Free speech has, like America itself, developed and grown. Alongside this evolution, the idea of free speech without boundaries has come into question–especially when considering offensive speech, ideas, and symbols. This provocative language has divided the nation between those who believe hate speech limitations are necessary and those who believe that Freedom of Speech was created to protect all forms of speech, including the offensive or derogatory. Looking at the issue from the outside, the line between free speech and verbal attacks seems easy to understand. However, when dealing with Constitutional rights, legislature, and the opinion of the American people, that line starts to blur.
Dissecting the Definition
Hate Speech |
(n) speech that is intended to insult, offend, or intimidate a person because of some trait (as race, religion, sexual orientation, national origin, or disability)
Definition courtesy of Merriam-Webster's Dictionary (Hate speech definition) |
When reading the legal definition above, it is important to understand the three criteria that qualify something as "hate speech."
- Hate speech is theoretically limited to "speech." However, the law does not always follow this. With Twitter, texting, and Instagram becoming increasingly popular, written words have become a major platform for hate speech. Also, symbols (like the Nazi Swastika for example), while qualified as "hate symbols," have also been considered components of free speech in cases like the National Socialist Party of America v.Village of Skokie.
- It must be exercised intentionally. The purpose of the speech must include being insulting, offensive, or intimidating. If the words aren't intended to fulfill any of those three categories, then they aren't considered hate speech.
- Hate speech is used to target someone because of a specific trait. These traits include, but are not limited to, race, religion, sexual orientation, national origin, or disability. In short, hate speech must target an identifiable "protected group," or a group of people who are eligible for special legal protection from the government.
Is it legal?
In short, yes, hate speech is legal and under the protection of free speech.
Even though some countries consider hate speech illegal because it encourages discrimination, intimidation and violence, the United States has stood firm with its 1st Amendment definition. Even so, the separation (or lack there of) between hate speech and free speech has been a common argument at the forefront of American legislature for centuries.
Even though some countries consider hate speech illegal because it encourages discrimination, intimidation and violence, the United States has stood firm with its 1st Amendment definition. Even so, the separation (or lack there of) between hate speech and free speech has been a common argument at the forefront of American legislature for centuries.
State Legislature
Image Source: Harris, Courtesy of Caltech Archives
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Terminiello v. Chicago (1949)
A 1949 court case, Terminiello v. Chicago, Fr. Terminiello was tried and convicted on charges that he verbally incited mayhem. The Court ruled in Terminiello's favor with a five-to-four vote. Justice William O. Douglas (pictured at left) wrote the majority opinion for The Court, stating that speech could only be limited if it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest" ("Terminiello"). In the quote below, Justice Douglas explains the reasoning behind the Court's decision. A function of free speech under our system is to invite dispute. It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." |
Brandenburg v. Ohio (1969)
The picture shown at right displays the Ku Klux Klan rally where Clarence Brandenburg, a leader in the KKK, gave a speech that was declared a violation of the Ohio criminal syndicalism statute. The statute outlawed advocating for illegal methods of terrorism as a means of accomplishing reform as well as voluntarily assembling with anyone for the purpose of teaching the principles of criminal syndicalism. The Supreme Court ruled that Ohio had violated Brandenburg's freedom of speech. Brandenburg v. Ohio was a landmark case for the protection of hate speech from both federal as well as state legislature (Warren). Audio Clip Source: "Brandenburg V. Ohio Oral Argument"
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Image Source: "Brandenburg v. Ohio, 1969"
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Federal Legislature
The Sedition Act of 1798
President John Adams passed the Sedition Act of 1798 (pictured at right and quoted below) in anticipation of a war with France. The overall goal was to silence any opposition to the government or criticism of the war effort. According to this Act, if any person were to express criticism of the government, they would face a fine of up to $2,000 and jail time. This attempt at silencing America's freedom of speech was ultimately unsuccessful and protested against by the People. ("The Sedition") "If any person shall write, print, utter, or publish...and false, scandalous and malicious writing or writings against the government of the United States t'hen such person, being thereof convicted before any court of the United States having Jurisdiction thereof, shall be punished" |
Image: "The Sedition"
The Espionage Act of 1917 and The Sedition Act of 1918
Similar to the Sedition Act of 1798, these two federal laws looked to silence criticism of the government during wartime. Americans harbored extreme resentment about being dragged into World War One, but the country needed their support. In order to prevent constant protest, the president at the time, Woodrow Wilson, pushed Congress to pass these laws ("Espionage"). At the time these laws were put into action, they were portrayed as patriotic and supported immensely by propaganda. Because of posters like the one seen to the right, it was considered treasonous to protest against the War or the government. If someone criticized either of these laws, they were labeled as traitors attacking the nation. This mentality took the U.S. by storm and is especially evident when considering the overall response to the Women's Suffrage movement. "I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out" |
Image Source: Kirtland
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The Conversation
Yes, limitations on hate speech should exist.
Taken at a protest against unregulated hate speech, the poster displayed above reflects the idea that these verbal attacks should be limited. This argument is centered around the idea that hate speech and free speech are two separate entities. Those on this side of the debate also insist that hate speech poses a threat to people's right to safety and therefore should be restricted.
Image Source: Sign at Protest
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The Case for Restricting Hate Speech
In the following quote, LA Times writer, Laura Beth Nielsen responds to the racist protests and comments by organizations like the Westboro Baptist Church. She claims that unrestricted freedom of speech leads to the suffering of traditionally marginalized people and, therefore, it should be regulated. "Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world," (Nielsen). Hate Speech is Offensive and Should be Illegal
The Odyssey's Oneeka Kohli calls attention to the idea that the right to free speech does not excuse hate speech. She argues that the First Amendment, when looked at logically, doesn't offer protection to offensive language or the people that use it; instead, it is the inaction of the American people that shields it from regulations. "While I do understand that if hate speech were a legal offense, it would censor racist groups like the KKK, but it doesn't. Why? Because not enough people are standing up against hate speech." (Kohli). |
No, limitations on hate speech should not exist.
Hate Speech is Loathsome, but Trying to Silence it is Dangerous
In light of the protests in Charlottesville, Va. and the resulting unrest, the following quote from the LA Times illustrates the idea that times of violence or turmoil can't be used as an excuse to silence unpopular opinions. "The mere risk of such violence [should not] be used as pretext for denying people the ability to exercise their right to free speech or assembly...Unfortunately, this nation has a history during times of stress of trampling the very rights we supposedly revere," "(Hate Speech is Loathsome"). No, Gov. Dean, There is No 'Hate Speech' Exception to the First Amendment
In response to a tweet by Governor Howard Dean, in which he stated that "hate speech is not protected by the First Amendment,"The Washington Post analyzes one prevalent concept in the debate against hate speech regulations: the First Amendment was created to protect free speech, not conditional speech. "There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas," (Volokh). |
Created in response to the push for hate speech regulations, the illustration pictured above displays the opinion that hate speech can't be limited without destroying free speech in the process. It argues that because this Constitutional right is meant to protect all viewpoints from censorship, it would have to be forfeited in order to silence hate speech.
Image Source: The Urban Politico |