Do all citizens have a guaranteed First Amendment right to say the most hateful, despicable and derogatory things about or to another person without repercussion? According to the United States Supreme Court, the basic premise is yes, but the verbiage must fall within certain parameters in which it is to be covered. Hate speech does not have a legal definition as defined by the laws in the United States. However, a common interpretation of hate speech can be summed up as follows, “Speech that demeans on the basis of race, ethnicity, gender, religion, 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” (Matal v. Tam, 582 U.S. 2017).”
Hate speech, as previously identified, is a protected free speech according to the United States Supreme Court, no matter what people in today’s society may say or have definitive feelings on. Offensive points of view, no matter how offensive, are protected under the First Amendment, as long as they are not promoting violence. Hate speech is a topic that is rather top of mind in today’s society. From politics to schoolyard antics, the idea that just because something is offensive to some segment or group in society and people are not allowed to say it, is an idea that people are increasingly choosing to believe at an alarming rate.
One of the cases that was decided soundly on the merits of the First Amendment and reinforced that hate speech is legal was Matal Interim Director, United States Patent and Trademark Office V Tam (Matal v. Tam, 582 U.S. 2017). This case was brought about by Simon Tam and his band “The Slants”, after he sought to trademark the name of his band to try and “reclaim” the word to change the general perception and negativity associated with the derogatory term aimed at the Asian population. When Tam had tried to register the band name with the U.S. Trademark Office (USTO), the office denied the application sighting that it was “disparaging towards persons of Asian descent.” Further, to justify its denial of the trademark, the USTO cited the “Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that consist of or comprise immoral, deceptive, or scandalous matter”.
After this initial ruling, Tam then appealed to the U.S. Federal Court of Appeals. They too denied the application and stated that the trademark officials were well within their rights to deny the application. This set the stage for a last ditch attempt at the United States Supreme Court for Tam. Less than 1% of all cases filed each year with the U.S. Supreme Court, out of the 7,000-8,000, are ever heard. Tam’s case was selected to be heard. The Supreme Court reviewed the case and found that the trademark office was incorrect in denying Tam’s application to name his band “The Slants”. Additionally, the majority opinion found that the Disparagement Clause that had previously been cited to deny Tam’s application to be considered ultimately, a violation of the First Amendment.
This case brings up the use of hate speech in relation to today’s society and where and how it is used. With that being said, hate speech is one of those things that is a relatively new, but a prevalent concept in our interactions in society. People, not just United States citizens, want speech that they do not like or agree with banned. Ironically, they also want to be able to say the same types of things to those that do not agree with them, under their First Amendment rights, no matter how inflammatory their remarks might be. These people do not seem to understand the concept of the First Amendment and that it covers the many sides of any issue. There are words in society, while are not necessarily accepted in everyday speech, are still allowed to be said. People over the ages have not seemed to understand that freedom of speech is not freedom from consequences. Meaning that your words still have meaning and that they have consequences for being said in the first place.
Since Matal v. Tam is a very recent case having been adjudicated in 2017, helps to reinforce the idea that no matter how much you do not like what people are saying and no matter what it is about, individuals are well within their rights to say it as long as it does not incite violence against any one segment or particular individual. More and more people want speech censored in every aspect of life, whether or not it is deemed to be “hate speech” or just simply something that they do not agree with it. This goes against the very core of what the United States was founded on. The divisive rhetoric in politics, schools, and seemingly innocent conversations amongst peers, emphasize that people in the US are clearly not in agreement on what should or should not be supported under the First Amendment. The recent appointment of Judge Brett Kavanaugh to the United States Supreme Court depicts this perfectly. Either side was very passionate about their viewpoint and whom they were to believe. The rhetoric was explosively filled with vile depictions of him and her both verbally, written and acted out by protestors. Both sides accused the other side of malicious intent bound to incite riotous behavior, but both protected by their First Amendment rights.
People are seemingly willing to abandon all civility in the name of attempting to censor people’s rights to speak. These people justify this by saying “Hate Speech” marginalizes a group of people or specific individuals. Does this idea of protecting one group of people, not in turn marginalize the same people that use this hate speech in expression of their First Amendment rights?
Hate Speech is one of those things, that as long as you live in a place where free speech and freedom of the press are a guarantee right, you must be willing to hear and read things that may be offensive or differ from what you consider to be appropriate or hateful. This case specifically illustrates how earlier in the 21th century, states had laws restricting the freedom of speech, and the need for them to be declared unconstitutional as it directly goes against the First Amendment. In today’s sensitive society, there are safe spaces designated for the weak minded individuals who cannot deal with confrontation or discussion on a topic that is contrary to their views. How does this help anyone avoid hate speech or help them to have an open, honest discussion regarding varying opinions? It is more important than ever that our ability to say what we want, not matter how offensive it may be deemed, not be restricted.
Hate speech, as we discussed earlier, is an undefined term. Interpretation by the individual is key, as to what one person may be offended by, yet someone else may not be. The term is simply too broad and has a subjective range for “hate speech” ever to be outlawed, much less prosecute for the use of one’s opinion. The United States would need the “thought police“ to be able to determine who was offensive to whom and what was not to others. Further, for a law to be in place that would ban the use of hate speech, it would require the removal of the First Amendment guaranteed right to free speech. For that to happen, it would require the complete removal of all checks and balances that were put into place by our Founder’s, so that people would be free to say what they like as long as they are not inciting violence. Furthermore, in today’s political climate, calling speech of the opposing side “Hate Speech” has turned into a way of trying to invalidate the other people’s opinions. By turning the offensive words into a tool to try to silence and bully people that support the idea of free speech, antagonists try to muster support for their causes through group think mentality revealing their true motives to silence opposing views. Even if their idea of free speech is considered racist, misogynistic, homophobic, or xenophobic, as long as it does not directly call people to action to commit violence against an individual or group because of their thoughts and opinions, it should be and is protected speech. However, in today’s society, everyone cannot wait to tell their opinion and ideas, no matter how offensive or subversive it may be. Decency and civility have become a casualty of free speech.
The ruling that “Hate Speech” was protected under the First Amendment was a monumental ruling cementing the importance of free and unedited speech. People are entitled to their own opinions, no matter if they are deemed deviant to the society. Society itself has also played into the creation of the actual term “Hate Speech”. As times and generations have changed, so have people’s perception of what hate speech actually is. Societal and cultural norms also play greatly into what was and is defined as hate speech. In today’s society, members both old and young, male and female, rich and poor, generally lack a filter. What that ultimately means is there is a greater general use of what would have been previously defined as hate speech.
Another major difference is the motivations that drive people to say what they want without fear or retribution. In the social media crazed age, people quickly gain their fifteen minutes of fame by saying these highly inflammatory things purely to incite reactions out of those that hold hate speech against the laws of the land. It has been an effective tool as the emotions are so highly charged, people lose their composure and let those words influence their emotions and actions, often to their detriment.
Society has given hate speech so much power and credence by including other forms of communication such as; symbols, music, statues, cartoons, and actions, such as burning the American flag that people are literally willing to erase the founding principles of American history rather than have a common sense dialogue about what makes them offensive. Again, in the age of social media, where everything is transmitted in real time, both outrage and support are immediate. Sides are chosen, emotions run high and retaliation is in full play. Each side claiming superiority and moral high ground, with free speech ending up the casualty.
This leads to the formation of two different sides, this is especially present on the internet where the divide between the two sides is truly propagated. The internet has a way of showing the opposite ends of the spectrum, when it comes to what hate speech is, being as dark and as socially unacceptable as possible purely to get a rise out of the other side. This also ensures the retaliation from the other side who is the typical “SJW”(Social Justice Warrior), in terms that they overreact and want any form of hate speech banned. In general, when speaking and in actions, if people are not allowed to say what they please, they tend to take it as an act of defiance, increasing what would be called hate speech ensuring that they are heard.
The concept of no filters is somewhat of a new concept, as in previous generations what was socially acceptable to be said and the general concept of the use of manners played a large part of society. In addition, more thought was put into what was said and where it was said, as there was more of a time and place for things to be said and done appropriately. There was a way to disagree with authority or someone about something respectfully, without compromising your own integrity and not insinuating that other views were hateful. In contrast to today, where there is still a general sense of manners being taught, there is a lack of tact in terms of what is being said and where it is being said. Like previously stated, many today in the media, politics and Hollywood use hate speech more to seek a reaction and to limit free speech of others, than necessarily to be hateful. What is the cause of the degradation of society that seeks to limit Constitutional freedoms? Is it a generation gap? Or what can be identified as the moment that sensational coverage of questionable actions and verbiage becomes common place? As time goes on, language evolves and hate speech is just part of what is included in our modern day language. Essentially, it is the evolution of communication over the decades and the death of common sense.
Hate speech today has seemingly far more impact when said, as there have been multiple cases in which people have tried to sue for the use of hate speech, outside of Matal v. Tam, 2017. This emphasizes the increased scrutiny that words have today in our legal system. President Bill Clinton, who was not on trial for hate speech, however, illustrated this most beautifully when during the impeachment hearings, in regard to his relationship with the then intern, Monica Lewinsky, asked the independent counsel what the definition of the word “is” was. Words matter, however, intent to create divisive views is not the reason to limit free speech. If it was illegal, CNN, MSN, and Fox news would all be out of business and the executives would potentially be incarcerated if they continued propagating verbiage that was less than honest about segments of the population.
Some people really feel that these words, actions, music, symbols and cartoons should be enough to shut them down and put others in jail. With the increase in the use of hate speech on a daily basis, the courts would be backlogged as each case would be held to a standard that is not publically or legally defined. If they should be prosecutable, one has to ask how these people plan on using as this hate speech as a legitimate form of legal prosecution, since as long as what was said was not inciting or promoting violence, it would directly be covered under the First Amendment.
As much as people do not agree with it, hate speech is a guaranteed right. Matal v. Tam, 2017 is just one of these cases that illustrates why hate speech is a guaranteed freedom. As long as it does not directly promote or encourage violence when speaking, hate speech is allowed to include many questionable terms or symbols, no matter how offensive or explicit. People simply seem to think that if hate rhetoric is allowed, it weakens the voice of those it is considered to be derogatory against. Yet, what the don’t seem to understand is that in their efforts to protect the marginalized, they are directly creating another marginalized group, those who wish to be able to use their free speech how they please. Further, people want to use their emotions to dictate laws and what is allowed to be said. This is common place in society today and is making it harder and harder for people to able to speak their minds and not be afraid that what they said is somehow misconstrued as hate speech. With emotions dictating so much of our language today, it is hard to understand how any of this argument that hate speech is not free speech is even considered to relevant. For this argument to even be considered to be a valid legal concept, you would think they would have some form of proof to back their claims that hate speech is not free speech, yet none is ever produced. Instead, we see protests at colleges over speakers whose views differ from group to group. In some cases, you even see this desire to silence speech reach new heights, such as what happened at UC Berkeley, when Milo Yiannopoulos spoke. Left wing activists shut down his talks and then went on to set fires, break windows, and create utter unrest. In the end, a directive came down for a campus wide shelter in place to be ordered. There was no free speech that day on that campus. Who was more hateful?
Hate speech, however defined by law, is something in today’s day and age that is here to stay. It is not up for debate on whether or not it is ethical, moral or even legal. This case determined that for us, we the people, it is legally allowed. Rather, it is more up to the social and political structure of the United States to understand that just because you do not like what is being said, you do not have any legal powers to silence what is being said. Hate speech is somewhat of a trend that has grown become part of the US culture. As long as it is not inciting violence or calling people to action in a nefarious sense, it is something we must accept as a nation.