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What can be done about hate speech?

Erwin Chemerinsky, Berkeley Law dean | August 18, 2017

The tragic events in Charlottesville again raise the question of why expressions of hate should be tolerated and deemed protected by the First Amendment. Most European nations do not allow hate speech, such as the vile white supremacist, racist and anti-Semitic speech that occurred last week in Virginia.

Would we be better off as a society without such speech? And if not, what can be done about it, especially on college campuses? The events at the University of Virginia, or for that matter at Berkeley earlier this year, show that campuses are going to continue to be the place where speech issues so often arise.

torch rally in charlottesville

Torch-carrying demonstrators in Charlottesville, Va., last weekend. (Image from Unicorn Riot video)

As a matter of constitutional law, it is clear the First Amendment protects a right to express hate. Every effort by governments to prohibit or punish hate speech in the United States has been declared unconstitutional.

For example, the Supreme Court unanimously declared unconstitutional a St. Paul, Minn., ordinance that prohibited burning a cross or painting a swastika in a manner likely to anger, alarm or cause resentment. Likewise, the court struck down a Virginia law banning cross burning.

Over 300 colleges and universities enacted hate speech codes and every one to be challenged in court was declared unconstitutional. Indeed, because of their commitment to academic freedom, free speech has its greatest protection in colleges and universities.

Private entities and corporations have more leeway. Since Charlottesville, a number of private companies have sought to control the ability of hate groups to use their platforms and services to promote hateful ideas.

GoDaddy and Google stopped providing hosting support to the neo-Nazi site, the Daily Stormer, saying the site had violated their terms of service. Uber Technologies Inc. banned a well-known white supremacist for allegedly harassing an African American driver. Airbnb cracked down on Charlottesville users suspected of hosting neo-Nazi gatherings, and the GoFundMe website, which prohibits hate speech, removed campaigns to crowdsource bail money for the Ohio defendant accused of driving into a crowd of counter-protesters, killing a 32-year-old woman.

Of course, the First Amendment applies only to the government, so private companies can restrict speech however they choose without running afoul of the Constitution. But when it comes to the public sector, the Supreme Court has been emphatic that the government never can stop speech on the ground that it is offensive, even very deeply offensive.

As recently as this past June, the Supreme Court unanimously declared: “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.’ ”

Why? The core of the First Amendment’s protection of freedom of speech is that all ideas can be expressed. This is as it should be. Once the government can pick and choose among messages, there truly is no stopping point to censorship.

Hate speech expresses an idea, albeit one we wish did not exist. Moreover, experience in other countries and the United States shows that laws prohibiting hateful speech are often used against minorities, the very individuals that the laws seek to protect.

But this does not leave government or campus officials powerless. Free speech is not absolute. There is no First Amendment right to engage in speech that causes people to feel an imminent threat to their safety or that constitutes harassment.

Campus leaders, too, have freedom of speech and they must use it to denounce expressions of hate. A campus must tolerate offensive messages, but it need not and should not treat them as acceptable, and campus officials must condemn expressions of hate in the strongest terms. Campuses also must provide a forum for counterspeech, including counterprotests.

At the same time, campus officials have the duty to ensure public safety. This can take many forms.

Those participating in demonstrations can be prevented from carrying the bats and clubs that were visible in pictures in Charlottesville. There is a First Amendment right to speak, not to carry a weapon. No court ever has found a Second Amendment right to have a gun on campus.

If campus officials reasonably fear for safety, they can confine demonstrators to an area where the perimeter can be controlled. Counterprotestors can be located at a physically separate place to minimize the chances for violent confrontations. All of this is consistent with the basic First Amendment principle that there can be time, place and manner restrictions of speech.

In extreme cases, when it may be apparent that there is just no safe way for a rally or demonstration to occur, the campus can cancel it without offending the constitution or principles of academic freedom. This never can be done because of objections to the content of the message.

A claim of a threat to public safety never should be a pretext for silencing an unpopular speaker. But there are times when protecting people requires preventing or ending speech.

We live in a deeply polarized time. It seems that there is a greater willingness to express hatred than at any time in recent memory.

It feels like a rock has been turned over and white supremacists, who largely were underground, now feel able to publicly express their awful message. The First Amendment is based on a faith that it is better to allow speech, even hate speech, than to suppress it.

Crossposted from the Sacramento Bee

Comments to “What can be done about hate speech?

  1. Hate speech has become terrible recently in Nigeria during President Buhari’s regime. The eastern people still feel marginalized which makes them to call for the restructuring of the entity called Nigeria. Corruption is thriving in Nigeria and the present government is still not doing enough to stop this. Every year thousands of people graduate from the universities and no job. This brings the hate speeches from individuals which can lead to a chaotic situation. I think Nigeria government should focus on providing more Jobs and infrastructure for the masses. Workers salaries should be paid when due.

  2. Who gets to decide what is and what isn’t “Hate Speech” is the real issue.

    Cary Michael Cox

  3. I stopped everything I was doing when I saw this post and could not put my electronic device down until I finished it. I currently have a high level of frustration about what appears to be a mockery being made of an amendment that was designed to promote the inclusion of all people and groups. I want to be clear, I do not think that this article is making a mockery of the First Amendment. Instead, I think it appears that white supremacist and racist groups are making a mockery of the First Amendment. Why is it so difficult for governing bodies of municipalities and educational institutions alike to differentiate between inclusive acts that address: race, ethnicity, gender, age, or disability and exclusive acts that demean someone for the previously mentioned attributes. Why can’t this difference serve as a standard when deciding to censor or allow public displays of opinions?
    The following is posted on a webpage belonging to U.C. Berkeley. “Our goal is to transform UC Berkeley into an equitable and inclusive academy of the highest caliber.” Why can’t all exclusive acts that demean individuals be censored for prohibiting the university from achieving this goal? Or does this goal violate the Constitution as well?

  4. What can be done about hate speech? Stop calling it “hate” speech. Poof. Gone.

    (Besides, how I feel is not controlled by others. If someone is intent on spewing hate, that has nothing to do with me. To expect the world to speak in a certain way so that i don’t have to feel bad is a fruitless pursuit. By doing that i am assuming that the entire world is supposed to know how i feel, why i feel that way and that we both possess the exact same definition of what is “hate.” We are not mind readers. Just relax, one day you might have something you want to say that others will deem as “hate” but because we have this thing called “Free Speech” with no exceptions, you will still be allowed to speak. That’s the magic of the 1st Amendment. How else could it possibly be? Should the law be changed to say, “Free Speech” except speech that offends? Of course not!)

  5. “A claim of a threat to public safety never should be a pretext for silencing an unpopular speaker. But there are times when protecting people requires preventing or ending speech.”

    As an alum, I think it’s clear that Berkeley needs to do a better job of handling conservative speakers, because it seems as if the heckler’s veto seems to only suppress conservative talks on campus, not liberal ones.

  6. The ACLU is updating its policy to no longer support groups who insist on carrying guns at their events.

    The American legal environment’s strong support of expression, including offensive expression, would be a little easier to live with if we still had a media environment in which some remnant of the “fairness doctrine” was in practice, and some sense of respect for expertise still held sway — but neither of those conditions is true today.

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