Hate Speech

The History of a Controversy

The Oxford English Dictionary notes that the term hate speech was coined as recently as 1988, but the debate about what has come to be called hate speech began to emerge during the first half of the 20th century. As various critics have noted, First Amendment protections of free speech had been viewed prior to the 1920s as exclusively for the protection of the upper classes of American [Page 1035]society against the potential subversive power of racial and political minorities. This began to change as groups like the Jewish League, the National Association for the Advancement of Colored People (NAACP), and the American Civil Liberties Union (ACLU)—groups whose membership had been subject to unequal First Amendment protection during the preceding decades—began a full-throated call for the protection of all speech in the 1910s and 1920s. In the face of a tacit public acknowledgment that some speech was clearly offensive to society writ large, these groups acted on the belief that limiting oppressive speech might also provide an avenue to limiting the kinds of countercultural speech central to their own aims.

These efforts to expand First Amendment free speech protections to groups generally found odious by the larger public—particularly the ACLU's push to protect the speech of the Klu Klux Klan and members of socialist political groups—were challenged in the 1930s in the time leading up to the outbreak of World War II. In 1938, the House Committee on Un-American Activities (sometimes called the Dies Committee) was charged with investigating potentially subversive activities, including speech, by individuals or groups suspected of having communist or fascist ties. The Dies Committee in many ways stifled the call for First Amendment protections by the ACLU and its associates. The resultant movement toward restricting some speech was perhaps most evident in the now-famous 1942 “fighting words” decision by the U.S. Supreme Court in Chaplinsky v. The State of New Hampshire. This decision created “narrowly limited classes of speech” that could be prohibited on the grounds that some words “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

The articulation of “fighting words” in the Supreme Court decision in the Chaplinsky case was followed in successive decades by some additional, but scattered, attempts at further proscribing potentially offensive speech in American culture. Perhaps the most notable examples of these attempts were the activities of the House Un-American Activities Committee (1947–75), a successor to the Dies Committee of the late 1930s, and the rise of group libel laws. Despite such attempts, by the start of the 1970s Chaplinsky had been revisited and severely limited in scope, and any libel laws put on the books were never actually put into use.

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