Hate speech, for better or for worse, is protected by the First Amendment. The U.S. Supreme Court, after some rulings in the early part of the 20th century that limited free speech related to what would be considered hateful or threatening comments, has repeatedly ruled that speech uttered, even if it is repulsive or advocating violence, is protected by the First Amendment. The “test” created by the high court’s decision nearly 50 years ago in Brandenburg v. Ohio (1969) is still the standard applied for so-called “hate” speech.
Clarence Brandenburg, a Ku Klux Klan leader, invited a Cincinnati TV station to attend a rally on a farm in rural Hamilton County, Ohio in the summer of 1964. The 46-year-old television repairman was there among 12 hooded individuals, some with firearms, burning a large wooden cross. According to the facts the Supreme Court based its decision on, the rally was attended only by the KKK and a TV crew consisting of a reporter and photographer. Two separate films were made with some of the footage making its way onto the TV station’s newscasts and on a national TV network. In the first film, Brandenburg is seen saying “…if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) taken” (Brandenburg, 1969). In the second film, Brandenburg said, “Personally, I believe the nigger should be returned to Africa, the Jew to Israel,” among other things. (Brandenburg, 1969)
With the two films as the primary evidence against Brandenburg, the KKK leader was arrested and convicted under an Ohio Criminal Syndicalism statute, fined $1,000 and sentenced to one to ten years’ imprisonment. The statute prohibited ‘advocat[ing] . . . the duty, necessity, or propriety [445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ as well as assembling individuals in order to teach and advocate criminal syndicalism (Brandenburg, 1969). Brandenburg’s convictions were upheld in lower courts, including the Supreme Court of Ohio, but the U.S. Supreme Court agreed to hear the case.
127 our experts are availableright now
In the majority opinion of the high court, the justices referenced that decisions since Whitney v. California (1927), which upheld a similar law, had changed: “These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action…the mere abstract teaching…of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action’ (Brandenburg, 1969).
Since Brandenburg there have been cases that have essentially reinforced and/or added to the U.S. Supreme Court’s decision. R.A.V. v. City of St. Paul (1992) deemed a law making cross-burning, Nazi swastika’s or writing/pictures that cause alarm and resentment on the basis of race, color, creed, religion or gender illegal, as unconstitutionally too narrow and viewpoint-based discrimination. Virginia v. Black (2003) established that laws banning cross-burning across the board were unconstitutional, but burning a cross to intimidate could be deemed illegal. And, in one of the more controversial decisions regarding free speech in the 21st Century so far, Snyder v. Phelps (2011), the Supreme Court ruled in favor of free speech and the Westboro Baptist Church, whose members shouted anti-gay epithets and other derogatory remarks at those attending a military funeral.
Hate speech, maybe now more than ever, is being scrutinized. Despite being nearly 50 years since the Brandenburg v. Ohio decision, law enforcement and the country still grapples with when it is and is not, by law, acceptable to censor free speech under the First Amendment and whether it is time to update or replace the Brandenburg Test.
In the past few years, concern with hateful rhetoric that many believe has led to violence has grown. A demonstration and counter-protest led to violence and death in Charlottesville, Virginia this summer. Then, Robert Bowers, blaming Jewish people for ruining white America, opened fire in a synagogue killing 11 worshippers. And at about that same time, Cesar Sayoc, Junior, sent bombs through the mail to Democratic leaders and CNN angry about what he claimed was propaganda or fake news about our country (Matsakis, 2018). With these recent events coupled with other mass killings over the last few years, the popular press has weighed in about hate speech and its relation to violence. For instance, in an opinion piece published in the New York Times, a psychiatrist chronicled studies that show the brain’s physiology when bombarded with hate messages.
Using the speech President Trump has been known to spew, and citing studies by a colleague, he talked about individuals under stress who would be greatly influenced by both peers and authority figures – so much so that they could turn violent. He ominously, wrote, “Now imagine what would happen if President Trump actually issued a call to arms to his supporters. Scared? You should be” (Friedman, 2018). Berlatsky (2017), writing for nbc.com, raises the question, “Must we defend Nazis?” He makes it clear he is tired of the ACLU and others defending the right of extremists to peddle hate speech, declaring that First Amendment advocates “overstate” the benefits of free speech. Berlatsky concludes “directing hatred and vitriol” at minorities and others “does not advance freedom or liberty” (Berlatsky, 2017). And, he says rather than defending Nazis’ free speech, we should defend those that the Nazis want to kill.
Meanwhile, hate speech has become such a concern globally, the United Nations Educational, Scientific and Cultural Organization (UNESCO) issued guidelines to journalists called “5 ways to counter hate speech in the media through ethics and self-regulation (JameKolok). UNESCO says that being educated on media ethics is essential to “creating and promoting peaceful societies.” UNESCO wants journalists to develop “conflict sensitive reporting skills” and when hate speech is identified they should “counteract” those messages. Further, UNESCO wants journalists to encourage victims of crimes fostered by hate speech to report them and urges newsrooms to monitor and gather data about hate speech trends, which should be brought to the attention of “key institutions in a civil society” (UNESCO).
Beyond the United Nations, many individual countries have decided that hate speech needs to be illegal and punished as a crime. Canada, Britain, Australia, the Netherlands, South Africa, France and Germany, among many others have laws that criminalize hate speech. In fact, the Council of Europe’s Protocol to the Convention on Cybercrime defines hate speech, in part, as “hatred based on intolerance” (Carlson, 2016). How does hate speech being illegal actually manifest itself? For instance, comedians in Canada have been fined for comments mocking Lesbians and Neo-Nazi websites in Germany are frequently shut down (Carlson, 2016).
The simplest argument for the First Amendment and in defense of Brandenburg v. Ohio is that censoring free speech only when it incites and is likely to cause imminent lawless action keeps irrelevant the content of what is being said. In doing that, yes, it protects speech a majority might find repulsive and unnecessary for a functioning democracy, but it also protects speech that may end up leading to the greater good despite causing angst among the masses. Had the civil rights movement not been protected from the majority – particularly in the South, but practically speaking throughout the country – the Civil Rights Act (1964) and Voting Rights Act (1965), among other legislation, would have never been passed.
Meanwhile, some linking hate speech with hate crimes dismiss this argument as too simplistic. Fiss (1965) believes, specifically in the case of R.A.V. v. St. Paul (1992), the U.S. Supreme Court erred in ruling that specific types of hate speech – burning crosses and Nazi swatikas, for instance – cannot be deemed illegal on their face. He contends that hate speech may have the effect of silencing other viewpoints, just by its very existence, thus perhaps “partiality” on the court’s part related to content might be necessary – meaning banning some viewpoints would be appropriate. However, Fiss offers no real data to support his contention. Tsesis (2010) analyzes a later case, Virginia v. Black (2003), from the viewpoint of college campuses.
In Virginia, the U.S. Supreme Court ruled that only cross burning to intimidate, not all cross burning, could be banned. College campuses that have, over the last decade, created “safe” zones in fear students will be mistreated because of their race, gender, religion and the like, should have different standards than Virginia sets, Tsesis argues. “The social and educational value of regulating intimidating and defamatory speech on campus outweighs the minimal burden it places on speakers” (Tsesis, 2010). Historically intimidating symbols, such as a burning cross, should be banned on campuses because such speech does not conflict with the “pursuit of truth” (Tsesis, 2010). Perhaps is a confined area, which is what most college campuses are, having some restrictions on speech might make sense because there is nowhere for a student to go if encountering hate speech because dorms are where dorms are and classes are held where classes are held.
On the other hand, Stone (1994), in addressing the First Amendment’s uniqueness and the subsequent court cases that have decided hate speech is protected speech, offers a logical explanation for allowing hate speech. He writes that the expression of hate speech is not harmless, nor should it be considered harmless simply because the court has ruled it is legal. Rather, he reasons, “there are better ways to address the harm than by giving government the power to decide which ideas and opinions of a free and self-governing nation may and may not express” (Stone, 1994). Along those lines, Strossen (2018), argues the solution to combat hate speech is not government censorship, but MORE speech.
In an opinion piece in the USA Today, Strossen noted that former President Barack Obama for many years has advocated more speech, or speech promoting tolerance and fighting bigotry, rather than repressing hate speech. She cites a number of sources indicating that in countries where hate speech is outlawed rather than being combated by counters-speech, conditions have actually gotten worse for many minorities, so much so that one observer said Jews in Europe were now living on “borrowed time” (Strossen, 2018). And, as far as college campuses go, Juhan (2012) argues that students – even ones espousing hate speech – should also be protected. Hate speech should not be “pervasively regulated and disfavored in higher education,” in other words, if Juhan had his way there would be no “safe” zones.
Another worry, in these times of political correctness, is battling the majority’s urge to protect minorities and others who may be feeling the wrath of someone exercising their free speech by unleashing hateful rhetoric. Abrams (1992) states unequivocally that the United States is unmatched in its protection of free expression in the world and admits the “test” created by Brandenburg v. Ohio makes it very rare that the government can justify censorship. He warns the temptation to ban speech we think is “bad” is “overwhelming” because speech can and has done harm in the past (Abrams, 1992). But, this country holds firm to the view that “to risk the harm that speech may inflict to avoid the greater harm that the suppression of speech has so often caused” is the route to follow (Abrams, 1992).
Adding to the age-old debate regarding face-to-face hate speech, is spewing hate via the Internet and specifically through so-called social media. Balica (2017) concedes the complicated nature of “criminalizing” hate speech online, and at the same time admits that hate groups may “instantly disseminate their comments across the world” while staying essentially anonymous. Montgomery (2009), noting the climate created by September 11, 2001, and the subsequent legislation passed, including The Patriot Act, warns that fear in the moment is not a good guide to what might be best in the long run for the country.
Specifically, Montgomery wrote would be unfortunate if fears about terrorism via the Internet resulted in legislative restrictions that years ago the U.S. Supreme Court decided should receive the highest protection from the First Amendment. Meanwhile, Pew (2015) believes the answer to the ambiguity of Brandenburg is to simply apply something called Speech Act Theory. Under that theory, speech would be judged as inciting and likely to cause violence by “the utterance’s illocutionary force” (Pew, 2015).
Then, there is the complicated matter of hate speech and “true threats.” In Elonis v. United States (2015), the U.S. Supreme Court ruled directly on threats made through Facebook. Anthony Elonis had posted hate messages about his estranged wife to the effect that he would not rest until she died from millions of “little cuts” and mentioned that there were many elementary schools within a ten-mile radius to “initiate” the worst school shooting in history (Elonis, 2015). Elonis, not surprisingly, was convicted under a federal law making it illegal to transmit threats interstate.
However, the U.S. Supreme Court decided threats that are only identified objectively are not enough to convict someone. Elonis had essentially argued there was no true intent and that he was simply venting. The high court agreed that the jury needed to be directed to decide if there was a “subjective” intent and since it was not given that direction, the conviction was overturned (Elonis, 2015). Some might argue this case alone has opened the door for a sort of “wild west” in social media because proving “subjective” intent is difficult at best.
Still further, you have U.S. Supreme Court decisions that tangentially deal with hate speech. Up until last year, under a disparagement clause, the United States Trademark Office would not grant a trademark that was judged to be “immoral, deceptive or scandalous” or bring under contempt “persons, living or dead, institutions, beliefs, or national symbols” (Hsieh, 2018). Then came an Asian-American band that called itself “The Slants.” Its leader, Simon Tam, applied for and was rejected in obtaining a trademark because historically in this country the term “slants” has been used as a derogatory racist way to refer to Asian-Americans.
The 8-1 Supreme Court decision simply said the disparagement clause used by the trademark office violated the Free Speech Clause of the First Amendment (Matal, 2017). While this does not directly relate to Brandenburg v. Ohio nor other face-to-face hate speech cases, it does expand the essence of Brandenburg in that merely offensive or repulsive speech cannot be suppressed by government, in this case, the U.S. Trademark Office.
