The First Amendment to the United States Constitution protects speech no matter how offensive its content. To be clear, the First Amendment does not protect behavior that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis.
Hate Speech in the Law and the Courts
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.” (Matal v. Tam, 2017)
“Hate speech” doesn’t have a legal definition under U.S. law, just as there is no legal definition for rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn. Generally, however, hate speech is any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons. (Free Speech and the Development of Liberal Virtues: An Examination of the Controversies Involving Flag Burning and Hate Speech, 1998)
In the United States, hate speech enjoys substantial protection under the First Amendment. This is based upon the belief that freedom of speech requires the government to strictly protect robust debate on matters of public concern even when such debate devolves into distasteful, offensive, or hateful speech that causes others to feel grief, anger, or fear. Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.
In 1969, the Supreme Court protected a Ku Klux Klan member’s hateful and disparaging speech directed towards African-Americans, holding that such speech could only be limited if it posed an “imminent danger” of inciting violence. The court ruled in Brandenburg v. Ohio that a state could only forbid or proscribe advocacy that is “directed to inciting imminent lawless action and is likely to incite or produce such action."
In 1978, the Supreme Court upheld an appellate court decision that allowed a group of neo-Nazis to march on the streets of an Illinois suburb housing a substantial Jewish population (Collin v. Smith, 1978).
It 1992, the the Supreme Court overturned the conviction of a teenager convicted of burning a cross on the lawn of an African American family's home (R.A.V. v. City of St. Paul, 1992).
In 2011, the Supreme Court set aside a civil judgment that punished a church group, the Westboro Baptist Church, for picketing a military funeral with signs displaying messages disparaging the dead officer, LGBTQ persons, and the U.S. government (Snyder v. Phelps, 2011). Many Americans found the signs hateful and offensive. But the decision confirmed the Supreme Court’s historically strong protection of freedom of speech, so long as it doesn't promote imminent violence.
According to the Supreme Court, we “must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Tolerance of hate speech not only protects and upholds everyone's right to express outrageous, unorthodox or unpopular speech; it also allows society and the targets of hate speech to know about and respond to racist or hateful speech and protect against its harms.
Hate itself is not a crime. For the purposes of collecting statistics, the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate crimes, which can also encompass color, or national origin, are overt acts that can include violence against persons or property, violation of civil rights, conspiracy, or certain "true threats," or acts of intimidation. The Supreme Court has upheld laws that either criminalize these acts or impose a harsher punishment when it can be proven that the defendant targeted the victim because of the victim's race, ethnicity, identity, or beliefs.
Libraries are sanctuary spaces for First Amendment ideals. There is no “hate speech” exception to the First Amendment.
Symbols of hate are also constitutionally protected if worn or displayed in a public place. Libraries should comply with the ideals and legal requirements of the First Amendment. We make room for offensive, bigoted, and biased speech in the libraries if that speech is simply that: just speech.
Hate speech stops being just speech and becomes conduct when it targets a particular individual and includes behavior that interferes with a patron’s ability to use the library.
Directed Action + Hate Speech = Hateful Conduct
All patrons are welcome and have the right to use the library free of discrimination and loss of individual safety. Hateful conduct is not tolerated in the library and must be addressed as a behavioral issue or a violation of a library’s Code of Conduct. We cannot limit speech on the basis of its content alone, but we can address inappropriate or illegal behavior.
A hate crime, however, is about more than speech or conduct. It is about specific criminal behavior. Examples include:
- Defacement or vandalization of library property in a way that includes language or symbols that target specific groups. This would include racial epithets or swastikas, for instance, as we have seen in Kansas City, Mo. and Evanston, Ill.
- Harassment or assault. Here the behavior is meant to physically injure, or threaten to injure, people because of their membership in a specific group (typically religious, racial, cultural, sexual, or disability). If someone says, “stop stealing our jobs!” that’s an unpleasant confrontation, but it’s not a hate crime. On the other hand, if someone shouts, “your days are numbered!” that’s a threat. If someone touches, strikes, or might reasonably be construed as getting ready to physically intimidate someone else because that person is a member of a diverse group, that is a hate crime.
ALA Statements and Policies
Equity, Diversity, Inclusion: An Interpretation of the Library Bill of Rights (2017)
Libraries are essential to democracy and self-government, to personal development and social progress, and to every individual’s inalienable right to life, liberty, and the pursuit of happiness. To that end, libraries and library workers should embrace equity, diversity, and inclusion in everything that they do.
Libraries Respond: Hate Crimes in Libraries (2017)
ALA's Office for Diversity, Literacy, and Outreach Services (ODLOS) works in close coordination with the Office for Intellectual Freedom (OIF) to respond to incidents that have been reported, as well as units across the Association and its affiliates as needed. However, if library staff have encountered hate speech that may not be defined as a crime, we acknowledge that the impact can be traumatizing. We encourage you to reach out to ODLOS at email@example.com, or directly contact ODLOS Director Jody Gray.
Libraries Respond: Hate Groups and Violence in Libraries (2017)
This resource focuses on responding to and preventing violence in libraries.
The Universal Right to Free Expression: An Interpretation of the Library Bill of Rights (2014)
There is no good censorship. Any effort to restrict free expression and the free flow of information through any media and regardless of frontiers aids discrimination and oppression. Fighting oppression with censorship is self-defeating.
Diversity in Collection Development: An Interpretation of the Library Bill of Rights (2014)
Intellectual freedom, the essence of equitable library services, provides for free access to all expressions of ideas through which any and all sides of a question, cause, or movement may be explored. Toleration is meaningless without tolerance for what some may consider detestable. Librarians cannot justly permit their own preferences to limit their degree of tolerance in collection development, because freedom is indivisible.
“Under our system of government, people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry,’ said Justice Donald W. Lemons.”
Hate crimes can be reported on the OIF Challenge Reporting form.
Resources and Publications
Perspectives on Harmful Speech Online (2017)
Essays published by Berkman Klein Center for Internet and Society
This collection of essays includes perspectives on and approaches to harmful speech online from a wide range of voices that highlights diverse views and strands of thought on the subject.
Defining Hate Speech (2016)
A paper by Andrew Sellars published by Berkman Klein Center for Internet & Society
A longer, in depth discussion that examines the various attempts to define hate speech and explores the tensions between hate speech and principles of freedom of expression.
How Federal Law Draws a Line Between Free Speech and Hate Crimes (2015)
An article published by PBS
Brief, general overview of how federal law establishes a line between protected speech and a hate crime, with links to historic and more recent high-profile cases regarding freedom of speech.
Speech On Campus
Resource by ACLU
Although targeted to universities and student led speech and invited speakers, the positions hold consistent with library programs and collection of materials.
“Bigoted speech is symptomatic of a huge problem in our country. Our schools, colleges, and universities must prepare students to combat this problem. That means being an advocate: speaking out and convincing others. Confronting, hearing, and countering offensive speech is an important skill, and it should be considered a core requirement at any school worth its salt.
When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.”
Social Tolerance and Racist Materials in Public Libraries (2010)
By Susan K. Burke published in ALA Reference & User Services Quarterly
RUSQ summarizes three areas of thought to form a framework from which to examine the concept of books with racist content in public libraries. First is an introduction to the concept of intellectual freedom in libraries. This is followed by a brief review of library and information studies (LIS) literature concerning racism in library books. Most of this literature has concerned children’s materials, although children’s materials are not the focus of this study. Last is a brief introduction to scholarly thought from different disciplines concerning racist speech or hate speech and whether such speech should be controlled.
Assistance and Consultation
The staff of the Office for Intellectual Freedom is available to answer questions or provide assistance to librarians, trustees, educators and the public about hate speech and hate crimes. Areas of assistance include policy development, First Amendment issues, and professional ethics. Inquiries can be directed via email to firstname.lastname@example.org or via phone at (312) 280-4226.