating factor in the normal sentencing guidelines. In Wisconsin v. Mitchell, 508 U.S. 476 (1993) a gang of black youths beat up a white teenager because he was white. The Supreme Court upheld the Wisconsin law that considering the hate based crime in an assault as an aggravating factor is not in contravention of the first amendment.

Related Research Articles

Hate speech is a term with varied meaning and has no single, consistent definition. It is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". The Encyclopedia of the American Constitution states that hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There is no single definition of what constitutes "hate" or "disparagement". Legal definitions of hate speech vary from country to country.

<span class="mw-page-title-main">Clear and present danger</span> Free speech doctrine in US constitutional law

Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. Created by Justice Oliver Wendell Holmes Jr. to refine the bad tendency test, it was never fully adopted and both tests were ultimately replaced in 1969 with Brandenburg v. Ohio's "imminent lawless action" test.

<span class="mw-page-title-main">Fighting words</span> Speech or writing intended to incite hatred or violence

Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.

Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck and other defendants, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect Schenck from prosecution, even though, "in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Therefore, Schenck could be punished.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech. The Court reasoned that an ordinance like this constitutes "viewpoint discrimination" which may have the effect of driving certain ideas from the marketplace of ideas.

Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951) were overturned.

Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a clear and present danger to society. While the majority of the Supreme Court Justices voted to uphold the conviction, the ruling has become an important free speech precedent due a concurring opinion by Justice Louis Brandeis recommending new perspectives on criticism of the government by citizens. The ruling was explicitly overruled by Brandenburg v. Ohio in 1969.

Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.

<span class="mw-page-title-main">Freedom of speech in the United States</span>

In the United States, freedom of speech and expression is strongly protected from government restrictions by the First Amendment to the U.S. Constitution, many state constitutions, and state and federal laws. Freedom of speech, also called free speech, means the free and public expression of opinions without censorship, interference and restraint by the government The term "freedom of speech" embedded in the First Amendment encompasses the decision what to say as well as what not to say. The Supreme Court of the United States has recognized several categories of speech that are given lesser or no protection by the First Amendment and has recognized that governments may enact reasonable time, place, or manner restrictions on speech. The First Amendment's constitutional right of free speech, which is applicable to state and local governments under the incorporation doctrine, prevents only government restrictions on speech, not restrictions imposed by private individuals or businesses unless they are acting on behalf of the government. The right of free speech can, however, be lawfully restricted by time, place and manner in limited circumstances. Some laws may restrict the ability of private businesses and individuals from restricting the speech of others, such as employment laws that restrict employers' ability to prevent employees from disclosing their salary to coworkers or attempting to organize a labor union.

Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the criminal arrests of several defendants under the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917. The law made it a criminal offense to criticize the production of war materiel with intent to hinder the progress of American military efforts.

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.

"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the United States Supreme Court case Brandenburg v. Ohio.

<i>Masses Publishing Co. v. Patten</i> 1917 federal district court case in First Amendment law

Masses Publishing Co. v. Patten, 244 F. 535, was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment. The Second Circuit Court of Appeals overturned Hand’s ruling in Masses Publishing Co. v. Patten (1917).

Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

Kunz v. New York, 340 U.S. 290 (1951), was a landmark United States Supreme Court case that held a requirement mandating a permit to speak on religious issues in public was unconstitutional. The case was argued on October 17, 1950, and decided on January 15, 1951, with an 8–1 decision. Chief Justice Vinson delivered the opinion for the Court. Justice Black and Justice Frankfurter concurred in the result only. Justice Jackson dissented.

Speech crimes are certain kinds of speech that are criminalized by promulgated laws or rules. Criminal speech is a direct preemptive restriction on freedom of speech, and the broader concept of freedom of expression.

Snyder v. Phelps, 562 U.S. 443 (2011), is a landmark decision by the Supreme Court of the United States in which the Court held that speech made in a public place on a matter of public concern cannot be the basis of liability for a tort of emotional distress, even if the speech is viewed as offensive or outrageous.

<span class="mw-page-title-main">United States free speech exceptions</span> Categories of free speech not protected by the First Amendment

In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.

<i>Freedom for the Thought That We Hate</i> 2007 non-fiction book

Freedom for the Thought That We Hate: A Biography of the First Amendment is a 2007 non-fiction book by journalist Anthony Lewis about freedom of speech, freedom of the press, freedom of thought, and the First Amendment to the United States Constitution. The book starts by quoting the First Amendment, which prohibits the U.S. Congress from creating legislation which limits free speech or freedom of the press. Lewis traces the evolution of civil liberties in the U.S. through key historical events. He provides an overview of important free speech case law, including U.S. Supreme Court opinions in Schenck v. United States (1919), Whitney v. California (1927), United States v. Schwimmer (1929), New York Times Co. v. Sullivan (1964), and New York Times Co. v. United States (1971).

Hate speech is public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation. Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, colour, national origin, sex, disability, religion, or sexual orientation".

References

  1. ↑ Freedom of Speech (Stanford Encyclopedia of Philosophy)
  2. ↑ Volokh, Eugene (June 19, 2017). "Supreme Court unanimously reaffirms: There is no 'hate speech' exception to the First Amendment". The Washington Post. Retrieved January 17, 2021.
  3. ↑ Herz, Michael; Molnar, Peter, eds. (2012). The content and context of hate speech. Cambridge University Press.
  4. 1 2 Fisch, William B. (2002). "Hate Speech in the Constitutional Law of the United States". The American Journal of Comparative Law. 50: 463–492. doi:10.2307/840886. JSTOR   840886.
  5. ↑ Beauharnais v. People of the State of Illinois. 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952).
  6. 1 2 Head, Tom (July 18, 2019). "6 Major U.S. Supreme Court Hate Speech Cases". ThoughtCo. Retrieved May 6, 2019.
  7. ↑ "Hate Speech and Hate Crime". American Library Association. December 12, 2017. Retrieved November 16, 2018.
  8. 1 2 Stone, Geoffrey (1994). "Hate Speech and the U.S. Constitution". University of Chicago Law School.
  9. ↑ Brandenburg v. Ohio, 395 U.S. 444, at 447 (1969)
  10. ↑ R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
  11. ↑ Virginia v. Black, 538 U.S. 343 (2003).
  12. ↑ "Virginia v. Black". Oyez.
  13. ↑ "Facts and Case Summary: Snyder v. Phelps" . Retrieved October 10, 2014.
  14. 1 2 3 Matal v. Tam, 582 U.S. ___ (2017).
  15. ↑ "Free speech on public college campuses" Archived December 1, 2016, at the Wayback Machine , Kermit L. Hall, First Amendment Center, September 13, 2002
  16. ↑ See, e.g., Doe v. Michigan (1989), UWM Post v. Board of Regents of University of Wisconsin (1991), Dambrot v. Central Michigan University (1995), Corry v. Stanford (1995).
  17. ↑ Kors, Alan Charles (1991). "Harassment policies in the university". Society. 28 (4): 22–30. doi:10.1007/BF02695606. S2CID   143028163.
  18. ↑ "Harassment". www.eeoc.gov. Retrieved November 16, 2018.
  19. 1 2 "What Speech Does "Hostile Work Environment" Harassment Law Restrict?". www2.law.ucla.edu. Retrieved November 16, 2018.
  20. 1 2 3 4 5 6 Melendez, Steven (April 2, 2018). "Before Social Media, Hate Speech and Propaganda Spread by Phone". Fast Company. Retrieved March 2, 2020.
  21. ↑ "NCJRS Abstract - National Criminal Justice Reference Service". www.ncjrs.gov.
  22. ↑ Munro, Victoria (May 12, 2014). Hate Crime in the Media: A History. ABC-CLIO. p. 230.
  23. ↑ Michael, George (September 2, 2003). Confronting Right Wing Extremism and Terrorism in the USA. Routledge. ISBN   9780415315005.
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