The debate surrounding hate speech in the United States largely centers upon freedom of speech, supported by the First Amendment, and civil rights, supported by the equal protection clause of the Fourteenth Amendment. Hate speech can generally be defined as speech directing or reflecting hatred toward an individual or group based upon race, ethnicity, sexual orientation, gender, disability, national origin, or other identities. Public debate centering upon hate speech includes two predominant perspectives. The free speech supporters are opposed to any government restriction on speech, as it is viewed as a violation of the First Amendment. They suggest that any control of free speech, including hate speech, infringes on the rights of individuals to express their views. Any government restriction is perceived as antithetical to a free democratic society. The civil rights supporters state that hate speech infringes upon the rights of the individuals to which speech is directed. They maintain that hate speech limits the ability of such individuals to be free in a democratic society through disrespect, dehumanization, defamation, humiliation, intimidation, harassment, and discrimination.
Those opposed to hate speech maintain that it is usually used against vulnerable minority groups, and the government has the responsibility to maintain equal protection of such groups under the Fourteenth Amendment. Yet, the First Amendment of the U.S. Constitution is the cornerstone of the U.S. Supreme Court’s decision making in hate speech cases, centering on freedom of speech. Over time, the Supreme Court has generated criteria and precedence though major court cases involving hate speech.
The clear and present danger test has had a long-lasting impact on hate speech cases. The clear and present danger test was first coined by Justice Oliver Wendell Holmes, Jr., in 1919. In Whitney v. California (1927), Holmes and Justice Louis Brandeis stated that all cases involving free speech and incitement of violence should be evaluated using the clear and present danger test. Brandeis stated: “Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial to justify the stringent restriction interposed by the legislature.” This case was significant, as the clear and present danger test has been and continues to be used in cases involving hate speech.
Justice Frank Murphy developed the conceptualization of “fighting words” in Chaplinsky v. New Hampshire (1942) by stating: “There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or fighting words—those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.” The “fighting words” qualification has also been used to evaluate hate speech cases, but subsequent Supreme Court cases indicate that such words must accompany a clear and present danger.
The case of Terminiello v. Chicago (1949) provides an example of the use of the clear and present danger test. Father Arthur Terminiello was a Catholic priest who was charged in Chicago with disturbing the peace for giving a speech that included anti-Semitic, xenophobic, and racist remarks that prompted protestors outdoors to produce a riot. The Supreme Court overturned his conviction. Justice William O. Douglas stated that freedom of speech was protected, as there was no substantial evidence of clear and present danger. Thus, moving into the 1950s, it appeared that the courts were upholding free speech, aligning with precedence set by Holmes and Brandeis’s clear and present danger test. Another example is depicted in Brandenburg v. Ohio (1969). Ku Klux Klan (KKK) member Clarence Brandenburg was charged with criminal syndicalism, based on a racist and anti-Semitic KKK speech.
The case was overturned in a Supreme Court ruling. Justice William Brennan argued that there was no tangible evidence of imminent danger to justify regulation of free speech. This 1969 ruling used the “imminent danger” part of the Holmes/ Brandeis clear and present danger test to evaluate hate speech. Use of imminent danger as criteria for hate speech as opposed to clear and present danger has been suggested to provide even more protection for free speech. Further, the National Socialist Party v. Skokie (1977) case involved anti-Semitic hate speech. The Nationalist Socialist Party (NSP) was known for its support of anti-Semitism and white supremacy. It was also known as the American Nazi Party. The NSP publicly stated that it would hold a march in Skokie, Illinois, the home of predominately Jewish residents. Cook County, on behalf of Skokie, denied the NSP’s right to March, display swastikas, and wear military uniforms. The U.S. Supreme Court declared that the NSP had a constitutional right to march under the First Amendment, and upheld its right to free speech. This case, like Brandenburg v. Ohio, indicated that imminent danger was not clearly present.
R.A.V. v. City of St. Paul (1992) involved Justice Murphy’s conceptualization of fighting words to evaluate hate speech. R.A.V challenged an ordinance in St. Paul, Minnesota, that prohibited use of hate-inspired symbols. Robert Victoria was convicted under this ordinance for burning a cross in front of the home of an African American family. The conviction was overturned by the Supreme Court, again because imminent danger was not perceived to be present in that case. Justice Antonin Scalia indicated that “fighting words” could actually be protected by the First Amendment and favored the use of the imminent danger test, emphasizing the mode of speech as a main criterion rather than the content of the speech.
This set further precedent, in that the content of speech is protected, but the mode is not if imminent danger is present. This case also set precedence for Wisconsin v. Mitchell (1993), in which Todd Mitchell and some of his friends, African Americans, beat a white boy after watching the movie Mississippi Burning, which depicted violence against African Americans at the hands of white Americans. Mitchell was noted as stating, “There goes a white boy; go get him!” prior to his beating. The Supreme Court upheld the Wisconsin conviction, as the conviction addressed the mode of the speech and its consequent action directed toward an individual because of his race, rather than the content of Mitchell’s statement.
A more recent and controversial case is that of Snyder v. Phelps (2011). Fred Phelps’s group, the Westboro Baptist Church, held antigay sentiments and worked to gain public attention by picketing at the funerals of fallen Iraq War soldiers. This picketing involved antigay statements and provocative signs, such as “God hates fags.” The family of Lance Corporal Matthew Snyder, whose funeral was picketed by Phelps and his followers, sued Fred Phelps for intentional infliction of emotional distress. The U.S. Supreme Court upheld Phelps’s right to picket. Chief Justice John Roberts indicated that the First Amendment protected the right to free speech under the premise of protecting public debate over public issues.
Thus, in evaluating court cases of the 20th and 21st centuries, it appears that free speech is protected under the First Amendment, with the exception of speech that incites imminent danger. Civil rights supporters argue that such outcomes are at the expense of minority groups, whose rights are undermined by the free speech doctrine. While the federal government holds the First Amendment as the main criteria for hate speech, individual organizations and institutions may make their own policies about hate speech under Title VII of the Civil Rights Act of 1964. Employers can be prosecuted for allowing speech resulting in a hostile or offensive working environment. Similarly, colleges and universities have implemented policies against hate speech. However, like the state rulings depicted above, court cases that derive from these policies are typically overturned if they reach a federal level under the First Amendment right to free speech. Thus, federal government rulings supersede local policy.
For another example, the National Telecommunications and Information Administration (NTIA) disseminated a report in 1993, which supported the clear and present danger test as well as “fighting words” as criteria for determining hate speech. The NTIA defined hate speech in this report as speech that encourages violent acts or hate crimes, or speech that creates a social environment conducive to hate or prejudice. The first part of the definition relates to clear and present danger; however, the second part, related to the social climate of prejudice, would likely be overridden by the First Amendment right to free speech on a federal level if it did not overlap with imminent danger.
Prosecuting attorneys may also use hate speech as evidence related to other crimes in court cases to demonstrate intent or premeditation of crimes. While hate speech itself is not being prosecuted, the mentality of the accused can be implicated by the prosecutor’s depiction of hate speech. For example, in the case of Angie Zapata, her killer used speech indicating hatred toward gay and transgendered people. Zapata was a transgender individual, who made the choice to live as a woman when she was 16 years old. She was 18 years old when she was killed by Allen Andrade. The two met on a social networking site, spent a few days together, and engaged in oral sex. Andrade maintained he did not know Angie was transgender, and upon discovering this he killed her. He was charged with both a bias crime as well as first-degree murder. The jury heard jailhouse phone conversations, including Andrade telling a girlfriend “gay things must die.” Further, he told police he thought he had “killed it,” referring to Zapata. The prosecution used this hate speech to indicate hate/intended malice, as well as a premeditated mentality to kill “gay things,” as opposed to a crime of passion or deception.
- Herz, Michael and Peter Molnar. The Content and Context of Hate Speech: Rethinking Regulation and Responses. Cambridge: Cambridge University Press, 2012.
- Matsuda, Mari, et al. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, CO: Westview Press, 1993.
- Wadron, Jeremy. The Harm in Hate Speech. Cambridge, MA: Harvard University Press, 2012.
- Whillock, Rita and David Slayden. Hate Speech. Thousand Oaks, CA: Sage, 1995.
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