Vile, racist, and bigoted words and thoughts have proliferated since the dawn of social media. Such “hate speech” does real harm. It can be demeaning, deflating, and deafening.
So what do we do about it? What’s the ‘answer’ to hate speech online?
Empirical data even suggests that frequent verbal harassment can manifest itself as serious physical ailments, including high blood pressure, anxiety, depression, and post-traumatic stress disorder.
And yet, the United States stands virtually alone among Western democratic governments by refusing to prohibit nearly all forms of hate speech. Why?
Now is a good time to revisit this issue, as 2019 marks the 100th anniversary of the constitutional underpinnings defining what types of speech are protected under the free speech clause of the First Amendment, and what types of speech may, in fact, be proscribed.
Geoffrey Stone, a constitutional scholar and professor at the University of Chicago Law School, framed the debate over hate speech in a law review article 25 years ago:
“To what extent must a society, to be true to its commitment to free expression, tolerate speech that deliberately insults and degrades a group or individual on the basis of race, religion, gender or ethnic origin? . . . On the other hand, to what extent may a society, in furtherance of its commitment to individual dignity, censor unpleasant racist or sexist or homophobic speech merely because it offends, or even deeply offends, particular groups or individuals?”
Of course, Facebook and Twitter didn’t exist when Stone posed those questions in 1994. Facebook was founded in 2004 and opened to all users in 2006. It reached one billion monthly users in 2012 and two billion monthly users in 2017. Twitter was launched in 2006. Today it has more than 300 million active users.
Hate Speech & The First Amendment
But this is critical to know: the First Amendment – which forbids restrictions on “freedom of speech and of the press” – does not restrict what private companies such as Facebook and Twitter may allow to be published or not published, any more so than what private media companies such as The New York Times, The Wall Street Journal, or The Washington Post may or may not publish. Or what Fox News, CNN, MSNBC or other networks may or may not broadcast. Rather, the First Amendment places restrictions only on the government.
The First Amendment does not restrict what your private employer allows you to say in your office. If you use hate speech in the office, generally speaking, your employer can fire you. You have little recourse. But if you go to a public park and spew hatred, well, generally, that is permissible. You cannot incite imminent violence against any discernable person, but generally speaking you can be disagreeable, obnoxious, racist, homophobic, or otherwise denigrate persons you don’t like.
Many have argued that the “public park” or “public square” scenario is grossly outdated. Guess what? It is. The “public park,” in today’s modern society, is Facebook and the myriad other social media sites that provide by far the greatest platform for discourse in the modern age. But the First Amendment (at least for now) does not – and cannot – place restrictions on what they allow to be posted on their property.
“[P]rivate platforms aren’t really the public square, and internet companies aren’t governments,” explains Daphne Keller, a director at Stanford Law School’s Center for Internet and Society and a former lawyer at Google. “That’s exactly why they are free to do what so many people seem to want: set aside the First Amendment’s rules in favor of new, more restrictive ones.”
So let’s get back to what the First Amendment truly addresses.
Law professor Stone traced the history of U.S. Supreme Court decisions addressing government regulations of speech beginning with the Court’s 1942 decision in Chaplinsky v. New Hampshire. There, the Court identified some categories of speech – the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – that were of such “low” value that they are accorded less than full constitutional protection.
But, Stone noted, the Supreme Court subsumed hate-speech legislation within its more general assumption that most forms of content-based restrictions of speech are presumptively unconstitutional.
“The underlying rationale of this approach is that government cannot be trusted to make judgments about which ideas can and cannot legitimately be aired in public debate,” Stone wrote.
[J]ust as the government cannot constitutionally restrict advocacy of communism, agitation against an on-going war, burning of the American flag, or the expression of ideas that deeply offend others, so too is it foreclosed from restricting speech that insults or degrades particular racial, religious, ethnic or gender groups. The point is not that such expression is harmless. It is, rather, that there are better ways to address the harm than by giving government the power to decide which ideas and opinions the citizens of a free and self-governing nation may and may not express.
Not All Speech Is Protected
In a 1919 opinion, the U.S. Supreme unanimously upheld the conviction of a man who advocated in favor of draft resistance during World War I. But Justice Oliver Wendell Holmes proffered a new test to determine the propriety of banning certain speech.
“The question in every case is whether the words 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 the United States Congress has a right to prevent,” Holmes wrote. “It is a question of proximity and degree.”
Though the “clear and present danger” test was never formally adopted as the law of the land, it laid the groundwork for a new test announced by the Supreme Court 50 years later that remains the law today. Only if speech intentionally promotes “imminent lawless action” may it be prohibited, the Court held in 1969. Importantly, this test only bans speech if the speaker intends to incite a violation of the law that is both imminent and likely. The mere advocacy of illegal action at some indefinite time in the future would not be sufficient to prohibit.
The imminent lawless action test was applied in the case of a St. Paul, Minnesota teenager who set fire to a crudely made cross on the lawn of an African-American family. He was prosecuted and convicted under a local city ordinance that prohibited the abuse of symbols in ways known to arouse anger, alarm, or resentment on the basis of race. The Minnesota Supreme Court upheld the conviction because the ordinance prohibited “fighting words,” a type of speech that is unprotected by the First Amendment.
The U.S. Supreme Court disagreed. It held that the St. Paul ordinance was overbroad because it infringed speech that was simply distasteful and offensive, but did not limit its prohibitions to speech that was imminent and directly threatening.
Professor Stone’s wariness of having the government determine what types of “hate speech” may be proscribed has been echoed by other legal scholars and practitioners. Nadine Strossen, a professor at New York Law School and the former executive director of the American Civil Liberties Union for 17 years, similarly has cautioned about empowering governmental entities to regulate speech.
Defining Hate Speech
In her 2018 book, “Hate: Why We Should Resist It with Free Speech, Not Censorship,” Strossen notes that “hate speech” laws are invariably vague and impermissibly overbroad. Furthermore, they “all center on concepts for subjective judgments, starting with the very concept of ‘hate’ itself. . . . Once government is authorized to suppress speech because of a feared harmful tendency or because of its disfavored, disturbing viewpoint, government has largely unfettered censorial power.”
Strossen and others fully acknowledge that hate speech can have negative psychological and even physical harmful effects on others. But an even greater danger, they have argued, is that permitting government officials to prohibit certain types of speech would create, in Strossen’s words, an “elastic” power that “will be used to silence dissenting ideas, unpopular speakers, and disempowered groups.”
Strossen also stresses that some speech aligned with “hate speech” is, in fact, punishable in certain limited circumstances. Flying the Confederate flag or invoking the Nazi salute is protected. But painting a swastika on the side of a church may be punished. Not necessarily because of the nastiness of that speech, but because it constitutes vandalism. True threats – described as serious expressions of an intent to commit an act of unlawful violence – may also be prohibited and punished. Uttering or publishing false and defamatory speech – known as libel – can also result in a civil award of monetary damages.
The government may also ban certain speech or harmful symbols on government-owned property, as the government has the right to control speech on its own turf. But the First Amendment bars the government from censoring expression of others solely because it is disfavored or repugnant.
Strossen’s preferred solutions to counteract hate speech are to promote more free speech, education, and empowering disparaged persons. Her sentiments were often echoed by President Barack Obama. As Obama said in a 2017 commencement address at Howard University (a school with a largely African American student base), “[Y]ou have the responsibility to speak up in the face of injustice. . . . And you might as well start now, because . . . you will have to deal with ignorance, hatred, racism . . . at every stage of your life.”
The reticence to support hate speech laws is, of course, shared across the political spectrum. Kim R. Holmes, Executive Vice President at The Heritage Foundation, expressed his concern with the very concept of hate speech. “For one thing, it fails to distinguish between legitimate political content, which is protected by the Constitution, and explicit intentions to commit violence, which are not,” Holmes wrote in his book, “The Closing of the Liberal Mind: How Groupthink and Intolerance Define the Left.”
“Ultimately people – individual people – have to make their own moral judgments about how to treat each other with respect and dignity. Having this issue forced on them by law and coercion not only takes away the right of individuals to make that call on their own, it also undermines the moral authority of making the right decision.”
To be sure, there are numerous people, including some prominent legal and social scholars, who believe that words and rhetoric – relayed largely on social media – have become so toxic and even dangerous that the hesitance toward banning certain types of hate speech should be reexamined.
Extremism & ‘Illegal Websites’
Some proposals have a narrow focus. One stems from the danger posed by groups like the Islamic State, which has successfully groomed jihadists over the Internet. “Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way,” wrote University of Chicago Law Professor Eric Posner in Slate.
Posner’s proposal would make it illegal to view websites that glorify the Islamic State or support its recruitment. His plan would impose penalties on a graduated basis, starting with a warning letter, then increasing the penalties to fines or even prison for repeat offenders.
This proposal would expand the currently permissible prohibition on speech that intentionally promotes “imminent lawless action,” as the speech on such websites most likely would constitute speech that “amounted to nothing more than advocacy of illegal action at some indefinite future time,” which the Supreme Court previously has ruled is permissible.
Other proposals are much more expansive, and largely are patterned after the many hate speech laws prevalent in Europe and Canada. As explained by legal philosopher and New York University law professor Jeremy Waldron in his 2012 book, “The Harm of Hate Speech,” “we need to go beyond the description of the speech itself as hateful to an understanding of the way it pollutes the social environment of a community and makes life much more difficult for many of those who live in it. . . . Many advanced democracies willingly embrace the idea of restrictions on hate speech.”
Waldron, a native of New Zealand, delineates the many laws banning certain hate speech of the United States’s neighbors to the north and across the Pacific.
Policies Around The World
Such countries prohibit statements that incite “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace” (Canada); or statements “by which a group of people are threatened, derided or degraded because of their race, color of skin, national or ethnic background” (Denmark); or attacks on “the human dignity of others by insulting, maliciously maligning or defaming segments of the population” (Germany); or “threatening, abusive, or insulting . . . words likely to excite hostility against or bring into contempt any group of persons . . . on the ground of the color, race, or ethnic or national or ethnic origins of the group of persons” (New Zealand); or the use of “threatening, abusive or insulting words or behavior,” when these are intended “to stir up racial hatred,” or when “having regard to all the circumstances racial hatred is likely to be stirred up thereby” (United Kingdom).
As Waldron and others have noted, simply denying the Holocaust happened can amount to a criminal offense in more than a dozen countries in Europe. In the United States, such pronouncements – while deplorable as matters of historical fact – constitute protected free speech. Plenty of harm, but no constitutional foul.
Others, such as Northwestern University sociologist and legal scholar Laura Beth Nielsen, believe restrictions should go much further. She believes judges hesitate when balancing the benefits and harms of hate speech laws in choosing to protect free expression. They do so, she wrote, because they give too little credence to the real and demonstrable harm caused by hate speech.
“If judges are asked to compare the harm of restricting speech – a cherished core constitutional value – to the harm of hurt feelings, judges will rightly choose to protect free expression,” she wrote. “But perhaps it’s nonsense to characterize the nature of the harm as nothing more than an emotional scratch; that’s a reflection of the deep inequalities in our society, and one that demonstrates a profound misunderstanding of how hate speech affects its targets.”
The Effects of Hate
Nielsen noted that empirical data suggests that frequent verbal harassment can lead to profound mental and even physical maladies. Racist hate speech, she wrote, has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder. Women subjected to sexualized speech may development eating disorders.
These negative physical and mental health outcomes – which embody the historical roots of race and gender oppression – mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality. . . . Because we are “free” to be hateful, members of traditionally marginalized groups suffer.
In the early 1990s, more than 360 U.S. colleges and universities adopted hate speech codes that outlawed expression that “stigmatizes,” “demeans,” or “insults” people on the basis of race, religion, gender or sexual orientation. Such codes mirrored the laws of Europe and Canada.
And yet, every code that was challenged in court was declared unconstitutional. Hate speech is protected under the Constitution because “it expresses an idea, albeit a vile idea,” wrote Erwin Chemerinsky, dean and professor of law at the University of California, Berkeley. “Protecting hate speech is necessary because the alternative – granting governments the power to punish speakers they don’t like – risks even greater harm. . . . [C]ensorship is not the answer.”
Debate over hate speech has been waged for more than a hundred years. There is little doubt that the debate will rage on.