The Problem With Making Hate Speech Illegal

This weekend’s deadly melee in Charlottesville, Virginia, is bound to fuel calls for increased regulation of hateful speech. The confrontation triggered by white supremacist marchers offered a frightening demonstration of how racist, anti-Semitic, and other noxious messages can ignite clashes and willful attacks that kill, injure, intimidate, and divide. President Donald Trump’s reluctance to name the problem only compounds it, fortifying the belief that his administration is in league with the merchants of hate.

Spikes in hate crime statistics and incidents of hateful speech over the last year suggest a problem spiraling out of control, feeding calls for legal solutions. When confronted with a surging problem, Americans like to pass laws. In December, the U.S. Senate passed the Anti-Semitism Awareness Act, which proposed broadening the definition of speech that can trigger a civil rights investigation. (Its companion measure was not voted on in the House of Representatives.) A bill newly introduced in the Senate would ban advocacy of boycotts against Israel, justified in large part by concerns over anti-Semitism. Earlier this month, city commissioners in Fargo, North Dakota (the state with the second-highest level of hate crimes in the country), discussed the need for new hate speech legislation. Public officials including former Vermont Gov. Howard Dean and Portland Mayor Ted Wheeler want to rewrite the law without troubling themselves with legislation: Both have declared summarily that the First Amendment does not protect hate speech.

In fact, most of what we consider hate speech — slurs, insults, and provocations — are shielded from bans and punishment by the First Amendment, rendering ours the world’s most protective standard for hate speech in the world. A neo-Nazi salute is illegal in Germany but permitted here. Thirteen out of the European Union’s 28 countries ban Holocaust denial, a viewpoint that’s perfectly legal in the United States. Whereas many Muslim-majority countries ban depictions of the Islamic Prophet Mohammed, such cartoons can be published here.

A growing number of Americans are now asking what would be so bad, in a country striving for tolerance and inclusion, to legislate that hate speech has no place. With the president seemingly unwilling to speak out against such vituperative language — much less take forceful action to curb it — the quest for another solution is understandable. Some countries where this is forcefully regulated have learned the hard way that, untrammeled, hateful speech can portend violence on a mass scale. Given their national histories of genocide, it’s not hard to understand why Germany and Rwanda maintain strict prohibitions. Americans don’t want to wait for the problem to get worse before doing something about it.

But legal bans on hate cannot, and should not be the answer. First and foremost, they cannot be the answer because they contravene the U.S. Constitution. The proposed federal ban on advocacy of anti-Israel boycotts will not pass constitutional muster and other proposed prohibitions are also almost certain to be struck down if enacted. Advocates of these measures have advanced no legal theory that would reconcile a more aggressive approach to regulating hate speech with the First Amendment.

Even if they were constitutionally permissible, legal restrictions on hate speech would create more problems than they would solve. The most egregious and harmful forms of hateful speech — threats, harassment, and incitement to violence — are already unlawful. When it comes to less definable forms of abhorrent speech, there is no single standard for what qualifies. Some in Congress maintain that criticism of Israel is anti-Semitic hate speech. Others would argue that drawing a link between terrorism and Islam would cross the line. What some would classify as hate speech directed at women our president might dub “locker room talk.” Debate on these perspectives can yield important insights about how words heard as innocent by some can sound profoundly menacing to others. But if hate speech became the basis of convictions and jail sentences, such ambiguities and subjectivities would be untenable. If individuals cannot be sure what might be judged hate speech they will have no choice but to avoid all manner of legitimate speech for fear of legal jeopardy. News organizations, radio shows, and websites would have to employ armies of lawyers to help scrub speech that anyone, anywhere might consider offensive enough to cross a vague legal line.

Countries that do aggressively police hate speech offer a cautionary tale: Rwandan President Paul Kagame just won reelection to a third term with 99 percent of the vote, securing his rule for a tenure of at least 30 years in a political environment where all opposition is squelched. A leading political opponent, Victoire Ingabire, is serving a 15-year prison sentence for “divisionism” — for simply having pointed out that Rwanda’s genocide had Hutu as well as Tutsi victims. Facebook is hiring hundreds of staffers in Germany to comply with a new law that offensive speech must be pulled down from the site within 24 hours, empowering a cadre of office workers to reshape the national discourse by determining what opinions are out of bounds.

If legal solutions won’t work, it is fair to ask what will. In recent decades, noxious speech has been curtailed by editorial guidelines, codes of conduct, and powerful taboos that make the swastika, Ku Klux Klan hoods, and racial slurs anathema. It is precisely because hate speech has been widely rejected that there have been relatively few calls to make it illegal. Until recently, implicit injunctions against bigoted and inflammatory speech were reinforced from the top. When Florida Pastor Terry Jones threatened to burn Qurans in 2010, then-Secretary of State Hillary Clinton and Secretary of Defense Robert Gates both publicly condemned his plans (while acknowledging that Quran burning is not illegal). President Donald Trump, however, has repeatedly dodged bipartisan pressure to directly deplore hatred spewed by his political base; his campaign’s embrace of white-supremacist, misogynist, and anti-Muslim sentiments make it impossible to construe his equivocations charitably.

There is no antidote for a president who abides hatemongering. But ringing condemnations from Virginia Gov. Terry McAuliffe, Charlottesville Mayor Mike Signer, and countless other elected officials from across the country do help. Religious figures, educators, businesspeople (in the mode of Merck CEO Kenneth Frazier who just resigned from the President’s American Manufacturing Council to protest Trump’s handling of the events in Charlottesville), celebrities and civil society leaders need to echo those admonitions, particularly if they reach audiences where hateful attitudes are spreading. Funders should invest in measures to protect targeted groups and shore up weakening taboos. Massive public relations campaigns helped overcome racial and religious hatreds in the 1950s and 1960s and have helped achieve headway on recent battles against childhood obesity, teen pregnancy, and other causes. The problem of hate speech now warrants commensurate attention and resources.

Investment is also needed in outreach toward right-wing youth and community groups to better understand their motives and how they can be influenced. During the civil rights era significant resources were devoted to tracking, researching, and analyzing the spread of hate groups; the Southern Poverty Law Center and other organizations are stepping up their efforts as should a range of non-profit, academic, and government actors. Where engagement and dialogue is possible, it should not be ruled out. While no one should be forced into conversation with those who question or threaten their right to exist, there are intermediaries who may be able to help pry away support for extremism at the margins, particularly when it comes to persuading young recruits not to start down the path of hatred.

Aggressive prosecutions of hate crimes, threats, and harassment — actions that cross an existing legal line — can send a powerful message that this sort of behavior is not tolerated. Both federal and state statistics confirm that hate crimes are drastically underreported and rarely prosecuted. A wide range of community and citizens groups can be mobilized to ensure that cases are more consistently flagged to authorities. While we can hardly count on the current U.S. Department of Justice to take on hate crimes more doggedly, state and local prosecutors have jurisdiction over many such cases. Police departments in Boston, New York City, and Phoenix have units devoted to hate crimes; other metropolises should follow suit.

Local governments and police also need to think carefully about what it means to uphold the First Amendment in settings of racial and political polarization, where not everyone may enjoy an equal right to speak. Some observers have contrasted what they judge a relatively constrained police response to the unrest in Charlottesville with heavier-handed tactics used in Ferguson, Missouri, and other cities where citizens have protested police brutality. Gov. McAuliffe defended the policing of the incident, commenting that the supremacist militiamen were better armed than police. Local officials, police chiefs, judges adjudicating public assembly permits, and march organizers all have an obligation to use their leverage to ensure that the First Amendment is used to protect speech only, rather than providing cover for invitations to violence.

The idea of passing tough new laws to curb hate speech may have a reassuring feel to it, but such laws — in the unlikely event they withstood constitutional scrutiny — could create as many problems as they solve. The crisis of surging hate speech is urgent. Rather than groping for an elusive legal fix, communities, leaders, and advocates should rally around strengthening the tools we have.

Photo credit: CHET STRANGE/Getty Images

Correction, August 14, 2017: The Anti-Semitism Awareness Act of 2016 was introduced in both houses of Congress. It passed the Senate but not the House of Representatives, and therefore did not broaden federal anti-discrimination statutes. A previous version of this article mistakenly said the bill passed the House, also erroneously implying it became law.