Primer: Hate Speech
Free speech is often described as the cornerstone of American liberty. Madison’s First Amendment is, after all, first in order and in esteem. Yet the unconstrained right to speak one’s mind, so central to the American ethos, raises a difficult question: should it extend even to words that wound, exclude, and divide?
The United Nations defines hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”
Legal definitions, however, vary widely. In Germany, haunted by the legacy of Nazism, the legal concept of Volksverhetzung, incitement of popular hatred, criminalizes speech that seeks to stir hostility against parts of the population. Here, the “hate” in hate speech is not merely to insult but to do so through prejudice, with the intent or effect of excluding, stigmatizing, or harming.
The United States stands as a notable outlier among liberal democracies. Since the mid-20th century, American courts have afforded unusually broad protection even to offensive and hateful expression. But this was not always the case. In Schenck v. United States (1919), the Supreme Court upheld restrictions on seditious speech under the standard that it presented a “clear and present danger”, leading to the imprisonment of many anti-war activists such as labor leader Eugene. It was only half a century later, in Brandenburg v. Ohio (1969), that the Court shifted course. In a unanimous opinion, the most liberal court in American history overturned the conviction of a Ku Klux Klan leader, holding that speech may only be restricted when it is intended to incite” imminent lawless action” and is likely to produce such action.
Supporters of protecting hate speech argue that once governments are empowered to censor expression on the grounds of offensiveness, even with the best of intentions, further and less justifiable restrictions are bound to follow. What might begin as a narrow definition of “hate speech,” the censorship of which might seem or even be beneficial to society, can gradually expand until unpopular political views are silenced under the pretense of stamping out bigotry. Prohibition and censorship, they claim, are sickly alternatives to discourse and rebuttal. As Justice Louis Brandeis wrote in Whitney v. California (1927), “the remedy [to harmful speech] to be applied is more speech, not enforced silence.”
Critics, however, contend that this argument underestimates the real harms of hate speech. Words can inflict injury as surely as actions: they can intimidate, isolate, and dehumanize. A society that tolerates hate speech, they argue, is one in which the targets of that speech are less able to participate as equals in civic life. And as a matter of historical truth, unrestrained hate speech has often fed into discrimination, persecution, and even genocide. Permitting it in the name of liberty risks normalizing hatred until it becomes a force for violence. The International Covenant on Civil and Political Rights, for example, permits restrictions on speech that incites discrimination, hostility, or violence.
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"Free speech = reason = progress" by Simon Gibbs is licensed under CC BY-NC-ND 2.0.