Hate Speech Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Though hate speech comes in many forms, liberal democracies in the earlier twentieth century concerned themselves primarily with speech that vilified or criticized individuals and groups based on the categories of race, nationality, and religion. In the 1920s, the term race hate was the preferred label for such expression, while group libel emerged as the predominant designation in the 1940s and 1950s. By the 1980s and 1990s, gender and sexual orientation were among items added to the list of categories considered hate speech. Human Rights Watch provides a typical contemporary definition of hate speech as “any for m of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities, and to women.”

Hate speech and its regulation pose a dilemma for liberal democracies. On the one hand, hate speech threatens social order and the security (or sense of security) of targeted individuals and groups. On the other hand, prohibiting hate speech can threaten freedom of speech, especially if such expression is defined too broadly and the causative link between expression and harm is not direct. While liberal democracies have an obligation to protect the security of all their citizens, overly broad hate speech laws can stifle honest criticism of religion and identity groups—a result that is problematic for democratic legitimacy. College speech codes that typically prohibit “demeaning” or “degrading” comments are prime examples of overly broad restrictions.

Restricting Hate Speech

Of the arguments for restricting hate speech, four stand out. First, depending on the circumstances, hate speech can directly harm the safety and security of discrete individuals or groups, mainly when the comments directly incite harmful action or constitute a concrete threat. Second, hate speech is often very offensive, hurting the esteem or sensibilities of its targets, and leading to a sense of exclusion and second-class citizenship. Third, holding long-term consequences, hate speech can contribute to the eventual rise of hate groups and societal discrimination. Some scholars point to the alarming example of Adolph Hitler’s hate speeches in Germany in the 1920s, which they consider an important causative factor in the emergence of national socialism in that country in the 1930s. The fourth argument for restricting hate speech is as much logical or normative as it is empirical: liberal democracies have an obligation to prohibit (or at least no duty to protect) the speech-related activities of individuals and groups who espouse decidedly antidemocratic ideas, and who are dedicated to destroying democratic principles and practices if they were to enter the realm of political power.

The state must decide which harms of hate speech call for remedial action of the criminal law, and which harms can be properly dealt with by voluntary responses in the marketplace of ideas. For example, targeting a swastika, burning cross, or similar symbol at a private residence with the intent to intimidate or instill fear constitutes a threat that merits criminal law enforcement. On the other hand, making a general (nontargeted) racist remark in a newspaper or public forum typically causes a less immediate, discrete harm; this thereby lessens the need for legal intervention. Accordingly, there are two major models of regulation. The group libel model maintains that the criminal law should be concerned with all or most of the four harms. Consequently, this model endorses laws prohibiting general hateful rhetoric that might lead to harmful action down the road (indirect causation is a sufficient basis for prohibition), and offend or demean individuals or groups based on the categories of race, sexual orientation, and similar categories. In the decades following World War II (1939–1945), most liberal democracies reacted to the battle against fascism by adopting a form of this model. Germany’s Basic Law, for example, protects “militant democracy” by prohibiting antidemocratic parties from forming and speaking. In addition, the Canadian Supreme Court ruled in R. v. Keegstra (1990) that the Canadian Charter of Rights and Freedoms does not protect the willful promotion of hatred against an identifiable group because such speech goes against multiculturalism in Canada and the charter’s basic principle of equality. In the first decade of the 2000s, nations such as France have prosecuted Holocaust denial as a form of hate speech.

Free Speech Jurisprudence In The United States

The United States, however, has traveled a different legal path. Many U.S. states passed group libel laws beginning in the 1940s. In 1952, a divided Supreme Court in Beauharnais v. Illinois upheld the constitutionality of Illinois’s typical group libel law, which punished speech that defamed any class of individuals based on race or creed. A few years later, however, the Supreme Court launched what would amount to a sea change in free speech jurisprudence. In reaction to the emerging civil rights movement and other challenges to authority in politics and society, the Court developed a decidedly libertarian free speech jurisprudence (the libertarian model) that liberalized all areas of free speech doctrine.

The Court designed this jurisprudence to protect the speech rights of all dissenters, regardless of the content of their views. Supporters defended the rise of this “viewpoint neutrality” principle because they believed this approach was the best way to accommodate democracy, dissent, and cultural pluralism in the United States. Today, racist and other hateful forms of expression are protected unless they pose a direct harm to individuals or society. The three major forms of unprotected hate speech are concrete threats, direct incitements to imminent lawless action that is likely to occur, and fighting words directed toward an individual (hateful speech likely to lead to an immediate disturbance of the peace). Thus, hate speech is protected by the First Amendment unless it constitutes one of these forms of direct harm. In 1969, for example, the Supreme Court in Brandenburg v. Ohio upheld the First Amendment right of Klan leader Clarence Brandenburg to deliver a racist speech in a cornfield in Ohio. Brandenburg’s call for “vengeance” and race war against blacks and Jews fell short of constituting a direct threat or an incitement to imminent lawless action; nor did Brandenburg’s speech amount to fighting words, for it was not made face-to-face with a hostile target.

During the 1980s, punitive policies based on the group libel model made a comeback of sorts in higher education, as numerous colleges and universities in the United States adopted speech codes punishing expression that demeans people based on race and related categories. Courts have consistently invalidated such codes, though they persist on many campuses. Regardless, this movement has not gained headway in larger society, which remains committed to the libertarian jurisprudence of the Supreme Court.

Critics of the libertarian model continue to maintain that the harms of hate speech merit broader prohibition. Meanwhile, advocates of this model in the United States point out that hate speech and hate are widely condemned in the United States, thereby indicating that the marketplace of ideas is doing its democratic job by providing convincing counterarguments to the views of racists, sexists, homophobes, and their kin. In addition, government and society possess ample alternative tools to fight hate in contexts in which the causative link between speech and action is indirect or attenuated. Education, government programs, surveillance of hate groups, and the rigorous law enforcement for crimes motivated by hate are four such tools.

Bibliography:

Downs, Donald Alexander. Restoring Free Speech and Liberty on Campus. New York: Cambridge University Press, 2006.
Greenawalt, Kent. Speech, Crime, and the Uses of Language. New York: Oxford University Press, 1989.
Matsuda, Mari J., Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder:Westview Press, 1993.
Peleg, Ian, ed. Patterns of Censorship Around the World. Boulder: Westview Press, 1993.
Walker, Samuel. Hate Speech:The History of an American Controversy. Lincoln: University of Nebraska Press, 1994.
Weinstein, James. Pornography, Hate Speech, and the Radical Assault on Free Speech Doctrine. Boulder:Westview Press, 1999.

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