Why Hate Speech Is Protected Under The Law

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In this Feb. 1, 2017 file photo, University of California, Berkeley police guard the building where Breitbart News editor Milo Yiannopoulos was to speak. (Ben Margot, File/AP)
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Right-wing commentator Milo Yiannopolous has come under fire on college campuses and elsewhere for expressing views that some call hate speech.

Here & Now’s Jeremy Hobson speaks with Santa Clara University law professor Margaret Russell about what the legal rules on hate speech are.

Interview Highlights

On if there’s a legal definition of hate speech

“There actually is not, and that may be surprising. However, the Supreme Court has actually taken a number of interesting cases in which it has looked at laws that have tried to define hate speech or otherwise curtail it by limiting it in other categories.”

“The basic principle that the Supreme Court has wrestled with under the Free Speech Clause is the principle of not punishing speech because of its message or its viewpoint. That in itself is a violation of the principles of the Constitution. But, for example, in certain areas like obscenity or child pornography or incitement to violence, the Court has made exceptions based on the dangers that those impose. Hate speech has not been considered to be part of those any of those categories in and of itself. … Under the First Amendment, you really have to have another law regulating conduct that’s broken. So, you know, if you are beating somebody up, obviously you can be charged with a hate crime if you’re doing that with the intention of targeting them because of their race. But if you’re walking beside that person on the sidewalk with a sign or handing out flyers that reflect hatred toward that race, that is protected.”

On where the line is drawn for harassment

“Certainly there are situations in which a person could be arrested, not for saying that, not for the message — and this is sort of where the subtler lines are drawn — but because of the presence of other factors. The Supreme Court has said if someone is inciting violence — so, regardless of viewpoint, if someone is speaking in a way and in a context in which they’re encouraging violence that could be imminent, and they are intentionally trying to bring that about, that is known as incitement, and that is not protected speech.”

“‘Fighting words’ is an interesting example of an area of law in which the case that defined it has not been overturned, but it hasn’t particularly been followed very clearly. So fighting words in the 1940s, in a Supreme Court case called Chaplinsky, was defined as ‘words that inflict immediate injury or tend to incite a breach of the peace.’ And fighting words has been used as the rationale for hate speech codes, hate speech regulations on the basis of the argument that hateful words do inflict psychic, emotional and sometimes lead to other kinds of injuries. But fighting words itself requires a face-to-face, a direct confrontation. It requires a setting and a set of facts that wouldn’t apply across the board to regulating hate speech.”

Array

On how slander and libel differ from hate speech

“There are several different areas of the law, including slander and libel, in which speech alone, because of the harm it does, can actually be regulated, right, and it’s not because the viewpoint of the speech. It’s because of damages, injury, reputation, and it is factually false. Hate speech, most of hate speech that I’m aware of, it’s opinion. It may be despicable opinion, but they’re not false statements of fact.”

On hate speech and the law

“I think the law is pretty clear, at least to the extent that hate speech is not considered, by itself, to be unprotected under the First Amendment. So, if people want to enact laws or if people want to prosecute people who violate the law, the prosecution can’t be based on the viewpoint of the person. It has to be based on the underlying crime. … If you think about hate crimes, and many jurisdictions do have hate crimes, hate crimes ordinances, according to the Supreme Court in Wisconsin v. Mitchell, have to punish a particular crime, like assault or battery or threats, and then allow for an enhancement if the motive is to beat somebody up or commit the crime based on their race. I know that sounds like such a, one of those legal niceties, but the difference is basically that when you criminalize consistent with the First Amendment, what you’re criminalizing is the conduct. Not the speech.”

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