Is Hate Speech Illegal in the U.S.?
What is Hate Speech?
There isn’t really a definition of hate speech that is accepted universally in international human rights law. The United Nations has defined it as “any kind of communication in speech, writing or behavior, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, color, descent, gender or other identity factor.”
Is Hate Speech Illegal in America?
The U.S. Supreme Court has consistently taken a broad interpretation of hate speech as being within First Amendment rights in this country. The argument is that prohibiting such comments would damage the political and civil discourse that is necessary in a democracy.
An exception is racist or hate speech that is used to cause tangible harm – threats, harassment, incitement and hate crimes. This falls under previously established Supreme Court precedents ruling that there are exceptions to First Amendment protections for speech that would incite people to illegal actions, threaten violence against individuals, or call for some other kinds of harm. The lines can be murky, but generally speech that makes true threats of violence or is likely to directly incite these actions can be consequential.
What are the Penalties for Hate Speech?
There is no official punishment established for speech that is ruled to be excepted from First Amendment protections—the punishment is related to the relevant criminal activity associated with the speech.
What About Hate Speech Online and in Social Media?
In the United States, the 1996 Communications Decency Act exempted tech companies like Facebook and Twitter from liability for speech made by users on their platforms, and gave them rather broad discretionary authority for setting standards and rules for their content.
The Courts have so far refused arguments that social media platforms are public forums, which would require free speech protection. Section 230 of the Communications Decency Act declares that social media platforms are not responsible for content posted by users. These companies can restrict access to or remove content that the provider deems obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. Their policies can set their own terms and conditions.
Much of the recent debate around protected speech and hate speech on social media has focused on whether these companies do have strong enough rules and enforcement in place. It is unclear what actions could be taken to truly influence them.
Does Hate Speech Increase the Likelihood of Violence?
Yes, there is growing evidence that it does.
- A study in Germany found that increases in anti-refugee sentiments on Facebook led to increases in violence against refugees.
- A 2020 news report found that 54 cases involving assaults and threats were linked to individuals who invoked politicians’ use of hate speech.
- An academic study found that rhetoric did not change attitudes but emboldened individuals to express, and act on, pre-existing view they had once hidden.
- A study of violence in Sweden found that hateful speech spurred negative emotions toward the target community.
- Another study of European audiences found that exposure to politicians’ violent rhetoric increased support for political violence.
- Another study found that politicians’ hate speech increases political polarization and this in turn makes domestic terrorism more likely.
History shows that hate speech preceded major tragic genocides, such as the Holocaust in Europe, the Cambodian genocide, the genocide against the Tutsi in Rwanda in 1994, the Srebrenica genocide in Bosnia and Herzegovina, and the Rohingya refugee crisis in Myanmar.
What Increases the Use of Hate Speech?
Acceptance of hate speech, and its proliferation, is encouraged when people in authority use it and seem to endorse it. The impact of their comments is magnified by their position in a phenomenon called the “Overton window,” giving a signal that the issue is now the subject of acceptable discourse. Sanction of these terms by other opinion leaders also promotes acceptance. So does the increasing and visible adoption of these terms and attitudes by groups and individuals and the spreading of their comments in social media and other channels.
What Do Americans Think About Hate Speech?
Polls of Americans show that over 75% believe that heated language makes political violence more likely. The spread of comments that put down or attack individuals and groups, including content shared with millions via social media, is cited as fueling violence against marginalized groups, including mass shootings and attacks on people of different ethnic groups, religions, or sexual orientation.
Should the U.S. Be Stricter in Prohibiting Hate Speech?
The U.S. increasingly stands out in its tolerance of hate speech. Europeans saw the effects of hate speech and bigotry only two generations ago, in a war that destroyed countries and killed millions. Individual European nations have adopted laws prohibiting negative speech targeted at minorities, and in 2008 the European Union enacted a treaty that forbids hate speech. Other countries including Canada, Mexico, and more have laws restricting hate speech. By contrast, hate groups have taken to setting up websites with American URLs to protect their activities under the First Amendment.
Should the U.S. become more proactive in restricting hate speech? It’s unclear how the American courts’ previous rulings might change to allow this to happen. Attempts to regulate hate speech almost always invoke rigorous debates and concerns over free speech and expression. What do you think? Given the evidence that hate speech leads to violence, should it be restricted? And how?
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