What is hate speech? There is no direct definition set by law or the supreme court. What is considered to be hateful can look different to every person, thus everyone’s definition of hate speech might look a little different.
Generally, the public agrees on what is right and wrong, but there are no laws that ban hateful speech itself. Initially, that sounds unjust. Why should people be able to spread racist, sexist or any discriminatory ideas? What is the benefit of words that are only meant to cause pain? There aren’t any. There isn’t any benefit to having these purely hateful ideas spread, but there are possible negative ramifications to having them restricted by the government.
Unfortunately, hate speech is one of the consequences of free speech. Speech cannot be limited based on its message, its ideas, its subject matter, or its content matter. Those types of limitations, especially with hate speech, will always be subjective.
However, the court has established exceptions to freedom of speech. These exceptions are defamation as established in New York Times v. Sullivan, true threats (Watts v. United States), obscenity as a three prong test (Miller v. California), child pornography (New York v. Ferber), commercial advertising limitations (Virginia Pharmacy v. Virginia Citizens Council), limitations for government employees (Pickering v. Board of Education), free speech in schools (Tinker v. Des Moines and Morse v. Fredrick), imminent lawless action (Brandenburg v. Ohio), and there are time, place, and manner restrictions.
None of these directly ban hate speech, but these limitations indirectly affect some hateful speech. Threats that become action have the potential to be classified as a hate crime, in which hate speech would be used as evidence. According to the imminent lawless action test as established in Brandenburg v. Ohio, in order for free speech to be limited it needs to be, “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action.”
The connection between this limitation and hate speech can be clearly drawn. As for limiting speech in schools, hateful speech could easily be banned so long as it is disruptive to the educational process, which would not be hard to prove.
Hate speech or hateful ideas themselves cannot directly be limited, but ideas that lead to action can be punished. The spread of these hateful ideas themselves certainly have dangers and always have the possibility of turning into action, but giving the government the power to limit ideas that they deem as threatening is a slippery slope.
Martin Luther King Jr’s ideas were viewed as hateful by the government. Without there being clearly spelled out hate speech laws, there were still ways for the government to imprison and punish individuals who participated in the civil rights movement because of the ideas they spread. Giving government officials the power to punish solely based on words or the expression of thoughts and not actions has the potential to harm minorities and their viewpoints.
As expressed by Judge Bernard Decker in Collin v. Smith, “[I]t is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.” Allowing the government the power to sensor what we say and hear is a slippery slope that leads to tyranny.
If the government does not police the hate, who will? It becomes our job as American residents to speak up against the ideas and that we deem to be hateful.
Throughout our history we can see people doing just that. When 100 members of the KKK apply to march through the streets of New York, they are met by tens of thousands of counter protesters drowning out their messages. When 15 members of the Westboro Baptist Church spread hate outside of a funeral of a fallen soldier at a grieving family, fifteen thousand citizens and veterans shield the family.
The danger of hate speech is great, but the danger of limiting speech is even greater. It is our job to drown out the ideas that have no benefit or place in our society. “Speech that demeans on the basis of race, ethnicity, gender, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate,” Justice Alito (Matal v. Tam).