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 Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
to
freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
protected by the
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...
. While "hate speech" is not a legal term in the United States, the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has repeatedly ruled that most of what would qualify as
hate speech Hate speech 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". Hate speech is "usually thoug ...
in other western countries is legally protected
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...
under the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
. In a Supreme Court case on the issue, ''
Matal v. Tam ''Matal v. Tam'', 582 U.S. ___ (2017) (previously known as ''Lee v. Tam'') is a Supreme Court of the United States case that affirmed unanimously the judgment of the United States Court of Appeals for the Federal Circuit that the provisions of the ...
'' (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. In academic circles, there has been debate over
freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...
, hate speech, and hate speech legislation. Other forms of speech have lesser protection under court interpretations of the First Amendment, including
commercial speech In law, commercial speech is speech or writing on behalf of a business with the intent of earning revenue or a profit. It is economic in nature and usually attempts to persuade consumers to purchase the business's product or service. The Supreme ...
and
obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be use ...
.


Constitutional framework

The protection of civil liberties, including freedom of speech, was not written into the original 1788
Constitution of the United States The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
but was added two years later with the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...
, implemented as several amendments to the Constitution. The
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
, 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

Some limits on expression were contemplated by the framers and have been defined by the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
. In 1942, the issue of group defamation was first most explicitly brought up in ''
Chaplinsky v. New Hampshire ''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. Background ...
'', which surrounded the issue of a
Jehovah's Witness Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The group reports a worldwide membership of approximately 8.7 million adherents involved in ev ...
, 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." Later, when the court heard ''Beauharnais v. Illinois'', 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. About a decade later in 1952, in ''
Beauharnais v. Illinois ''Beauharnais v. Illinois'', 343 U.S. 250 (1952), was a case that came before the United States Supreme Court in 1952. It upheld an Illinois law making it illegal to publish or exhibit any writing or picture portraying the "depravity, criminality, ...
'', 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. 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." Going off ''Chaplinsky'', the court ruled that since "libelous utterances
re not Re or RE may refer to: Geography * Re, Norway, a former municipality in Vestfold county, Norway * Re, Vestland, a village in Gloppen municipality, Vestland county, Norway * Re, Piedmont, an Italian municipality * Île de Ré, an island off the w ...
within the area of constitutionally protected speech," it did not matter that the speech did not incite any direct harm. After the ''Beauharnais'' case, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine. 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 The Ku Klux Klan (), commonly shortened to the KKK or the Klan, is an American white supremacist, right-wing terrorist, and hate group whose primary targets are African Americans, Jews, Latinos, Asian Americans, Native Americans, and ...
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 ''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was 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 sp ...
'' 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 "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 Unite ...
and is likely to incite or produce such action." 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 ''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to ''The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in t ...
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 ''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 ...
'', the issue of targeting hate speech arose again when a group of
white White is the lightest color and is achromatic (having no hue). It is the color of objects such as snow, chalk, and milk, and is the opposite of black. White objects fully reflect and scatter all the visible wavelengths of light. White on ...
teenagers burned a cross in the front yard of an
African-American African Americans (also referred to as Black Americans and Afro-Americans) are an Race and ethnicity in the United States, ethnic group consisting of Americans with partial or total ancestry from sub-Saharan Africa. The term "African American ...
family. The local ordinance in
St. Paul Paul; grc, Παῦλος, translit=Paulos; cop, ⲡⲁⲩⲗⲟⲥ; hbo, פאולוס השליח (previously called Saul of Tarsus;; ar, بولس الطرسوسي; grc, Σαῦλος Ταρσεύς, Saũlos Tarseús; tr, Tarsuslu Pavlus; ...
, Minnesota, criminalized symbolic expressions tantamount to
fighting words Fighting words are written or spoken words intended to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction. The term ''fighting words'' is also used in a general sen ...
, arousing anger on the basis of race (among other protected classes).
Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some state ...
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
, 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." 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. 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 ''Virginia v. Black'', 538 U.S. 343 (2003), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that any state statute banning cross burning on the basis that it constitutes ''prima facie'' evidence of ...
''. In a 7-2 majority opinion written by Justice
Sandra Day O'Connor Sandra Day O'Connor (born March 26, 1930) is an American retired attorney and politician who served as the first female associate justice of the Supreme Court of the United States from 1981 to 2006. She was both the first woman nominated and th ...
, the court decided that a law which criminalized public cross-burning was unconstitutional. 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 ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' evidence of intent to intimidate. The court's analysis was based upon the First Amendment's free speech clause. In 2011, the Supreme Court issued their ruling on ''
Snyder v. Phelps ''Snyder v. Phelps'', 562 U.S. 443 (2011), was a landmark decision of the US Supreme Court ruling that speech on a matter of public concern, on a public street, cannot be the basis of liability for a tort of emotional distress, even in the circums ...
,'' which concerned the right of the
Westboro Baptist Church The Westboro Baptist Church (WBC) is a small American, unaffiliated Primitive Baptist church in Topeka, Kansas, founded in 1955 by pastor Fred Phelps. Labeled a hate group, WBC is known for engaging in homophobic and anti-American pickets, as ...
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 Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted ...
. The issue presented was whether the First Amendment protected the expressions written on the signs from being the basis for
civil liability In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...
. In an 8–1 decision the court sided with
Fred Phelps Fred Waldron Phelps Sr. (November 13, 1929 – March 19, 2014) was an American minister who served as the pastor of the Westboro Baptist Church, worked as a civil rights attorney, and ran for statewide election in Kansas. He gained nation ...
, 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.'" In June 2017, the Supreme Court affirmed in a unanimous decision on ''
Matal v. Tam ''Matal v. Tam'', 582 U.S. ___ (2017) (previously known as ''Lee v. Tam'') is a Supreme Court of the United States case that affirmed unanimously the judgment of the United States Court of Appeals for the Federal Circuit that the provisions of the ...
'' that the disparagement clause of the
Lanham Act The Lanham (Trademark) Act (, codified at et seq. () is the primary federal trademark statute of law in the United States. The Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. ...
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 Samuel Anthony Alito Jr. ( ; born April 1, 1950) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George W. Bush on October 31, 2005, and has served ...
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).''Matal v. Tam'', 582 U.S. ___ (2017).
/ref>
Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
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.
Effectively, the Supreme Court unanimously reaffirmed that there is no 'hate speech' exception to the First Amendment.


Societal implementation

In the 1980s and 1990s, more than 350 public universities adopted "
speech code A speech code is any rule or regulation that limits, restricts, or bans speech beyond the strict legal limitations upon freedom of speech or press found in the legal definitions of harassment, slander, libel, and fighting words. Such codes are c ...
s" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment. Debate over restriction of "hate speech" in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech. The speech that
hostile work environment In United States labor law, a hostile work environment exists when one's behavior within a workplace creates an environment that is difficult or uncomfortable for another person to work in, due to illegal discrimination. Common complaints in sexua ...
harassment law can prohibit varies case by case and is continually under scrutiny by the courts. The U.S.
Equal Employment Opportunity Commission The U.S. Equal Employment Opportunity Commission (EEOC) is a federal agency that was established via the Civil Rights Act of 1964 to administer and enforce civil rights laws against workplace discrimination. The EEOC investigates discrimination ...
(EEOC) states that, "Harassment is a form of employment discrimination that violates Title VII of the
Civil Rights Act of 1964 The Civil Rights Act of 1964 () is a landmark civil rights and United States labor law, labor law in the United States that outlaws discrimination based on Race (human categorization), race, Person of color, color, religion, sex, and nationa ...
, the
Age Discrimination in Employment Act of 1967 The Age Discrimination in Employment Act of 1967 (ADEA; to ) is a United States labor law that forbids employment discrimination against anyone, at least 40 years of age, in the United States (see ). In 1967, the bill was signed into law by Pr ...
, (ADEA), and the
Americans with Disabilities Act of 1990 The Americans with Disabilities Act of 1990 or ADA () is a civil rights law that prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 19 ...
, (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." 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. 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.


Private regulation

AT&T AT&T Inc. is an American multinational telecommunications holding company headquartered at Whitacre Tower in Downtown Dallas, Texas. It is the world's largest telecommunications company by revenue and the third largest provider of mobile tel ...
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. These types of phone lines were nicknamed "dial-a-hate". This technique was used by extremists groups like the Connecticut branch of the
National Socialist White People's Party The American Nazi Party (ANP) is an American far-right and neo-Nazi political party founded by George Lincoln Rockwell and headquartered in Arlington, Virginia. The organization was originally named the World Union of Free Enterprise National ...
and the Ku Klux Klan. 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. 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. 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. 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 The National Telecommunications and Information Administration (NTIA) is an agency of the United States Department of Commerce that serves as the President's principal adviser on telecommunications policies pertaining to the United States' ec ...
(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. 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.


International comparisons

*
Volksverhetzung , in English "incitement to hatred" (used also in the official English translation of the German Criminal Code), "incitement of popular hatred", "incitement of the masses", or "instigation of the people", is a concept in German criminal law that ...
, the German criminal delict of "incitement to hatred", often applied to Nazis and neo-fascists but also to holocaust denial and other cases of widespread incitement to hatred
Fact sheet of the European Court of Human Rights on hate speech
2015


See also

*
Censorship in the United States Censorship in the United States involves the suppression of speech or public communication and raises issues of freedom of speech, which is protected by the First Amendment to the United States Constitution. Interpretation of this fundamental ...


Notes


References

{{reflist Freedom of speech in the United States Hate crime Hate speech