The Dilemma of Hate Speech

By Mustafa Rasheed

In the wake of the white supremacist and neo-Nazi rallies on August 12 in Charlottesville, VA, a wave of response and anger has been directed at Confederate monuments, supremacist groups, and far-right speakers. This anger has manifested into tearing down such monuments as well as banning speakers and supremacist groups in an effort to eradicate their hate speech. 

To preface anything else I write, let me make it clear that I find white supremacist and neo-Nazi speech abhorrent. I find what those groups stand for abhorrent and un-American. 

There is one thing I do find peculiar about this whole episode, and that is hate speech. Can the United States practically ban hate speech? Is it possible to regulate hate speech? What are the ramifications of the government violating viewpoint neutrality? Interestingly enough, this was a topic I researched with extreme depth this past winter in my American Legal Systems and Processes course at Wayne State University. The essay addresses the aforementioned questions through the lens of the First Amendment, “Liberalism, Speech Codes, and Related Problems” by Robert Walmsley University Professor Cass Sunstein at Harvard Law School, several other texts relating to hate speech and viewpoint neutrality, and various hate speech related appellate cases.

Aside for technical revisions, there has been no substantial revision from the paper. I wish to thank Dr. Brad Roth, Professor at Wayne State School of Law and Chair of Wayne State’s Political Science Department for his helpful comments.  The opinions and any errors herein are, of course, solely mine.

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On December 15th, 1791, the First Amendment to the American Constitution was ratified by the-then United States Congress. The text reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (US Const. Amend Ⅰ). The First Amendment is clearly the central text in matters of one of the most controversial legal dilemmas, hate speech. Specifically, whether hate speech is protected by the First Amendment and how to regulate such a broad term. The controversy over hate speech can be boiled down to the two extremes of the debate, viewpoint neutrality, and regulation. Viewpoint neutrality stems out of the reality that the government must assess issues regarding freedom of speech without bias. Therefore, the judiciary must refrain from permitting statutes that discriminate against speech-provocateurs unless such speech directly incites violence or discord. Any deviation from viewpoint neutrality would demand hate speech to be regulated, a task that it is theoretically impossible in general American society. Professor Cass R. Sunstein in, “Liberalism, Speech Codes, and Related Problems” conveys the issue of attempting to regulate hate speech. In general society due to the precedent set by R.A.V vs. St. Paul, Sunstein concludes that even epithets and slurs may be impossible to regulate. However, Sunstein argues that for universities to execute their mission of education, the university can neutrally regulate hate speech with a narrow set of restrictions. The Harm in Hate Speech by James Waldron points out counter arguments to viewpoint neutrality. Charles Lawrence and Gerald Gunther’s, “Prohibiting Racist Speech: A Debate”, illustrate the need for regulation but also the error in violating viewpoint neutrality. Unfortunately, due to issues of breadth such as in the University of Michigan ban and selectivity in R.A.V vs. St. Paul, hate speech cannot be regulated in conjunction with the First Amendment. Even in academic settings, any ban on speech must be extremely narrow such as Stanford proposed. Brandenburg vs. Ohio and Snyder vs. Phelps present further examples where the court has established precedent that challenge statutes that are vague, broad, or selective, and upholding statutes that are not. Sunstein’s analysis and conclusion on viewpoint neutrality, aside from the university where narrow restrictions could be neutrally practiced due to the university’s mission, presents the most realistic and practical means of approaching hate speech in the United States.

Sunstein outlines the issues that are raised when American society seeks to impose hate speech regulation on itself, arguing that the language is overbroad or selective. Sunstein cites a series of cases, particularly three, that prove his point: The University of Michigan ban, R.A.V vs. St. Paul, and the Stanford University ban. The Michigan and R.A.V cases contribute to Sunstein’s analysis on the issue of regulation with respect to breadth and selectivity whereas Stanford contributes to his argument of narrow regulations in universities. The University of Michigan sought to pass a ban on, “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam era veteran status, and that…creates an intimidating, hostile, or demeaning environment for educational pursuits…”. The Michigan ban was invalidated as Sunstein writes, “This broad ban forbids a wide range of statements that are part of the exchange of ideas. It also fails to give people sufficient notice of what statements are allowed” (Sunstein 188). The Michigan ban represents the issue when a body seeks to regulate hate speech in an overly broad fashion. It violates the First Amendment in that it suspends the freedom to engage in debate and discussion in a public fashion. In addition, the excessive breadth of the ban makes ascertaining hate speech difficult. Both of these factors contribute that if there were a proposition to ban free speech, the decision of where to draw the line between free and hate speech would be incredibly obscure in cases where the breadth of the language was excessive. Another situation also arises in language that is vigorously selective. Although Sunstein believes in narrow definitions for regulating hate speech, even speech he deems “low-value” such as “epithets and slurs” may not pass precedent set by the Supreme Court in the 1992 case R.A.V vs. St Paul. Following a cross-burning on a private yard, “the relevant law banned any so-called ‘fighting words’ that produced anger or resentment on the basis of race, religion, or gender” (Sunstein 189). The Supreme Court invalidated this effort to ban hate speech. The court invalidated this ban not because of its excessive breadth, but because “It reflects a decision to single out a certain category of ‘fighting words’, defined in terms of audience reactions to speech about certain topics”(Sunstein 189). In essence, the court observed that it cannot discriminate the speech of racists and permit the speech of others. R.A.V is one of the key roadblocks to any attempt at hate speech regulation. It even de-legitimizes certain “low-value” forms of speech from First Amendment protection. As both excessively broad and provocative “low-value” speech is unprotected by the First Amendment, the question is what can the government do? As the government is bound to maintaining viewpoint neutrality, it must also be aware of what kind of speech would override such neutrality. Where can the government intervene? The government must have overwhelming evidence that the speech that is causing harm shifts from mere provocation. Provocation and incitement are two classifications of speech. Mere provocative speech can annoy and upset others, but incitement is when the speech is advocating violence or breaching the immediate peace. As abhorrent or distasteful “low-value” provocative speech may be, the government must maintain viewpoint neutrality in order to preserve the First Amendment right entitled to all law-abiding Americans. However, when the setting of the debate changes from public society to a university campus, Sunstein argues that it is permissible for a public university to institute narrow restrictions on speech. Sunstein utilizes the Stanford ban as a model for such restrictions. The Stanford ban penalizes efforts to insult or stigmatize individuals and groups for their respective identifications, addresses the inciting individual or group directly, and qualifies such “fighting” words should their utterance inflict injury or breach the peace. Eventually, the Stanford ban was deemed invalid based on a Californian statute that applied the First Amendment to private universities as well. However, Sunstein argues that the Stanford ban is different than what R.A.V set as precedent since this was a university. The opposing viewpoints in this debate is, can the university faculty adequately perform their duties if they engage in hate speech? The answer should be no. This argument is rooted in a university’s obligation to an “educational mission”, as Sunstein puts it. First, the university would place such narrowly defined restrictions in order to maintain a sense of decorum on campus. It would not be an obtuse regulation on hate speech or speech code, “but a general, suitably defined requirement of decency and civility, and this requirement would regulate hate speech as well as other forms of abuse” (Sunstein 192). Second, He cites the situation at the City University of New York which fired over a professor who made inappropriate comments on minorities, pointing out that there are situations where a member of the university may express speech that disrupts their ability to perform their job. Although the counter-argument is that the university does not have the authority to remove faculty for their speech, if faculty of the university cannot perform their jobs adequately due to the reckless nature of their speech, the university has the right to neutrally judge their removal because if such speech is rendering the university unable to properly educate. With narrow restrictions, Sunstein argues that under ordinary circumstances, such interference isn’t necessary and would not infringe upon the freedom of speech. Sunstein effectively contends his conclusion on how the United States ought to go about regulating hate speech in society and the university.

Before building on the argument for viewpoint neutrality, the counter-argument for hate speech regulation ought to be evaluated. James Waldron, in his book The Harm in Hate Speech, presents his case for hate speech legislation. Nigel Warburton writes in his review, “Hate speech, Waldron suggests, can deliver genuine harms, and in specific ways. Unlike Mill, Waldron dismisses the idea that truth will prevail in the marketplace of ideas, and simply denies that the best remedy for bad speech is more speech. Waldron rather wants to curtail expression where it risks undermining individual’s’ dignity.”(Warburton 2013). There are two main arguments against Waldron’s support for hate speech regulation. First, he seeks to tread upon provocateurs’ First Amendment right. Waldron provides the hypothetical of Muslims being heckled walking down the street for their beliefs. He argues, according to Warburton, “This damages individual Muslims. Waldron wants such smears outlawed on account of the personal and social harm they cause” (Warburton 2013). Waldron seeks to convince the reader that such speech causes deep social harm. However, if the legislature and the government authorize statutes that ban speech they decree is “socially harmful”, then the government may decree any speech that they deem is socially harmful to their perception as to what society should be. Also, simply because provocateurs’ speech does the harm with First Amendment protection, the amendment also protects rallies for peace and inclusivity. Waldron also fails to provide specific plans for regulating hate speech. By suggesting to impede upon the speech of Americans Waldron deems harmful and not providing specifics plans to regulate hate speech, Waldron is unsuccessful in debunking viewpoint neutrality.

In “Prohibiting Racist Speech: A Debate”, Charles Lawrence and Gerald Gunther exchange contrasting viewpoints on the freedom of speech and the First Amendment. Lawrence arguing that limits need to be set on racist speech while Gunther arguing the opposite. Both perspectives, while having substance in their arguments, lack the complexities in trumping the necessity of viewpoint neutrality. Lawrence presents a series of arguments advocating increasing limits on the freedom of speech. He disagrees that, “all racist speech that stops short of physical violence must be defended” (Lawrence 196). Lawrence claims that racist speech fits the definition of “fighting words”, that racist insults are unprotected in that they are not intended to spur public discourse rather inflict emotional distress on the individual, and that regulation is an option if society identifies that, “racist speech causes real harm” (Lawrence 196). Lawrence makes broad generalizations regarding the parties involved in racist speech. He seems to argue that racist speech is unprotecting of the First Amendment due to the tremendous emotional and social suffering undertook by minorities. On his claims regarding “racist speech that stops short of physical violence” and the purpose of racist speech, Lawrence appears to ignore the First Amendment rights even of speech provocateurs. R.A.V vs. St. Paul restricts the government’s ability to discriminate specifically against racists for their speech, such an action would violate viewpoint neutrality. Lawrence caricatures those who commit hate speech, assuming the intention of provocateurs is to always cause emotional distress. Hate speech may attack minorities in an effort to broadcast their take on a political or social issue. And even if the intention was to specifically inflict emotional harm, the court can only judge the content of the speech and whether it incited the breach of immediate peace. Lastly, Lawrence claims that racist speech fits the definition of “fighting words”. He cites Chaplinsky v. New Hampshire which set the “fighting words” doctrine. In the case, Justice Frank Murphy writes in the majority opinion, “words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”. Lawrence either misunderstands the definition or assumes that all hate or racist speech are “fighting” words. Due to these generalizations and fallacies, Lawrence’s well-intentioned proposals cannot override government neutrality.

Gunther aligns himself with Sunstein’s conclusion of viewpoint neutrality in general society, however, disagrees that the Stanford regulations be upheld, occupying the other extreme of the First Amendment’s reign. Gunther reiterates the statement on free speech and the First Amendment in several cases such as Chaplinsky and Texas v. Johnson along with individual remarks from several justices, warning of the danger of limiting speech. However, Gunther seeks to merge the general public and a university into the same setting. Gunther seems to disregard that a university setting differs from the general public, in that permitting racist speech on campus disrupts the functions of faculty to do their job. Moreover, settings like a university need to maintain a sense of civil decorum. The language of Stanford ban is not excessively broad, but according to Sunstein, can neutrally make the decision to ban speech, “if and only if it can show that the relevant speech makes it very difficult or impossible for the employee adequately to perform his job” (Sunstein 193). Since the public and the setting of the university are two separate environments, each deserving of its own means of balancing neutrality with hate speech, Gunther cannot claim that the two are each free of speech regulation.

Two cases by the Supreme Court serve to reinforce the precedent of maintaining viewpoint neutrality by invalidating excessive breadth and selective speech. Brandenburg v. Ohio revolved around the First Amendment right of a Ku Klux Klan leader named Clarence Brandenburg, whose speech Ohio decreed in law, advocated, “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and assembling, “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”. Snyder v. Phelps concerns the issue of Matthew Snyder whose funeral was picketed by the Westboro Baptist Church. The court sought to determine whether the church was protected by its provocative presence at the military service. Brandenburg represents the issue of excessive breadth. The Ohio statute refers to matters of an assembly that illegally advocated certain activities. However, the language does not indicate whether such advocating incited violence or an immediate breach of the peace, otherwise known as “fighting words”. When the statute failed to specify this, the Supreme Court ruled that the language was overbroad and that Brandenburg had been acquitted of conviction. Following Brandenburg, the legal doctrine of what constituted “fighting words” was the debate. On the other end of the spectrum, Snyder v. Phelps illustrates the second restriction on banning hate speech under the First Amendment. Sunstein, based on his discussion on R.A.V, writes, “Moreover, the government is sharply constrained in its ability to limit speech on certain subjects” (Sunstein 190). In Snyder v. Phelps, the court understood that it could not discriminate against Westboro for its engagement in hate speech. Westboro claimed that the United States military endorsed homosexual conduct, thus in its protest, sought to provoke speech against the LGBT minority. The judiciary, in this case, could not possibly seek to regulate Westboro’s speech because, as Sunstein writes, “the government must not be impermissibly selective, even if it is regulating low-value speech. Hence in the R.A.V case, the Court concluded that St. Paul had violated the First Amendment, not because it had regulated constitutionally protected speech, but because it had chosen to regulate only “fighting words” of a certain, governmentally disapproved of sort, and allowed the rest to flourish”(Sunstein 190). R.A V applies to the same principle behind the Supreme Court’s majority to side with Westboro in that the court cannot regulate the “fighting words” of the church because it is disapproved of their speech and allowing other speech to flourish. Furthermore, like Brandenburg, the speech of the church was on public issues that are protected by the First Amendment. Justice Roberts in his majority opinion affirmed this, “The ‘content’ of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of ‘purely private concern’” (Roberts 2011). Both cases speak to the practical impossibility of regulating hate speech. Should the court seek to regulate hate speech that is overly broad, vague, or selective, it would inject to court to violate its neutrality and deny provocateurs their First Amendment right.

Chaplinsky, Brandenburg, R.A.V, and Phelps all represent how foul language can cause emotional distress. Sunstein, Lawrence, Gunther, and Waldron all concede of the harmful element in the speech that causes emotional distress. Many view restrictions on hate speech to be a flaw in American jurisprudence. Nonetheless, free speech does not only mean hate speech. Speech that encourages inclusivity, peace, tolerance, is also protected under the First Amendment. Americans who do not come near “fighting” words have as much a right to express their input into the public as provocateurs do. Viewpoint neutrality should not be perceived only as a restraint, but a symbol of impartiality on behalf of the government that believes in the freedom of expression. Speech provocation that is publicly oriented, while it may be distasteful, contributes to the discussion on broad issues which makes First Amendment such an important and unique part of American society.

By Mustafa Rasheed
Image Credit Reuters

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