Hate speech

SIGNIFICANCE: The United States is faced with a growing divergence in its population in all aspects of life from school curriculum to religion and ever-increasing multicultural influences in art, literature, music, and entertainment. This rapid change has caught many people, both majority and minority group members, unprepared to deal with extremely divergent perspectives, encouraging some to employ what has become known as hate speech.

Generally, hate speech refers to speech that impugns an individual or group based on race, ethnicity, religion, gender, or sexual orientation or uses epithets and pejorative language. The definition of speech for this purpose includes symbols that may represent a particular viewpoint, as the Supreme Court ruled in Tinker v. Des Moines Independent Community School District (1969). Jokes, innuendo, playacting, street jargon or slang terminology, and nonverbal communication employed in relaying messages may also be considered hate speech. One discussion that frequently arises is the dividing line between speech and conduct. It is difficult to distinguish between speech and conduct because human activity generally contains both.

The issue is not necessarily whether the speech offends someone but rather the original intent of the speech. If the speech is presenting ideas, it can be said to be linked to thought or theory. As stated by Justice Oliver Wendell Holmes in Abrams v. United States in 1919, “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out.” This “marketplace of ideas” concept has remained important in the free speech debate since 1919. The core question is what counts as an idea, that is, whether ideas include emotional outbursts that have no basis in truth or sense or only speech asserting intellectual concepts.

The humanistic perspective suggests that identifiable insults should be subject to quick condemnation, that the values of social order and decency supersede or restrict the rights of free speech granted by the First Amendment. Unfortunately, it is not that easy to separate hate speech from other forms of speech; the gray areas far outnumber those that are crystal clear.

The First Amendment

Ultimately, any attempt to regulate speech will lead to a legal challenge and then to a rigorous evaluation by the US Supreme Court of the hate speech regulation based on First Amendment principles. For most of the twentieth century, the Court was increasingly protective of all speech, regardless of the crudeness of its content. As stated by former Supreme Court justice Hugo L. Black, “Freedom of speech is indivisible; unless we protect it for all, we will have it for none.”

Since its 1964 decision in New York Times Company v. Sullivan, the Supreme Court has upheld a legal doctrine known as affirmative First Amendment theory. This theory states that speech is protected against any restraint or sanction, and it regards any infringement on speech with intense suspicion. This theory has six provisions— neutrality, emotion, symbolism, harm, causation, and precision of speech—that govern whether speech should be controlled.

Neutrality, the heart of affirmative First Amendment theory, states that the government cannot restrict speech simply because it disagrees with the message; it must remain neutral. Also of importance is the concept that there is no such thing as a false idea, regardless of how noxious an opinion may seem. The next provision is emotion. Speech not only is intellectual in scope but also can contain passionate portions that could seem vulgar to some. The mere presence of passion or vulgarity in speech does not mean that it has to be controlled. The third provision is symbolism. Speech is not only words but also anything that is equally vivid, including objects, figures, characters, pictures, and numerous other nonverbal communication devices. The fourth provision concerns harm. Speech may be controlled if it causes physical or relational harm. The fifth provision is causation. Speech does not need to be controlled unless the harm it will cause presents a clear and present danger, that is, if the speech is directed toward inciting or producing imminent lawless action and is likely to incite or produce such action. The last provision, precision, dictates that speech, if it meets the above harm and causation tests, may only be controlled by legislation that is exactly worded so that potential speakers will know the exact boundaries of prohibited speech.

Hate Speech Laws

In the public environment, hate speech can be controlled only in limited circumstances. It can be controlled when it is presented to people in a location where they cannot escape its message. The captive audience doctrine allows speech to be restricted in certain environments: residential units, workplaces, and certain educational locales. This doctrine applies only to places where people are required to be or where they perform necessary life tasks; in the workplace, it would apply to the common office/production areas, the lunchrooms, restrooms, and the access and egress points. It would not apply to the offices of individuals or the lockers of production workers. On a college campus, it would apply in the dormitories, bath areas, food service areas, classrooms, and public office areas. It would not apply to the auditorium, the open grounds of the campus, or a faculty office. Many colleges have tried unsuccessfully to restrict hate speech on the entire campus through conduct codes. In the twenty-first century, colleges were still struggling to find a balance between ensuring that their campuses were safe, multicultural areas for all students and faculty, while still fostering their characteristic commitment to liberal freedoms, especially freedom of speech. The issue sparked further national debate following the resignation of University of Missouri system president Tim Wolfe. He had stepped down from his post after passionate student protests calling for his resignation due to his failure to react following reports of racial slurs and the use of an offensive symbol in the form of a swastika on campus.

Hate speech can also be sanctioned when it contains “fighting words.” This principle identifies as unprotected those words that originate in a face-to-face confrontation and are so inflammatory that they would be likely to produce a violent response from the average person. Legislatures must produce laws that specifically describe particular circumstances that would meet the criteria for this doctrine. The Ohio Revised Code, 2917.01, requires that a person “knowingly engage in conduct designed to urge or incite another to commit an offense of violence, under circumstances where such conduct creates a clear and present danger that an offense of violence will result, or such conduct proximately results in an offense of violence.” The Supreme Court approved of this exception in the case of Chaplinsky v. New Hampshire in 1941. It remains part of most criminal codes as an arrestable offense.

Hate speech can be punished when it is evidence of illegal discriminatory conduct. People who are responsible under one of the many laws or provisions that regulate discriminatory activity—fair housing law, employment law, sexual harassment law, and hate crime law, to name a few—may have their speech used as evidence of discriminatory tendencies in the pursuance of civil, criminal, or administrative relief. This exception was clearly illustrated by the Supreme Court in the 1993 case of Wisconsin v. Mitchell. Todd Mitchell, after watching Mississippi Burning (the 1988 film dealing with desegregation in the South), walked out onto the street with his friends. Mitchell, an African American, was in a highly emotional state. He saw a White man walking on the sidewalk and, while shouting racial epithets at the man, urged his friends to attack him. He was convicted under a Wisconsin statute that added to the sentence for a crime when it contained a hate component. This type of sentence enhancement has become part of most states’ hate-crime legislation. It was upheld by the Supreme Court because Mitchell’s hate speech displayed beliefs that motivated him to action, or conduct, not mere expression. The case thus differed from statutes that punish just the speech component—for example, placing a burning cross on a lawn, as in R.A.V. v. City of St. Paul (1992).

In April 2014, Senator Edward J. Markey sponsored a bill that called for the examination of hate crimes and hate speech on the internet, television, and radio. The bill aimed to study the role of telecommunications in encouraging hate crimes, but it did not gain traction in the House. Policies around hate speech and its use online, particularly on social media platforms, continued to be a source of debate in the 2020s. In 2024, for example, Meta updated its hate speech policy, sparking outrage from advocacy groups who charged that the changes—which allowed users to accuse LGBTQ individuals of being mentally ill based on their sexuality or gender identity—would normalize hate speech, endanger marginalized communities, and threaten democracy.

Bibliography

Dees, Morris. Gathering Storm. Harper, 1996.

Herz, Michael, and Peter Molnar. The Content and Context of Hate Speech: Rethinking Regulation and Responses. Cambridge UP, 2012.

Lewis, Anthony. Make No Law: The Sullivan Case and the First Amendment. Random, 1991.

Shelton, Lindsey. "How Meta's Policy Updates Could Encourage Hate and Threaten Democracy." Southern Poverty Law Center, 24 Jan. 2025, www.splcenter.org/resources/stories/meta-policy-updates-could-encourage-hate-threaten-democracy/. Accessed 30 Jan. 2025.

Smith, Paul, and Robert Allen Warrior. Like a Hurricane. New Press, 1996.

Svrluga, Susan, and Nick Anderson. "Can Colleges Protect Free Speech While Also Curbing Voices of Hate?" The Washington Post, 10 Nov. 2015, www.washingtonpost.com/local/education/can-colleges-protect-free-speech-while-curbing-voices-of-hate/2015/11/10/daac2b8c-87ca-11e5-be39-0034bb576eee‗story.html. Accessed 26 Apr. 2017.

Walker, Samuel. Hate Speech: The History of an American Controversy. U of Nebraska P, 1994.