In an ever changing American culture and society, one continuity comes from the US Constitution and the Bill of Rights. And although little change has occurred to the documents, debate still continues as to the definitions of the the first amendment, the right to freedom of speech. The problem that many Americans debate, is whether or not the first amendment protects hate speech. Although the first amendment has consistently been interpreted as protecting hate speech, many young Americans continue the debate in order to prevent their fellow Americans from the pain that comes from hateful speech.
Due to the complicated nature of the issue of hate speech in the United States, there is much debate as to what exactly hate speech is. There is no legal definition in the US as to what constitutes the hateful language that many people (especially those on college campuses), feel needs to be regulated by the state and federal governments. According to the American Library Association (ALA), hate speech is any form of language or expression in which the speaker uses to “vilify, humiliate, or incite hatred against a group or a class of persons” (“Hate Speech and Hate Crime.”). Based off of this definition, many more interpretations need to be made, especially when considering which “groups” deserve to be protected from hate speech. The FBI already defines this group as “a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity” (“Hate Speech and Hate Crime.”) under their qualifications for what groups may be targeted in a “hate crime”.
Many young Americans (especially on college campuses), believe that hate speech needs to be criminalized. The argument is that hate speech causes psychological damage, along with also causing damage to one’s reputation (libel). Research by Johns Hopkins University found that being exposed to racism lead to high blood pressure. Researchers at Cornell were able to link racism to a lower self-perception, along with lower test scores (Berlatsky). This research has helped to make the argument that hate speech does indeed cause harm, and should therefore not be protected under the first amendment. That because it causes harm, it should be prosecuted similarly to other harmful speech such as death threats, libel, slander, and advocating for violence (Berlatsky). With information like this, many European countries, Canada, and even supranational organizations such as the United Nations have introduced legislation that prosecutes hate speech.
After World War II, many European countries, such as the United Kingdom, France, and Germany, started punishing hate speech after what it caused and fueled with the Nazi rise to power and the eventual Holocaust. Examples of this censorship includes Mein Kampf, swastikas, and even the Nazi ideology as a whole being banned (Versteeg). Any possible legislation introduced by Congress would most likely be based around those found in Europe. The United Kingdom for example, has a very expansive and detailed set of laws regarding hate speech. In the country, if a person, play/performance, or published material uses threatening, abusive, or insulting words or behavior and intends to stir up racial/religious/sexual orientation-based hatred, it shall be determined to be criminal hate speech. The consequences of indictment on this offense could lead to a max sentence of seven years in prison (“Hate Speech vs. Free Speech”). When looking at introducing laws, many activists look toward these European countries and their laws, as to what direction and approach congress should take to criminalize harmful hate speech. Although the UK has a strong example on what hate speech should look like, some countries, such as Germany, have trouble defining what hate speech is. In Germany it is illegal to single out any part of the population for insult or other abuse that could breach the peace. Many of these German hate speech laws revolve around what is said on the internet. If a post on Twitter for example contains hate speech, Twitter needs to remove the post in 24 hours or face a massive $60 million fine by the German government. This has caused Twitter and other social media companies to be increasingly careful, as many innocent accounts are suspended. Because of this, the press and many German political parties have been against the laws (“Germany Is Silencing”). Germany shows what can go wrong with hate speech legislation, the fear of many in America.
But the main issue with passing legislation is the 1st amendment. Over the past 25 years, 350 colleges have introduced rules regarding the restriction of hate speech. All of these have since been ruled unconstitutional (Chemerinsky). In Minnesota, the capital of St. Paul passed ordinances that would make it a criminal offense to display any symbol that could cause anger, resentment, or alarm to others on the basis of things such as one’s race or religion. After a simple criminal court case regarding the enforcement of this ordinance, defense lawyers eventually brought the case to the Supreme Court. Here, the case of RAV vs. The City of St. Paul determined that the ordinances were unconstitutional (Cleary). The reason many of these acts against hate speech have been deemed unconstitutional, are in the interpretations of the courts with regard to the first amendment. Interpretations that look to protect any change or modification to the Constitution. The 1st amendment looked to give Americans the freedom to express varying opinions, whether truly right or wrong. Implementing hate speech legislation would effectively distort public debate, by telling people what they should believe in (Stone 690). The Constitution relies on the idea that in a strong market, bad ideas will be thrown out in favor of good ones, which leads in the debate on why no legislation should be enacted regarding hate speech.
In order to get away from the roadblock that is the 1st amendment, the government could also introduce and fund programs regarding the elimination of hate speech. This solution would involve two points of action by the government. The first of which is targeting the groups that produce the most hate speech, such as alt-right extremist groups. Through this targeting, seminars, advertising, and other forms of speech would be needed to show those at risk of committing in acts of hate speech, on why they may feel hateful, along with how their speech and choices harm and impact others (Brown). The second point would be to target speech with speech through the use of counter speech. Encouraging counter speech would allow people and society to make hate speech and other hateful ideas taboo. Counter speech would allow society to determine what speech is acceptable, and what is not. A study done on Twitter looked to decrease racist uses of the n-word through the use of replying with counterspeech. What they found within the first month was that the racist accounts decreased the use of the n-word by 27% (Machkovech). Through studies like these, government programs can be effective in decreasing the amount of hate speech that people use.
In the end, although countries such as those in Europe have passed legislation criminalizing hate speech, the limitation of the first amendment has caused many attempts to pass anti-hate speech legislation to fail. The best approach to any government action would be programs aimed at limiting hate speech through counter speech, or perhaps no government action at all.