Free Speech and Hate Speech in the United States

The Limits of Toleration

Chris Demaske

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000203417
• Edition: 1
• Topic: Scienze sociali
• Subtopic: Scienze della comunicazione

Free Speech and Hate Speech in the United States explores the concept and treatment of hate speech in light of escalating social tensions in the global twenty-first century, proposing a shift in emphasis from the negative protection of individual rights toward a more positive support of social equality.

Drawing on Axel Honneth's theory of recognition, the author develops a two-tiered framework for free speech analysis that will promote a strategy for combating hate speech. To illustrate how this framework might impact speech rights in the U.S., she looks specifically at hate speech in the context of symbolic speech, disparaging speech, internet speech and speech on college campuses.

Entering into an ongoing debate about the role of speech in society, this book will be of key importance to First Amendment scholars, and to scholars and students of communication studies, media studies, media law, political science, feminist studies, American studies, and history.

1 Defining Hate Speech

“What we are seeing – and I think it’s very much a result of the tenor at the top – is a normalization of hate speech.”¹ This usage of the term ‘hate speech’ by New Jersey Attorney General Gurbir Grewal in a 2019 interview speaks to both the current concern around the topic and also the spaciousness of the term. ‘Hate speech’ is a messy, highly contested concept used in political theory, legal theory, legal documents, and in simple common usage with its meaning changing depending on the context of who is using it and to what ends. In addition, the term itself is often conflated or confused with other concepts such as hateful speech, racist speech, or harmful speech.² Defining the concept of ‘hate speech’ concretely, then, is a difficult task requiring a clear understanding of the context and purpose at the outset. Defining the term as specifically as possible at the start is of paramount importance for three reasons. First, without proper definition, scholars and lawmakers talk past each other. While words have a defined meaning, that definition is based on assumed context. If each person, however, is applying a different context to the term, then the term’s meaning is altered. In the case of hate speech, for example, without a precise definition, the context of the meaning of the term could span from burning crosses to virulent tweets to micro-aggressions, making it impossible to clearly identify a path forward toward regulation. Second, and connected to the first point, lack of clear definition leaves the recommendation of hate speech restriction easily attacked, dismissed, or misrepresented by free speech scholars. This situation allows critiques of hate speech regulation to rely on fears of over-zealous government suppression to reject outright the possibility of any regulation. Finally, if the end goal, as it is here, is to produce a constitutionally regulable category of speech, then the parameters of what constitutes hate speech must be clearly articulated in order to produce effective laws. Candida Harris et al. explained this concern precisely:

If the role of the law in this context is to impose boundaries on expression, it is essential to be clear on the content or nature of illegitimate or unacceptable expression, and on the boundaries between thought and opinion which remains either unexpressed or privately expressed, and that which in some way enters the public domain.³

In addition, I would include that by developing a concrete definition we can further support the amelioration of the particular evils of hate speech that we are trying to address.

Formulating a definition of hate speech that will hold up to constitutional scrutiny is no easy feat, partly because the term itself is so loaded. However, while many agree that the term is problematic, it remains a useful term to describe the legal concept. As Bhikhu Parekh noted, “Even the term ‘hate speech’ is unsatisfactory because it stresses hatred, an extremely strong emotion. However, given that it is widely used and there is no obvious alternative, I shall continue to use it…”⁴ My intention is to offer a legalistic definition that will work within a U.S. context to enable the courts to think in a more nuanced capacity about how they might assess hate speech restrictions. This definition also requires us to think pointedly about the types of harms caused by hate speech, harms that are distinctly different from the more generic harms treated through incitement or true threats doctrine. Toward that aim, this chapter explores the difficulties and possibilities in developing a constitutionally acceptable approach that will offer meaningful change to the way we treat hate speech in the United States.

Following, I provide an overview of previous work conducted on this topic. While I examine both scholarly interpretations and some legal approaches, this discussion is not intended to be comprehensive, but merely to express the breadth of possible definitions. I focus on three approaches that I think offer some guidance in how we might best proceed. Then, I address the various harms associated with hate speech. Understanding the possible harms that it causes will facilitate refinement of the term to help situate it better within a U.S. free speech context. This positioning also requires an introduction into the foundational principles driving First Amendment analysis to illustrate how hate speech regulation can be reconciled alongside (not in place of) those principles. Finally, I propose a definition of hate speech that I rely on throughout the remaining chapters as the guiding interpretation of the term.

Approaches to Defining Hate Speech

Even within the parameters of the legal definition of the concept, there exist seemingly endless ways of defining the term. For example, one scholar defines it simply as “speech that singles out minorities for abuse and harassment.”⁵ Another scholar, relying on various international regulations, found the common traits to be “the use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them.”⁶ Professors Karmen Erjavec and Melita Poler Kovacic pull from earlier race theorist definitions to construct perhaps one of the most encompassing. They contend that

Hate speech refers to an expression that is abusive, insulting, intimidating, harassing and/or incites to violence, hatred, or discrimination. It is directed against people on the basis of their race, ethnic origin, religion, gender, age, physical condition, disability, sexual orientation, political conviction and so forth.⁷

Political Theorist Jonathan Seglow defined hate speech as speech that “attacks (and is intended to attack) its targets because of their race, ethnicity, gender, sexuality, religion and so on, and which conveys intense feelings of antipathy.”⁸ While seemingly similar to those offered above, Seglow went on to qualify his definition by noting that in order to have a complete definition, you must consider the legal and moral reasons against it.⁹ In other words, we must consider why we think hate speech is morally or socially wrong in order to offer an accurate legal assessment of what should be regulable. For instance, law professor Craig Martin focused on the “dehumanizing” traits of certain hateful language to develop his definition of hate speech.¹⁰ This reliance on the protection of human dignity is embedded in many international and national legal documents outside of the United States. Those pieces of legislation rely on who is targeted, in what circumstances, and through what means.¹¹ For example, the United Nations requires its members to “condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or groups of persons of one colour or ethnic origin, or which attempts to justify or promote racial hatred or discrimination…”¹² I address these international approaches in greater depth in Chapter 3.

Several scholars seek to explain the term by creating categories or focusing on characteristics instead of a mere definition. This approach provides the additional complexity needed to develop a workable legal definition. For example, Parekh says that hate speech has three essential features.¹³ Gregory S. Gordon posits three discreet categories.¹⁴ Caleb Yong recommends that “hate speech” as a category is too broad, and he breaks it down into four main categories of hate speech.¹⁵ Given the importance of understanding both the intricacies and the variations in these types of characterizations, it is worth the time to take a closer look at a few of them.

In his article focused on prosecuting crimes against humanity, Gordon argued that hate speech might qualify as persecution even if it doesn’t directly call for violent action.¹⁶

[I]t is problematic to consider ‘hate speech’ in a vacuum. Unlike incitement to genocide (an inchoate crime), which, as a legal matter, is not necessarily uttered in the context of simultaneous mass violence, hate speech as persecution must be legally tied to contemporaneous, large-scale violence or inhumane treatment (based on the required “attack”).¹⁷

Context, then, is a driving factor in Gordon’s development of categories. His three categories of hate speech are: (1) “general hate speech,” which dehumanizes the victim group but is not necessarily directed at any audience in particular; (2) “harassment,” which is spoken directly to members of the victim group; and (3) “incitement,” which is directed toward third parties and encourages them to take action (whether violent or nonviolent) against members of the victim group.¹⁸ He explained that the first category, general comments not directed at any particular person, is the mildest form of hate speech in which we include racial, ethnic, and religious stereotypes; group libel; and dehumanizing or demonizing members of groups.¹⁹ The second category, comments made directly to someone, are considered “harassment” by Gordon.²⁰ His third category invokes incitement, which he breaks into two subcategories – incitement toward nonviolent action and incitement toward violent action. Of the prior subcategory, he explained: “Incitement to hatred urges the majority group to develop general feelings of animosity toward the victim group. It is similar to group libel but takes a more active tone in encouraging the majority group to despise the minority.”²¹ This type of hate speech could take the form of calling on the majority to refuse restaurant service to certain groups or discourage marriage with members of that group. Gordon concluded that we must balance concerns of the negative effects of hate speech against important First Amendment protections. He advises, however, that “an outright ban on charging nonadvocacy hate speech as persecution ignores the extreme importance of such speech in service of mass atrocity.”²²

While Gordon focused specifically on crimes against humanity and on developing a categorization of hate speech that could be legislated based on those persecution concerns, Yong’s approach applied more to a general discussion of hate speech in relation to established free speech principles.²³ He identified four main categories of hate speech – targeted vilification, diffuse vilification, organi...