Hate Speech

The debate surrounding hate speech in the United States largely centers upon freedom of speech, supported by the First Amendment, and civil rights, supported by the equal protection clause of the Fourteenth Amendment. Hate speech can generally be defined as speech directing or reflecting hatred toward an individual or group based upon race, ethnicity, sexual orientation, gender, disability, national origin, or other identities. Public debate centering upon hate speech includes two predominant perspectives. The free speech supporters are opposed to any government [Page 418]restriction on speech, as it is viewed as a violation of the First Amendment. They suggest that any control of free speech, including hate speech, infringes on the rights of individuals to express their views. Any government restriction is perceived as antithetical to a free democratic society. The civil rights supporters state that hate speech infringes upon the rights of the individuals to which speech is directed. They maintain that hate speech limits the ability of such individuals to be free in a democratic society through disrespect, dehumanization, defamation, humiliation, intimidation, harassment, and discrimination.

Those opposed to hate speech maintain that it is usually used against vulnerable minority groups, and the government has the responsibility to maintain equal protection of such groups under the Fourteenth Amendment. Yet, the First Amendment of the U.S. Constitution is the cornerstone of the U.S. Supreme Court's decision making in hate speech cases, centering on freedom of speech. Over time, the Supreme Court has generated criteria and precedence though major court cases involving hate speech.

The clear and present danger test has had a long-lasting impact on hate speech cases. The clear and present danger test was first coined by Justice Oliver Wendell Holmes, Jr., in 1919. In Whitney v. California (1927), Holmes and Justice Louis Brandeis stated that all cases involving free speech and incitement of violence should be evaluated using the clear and present danger test. Brandeis stated: “Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial to justify the stringent restriction interposed by the legislature.” This case was significant, as the clear and present danger test has been and continues to be used in cases involving hate speech.

Justice Frank Murphy developed the conceptualization of “fighting words” in Chaplinsky v. New Hampshire (1942) by stating: “There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or fighting words—those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.” The “fighting words” qualification has also been used to evaluate hate speech cases, but subsequent Supreme Court cases indicate that such words must accompany a clear and present danger.

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