The prevalence of hate speech in public discourse challenges our ability to have civil debates about important issues.
RECENTLY, a female protester at a Donald Trump rally in Louisville, Ky. was allegedly called the “N word” and a “c—” by someone in the crowd as she was escorted from the event. In December, the candidate himself proposed a “total and complete shutdown” of our borders to Muslims, which he characterized as “people that believe only in jihad.”
While this kind of talk can and should be considered hate speech, in the United States we must also recognize it as free speech. Despite being morally reprehensible, even the most heinous expression is protected by the First Amendment.
Although many of us associate the phrase “hate speech” with racist, homophobic or misogynistic slurs, U.S. courts have never actually defined the term. Unless expression falls into one of the narrow categories of exception carved out by the courts, which include true threats, incitement and the rarely invoked fighting words, there are essentially no criminal penalties for hate speech. This means the vitriolic rhetoric used by Trump and his supporters will likely continue unchecked throughout his candidacy. Not only is it offensive, the prevalence of hate speech in public discourse challenges our ability to have civil debates about important issues.
In order for hate speech to be punished under the existing federal threats statute, it must contain a specific threat to “injure the person of another.” In an effort to clarify this rule, the U.S. Supreme Court has said that true threats encompass those statements where the speaker means to communicate a serious intent to “commit an act of unlawful violence to a particular individual or group of individuals.” For example, saying “I’m going to my Muslim neighbor’s house on Sherman Avenue tonight at 8 p.m. to hurt her” might constitute a punishable threat. But saying, “I’m going to kill all Muslims” would not.
To prosecute hate speech that incites violence, statements must direct listeners to engage in imminent lawless action and must be likely to produce such action. Under this framework, a white-pride organization can say terrible things like “Death to all Jews” at a rally without it being considered incitement because there is no immediate call to action.
Although incitement convictions are rare, in 2011 white supremacist Bill White of Roanoke, Va., received a 2½-year jail sentence for using his website to encourage violence against the jury foreman in a trial of another neo-Nazi. In this instance, a judge said that posting the jury foreman’s name, address and phone number online was considered incitement to illegal activity. White was found guilty.
This approach differs greatly from that of Canada, Britain, Australia, the Netherlands, South Africa and many other European countries, such as France and Germany. All of these have signed laws or international conventions that prohibit the use of hate speech. According to the Council of Europe’s Protocol to the Convention on Cybercrime, the term “hate speech” refers to all forms of expression that seek to “spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” Violating these bans can result in criminal penalties, including jail time or fines.
In Canada, comedians have been fined for offensive comments made toward lesbians. In Germany, neo-Nazi websites that deny the Holocaust are routinely shut down. In 2013, Mexico’s Supreme Court ruled that using the words “punal” and “maricones,” which translate into a homophobic slur, was unconstitutional.
In the United States, however, hate speech is regularly used publicly and online. President Obama’s 2015 personal Twitter debut was met with more than 150 tweets containing the president’s name and the “N word.” Reddit recently revised its content-management policy to deal with problematic subreddits. Among those removed were /r/CoonTown.
Those who favor laws prohibiting hate speech cite human dignity and the psychological damage it has on its victims, as well as its historical relationship with genocide, as the main reasons for censorship. In the United States, however, free speech is considered an essential component of democracy. In order to govern ourselves effectively, we believe we need access to all ideas regardless of their effect.
In a recent Supreme Court case involving the Westboro Baptist Church, whose members picket the funerals of fallen soldiers with signs reading, “God hates fags,” Chief Justice John Roberts said that hurtful speech on public issues must be protected to ensure that public debate is not stifled. While this argument is valid, it is worth noting that the majority of judges responsible for drawing the fine line between expression and true threats or incitement, have likely not been the targets of hate speech themselves.
The question now is: What do we do about it? We value free expression but loathe government restrictions on speech. How do we address the undeniable impacts of hate speech while preserving the free flow of ideas required for an effective democracy?
Private social-media companies can limit hate speech on their sites. Activist organizations like the Southern Poverty Law Center could lobby to expand the current federal statute to punish threats aimed at broader racial or religious groups. On a more personal level, individuals with the privilege to do so can confront the people in their lives who use hate speech.
Regardless of the approach, the time to act is now. Just because hate speech is legal, does not make it right. This presidential election season, and Trump’s candidacy in particular, highlights the need for greater civility in political discourse. And civility is a choice.
Moving forward we can choose not to support individuals and institutions that condone the use of hate speech.