HomeHate Speech

“To be afraid of any idea is to be unfit for self-government.” — Alexander Meiklejohn, Testimony on the Meaning of the First Amendment

“Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime . . . .” — Supreme Court Justice Potter Stewart, dissenting Ginzberg v. United States, 383 U.S. 463 (1966)

“Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”—Supreme Court Justice William O. Douglas

The core information found herein was gathered by George Pearson and Heidi Lowry, Reference Librarians at Florida International University, North Campus Library, for the Intellectual Freedom Round Table program at the 2000 ALA Annual Conference. The title of the program was “Freedom of Expression Versus Tolerance: Exploring the Limits.”

First Amendment

First Amendment with annotations by FindLaw

First Amendment Basics by the ALA Office for Intellectual Freedom

American Library Basics by the ALA Office for Intellectual Freedom

International Human Rights Instruments

International Library Basics

Freedom of Expression

The Universal Right to Free Expression: An Interpretation of the Library Bill of Rights by the ALA Office for Intellectual Freedom

Feminists for Free Expression

Free Speech

Free Speech by the American Civil Liberties Union

There is No Such Thing as Free Speech, an interview with Stanley Fish, the author of above book

Free Speech in the News

Freedom Forum

Hate Speech

Digital Representation: Racism on the World Wide Web by Indhu Rajagopal with Nis Bojin
“The questions explored here are: Does the Internet and the Web facilitate the spreading of hate messages? Should Internet hate materials be regulated? If so, how might that be done? What criteria should be used to differentiate between hate and non-hate materials? Is it possible to draw and enforce a line between hate and non-hate messages? What input would measures against hate messages have on the Internet culture itself?”

Hate Speech Resources Compiled by an about.com guide

First Amendment with annotations: Group Libel, Hate Speech

“In Defense of Hate Literature (Sort Of)” by Pierre Lemieux

“Must a Civil Society Be a Censored Society?” by Paul K. McMasters of the Freedom Forum

Hate Crime

“Hate Crime Means Thought Crime” by J.D. Tuccille

The Ideology of Hate Crimes by Ronald J. Pestritto

Hate crime in the news compiled by Soulforce, Inc.

Law and Legislation and the Courts

Government Restraint of Content of Expression by FindLaw

Virginia high court strikes down cross-burning law
“‘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.”

Organizations

Hatewatch

Task Force Against Hate by the Simon Wiesenthal Center

Internet Freedom: Hate Speech by the Internet Freedom Organization

Southern Poverty Law Center

Publications

Index On Censorship: magazine for worldwide free speech See especially: “The Speech that Kills” by Ursala Owen

Teaching Tolerance: magazine for educators by the Southern Poverty Law Center

Published in the IFRT Report, 2000 Summer issue

Hating Hate Speech: Debating Freedom and Tolerance in the Chicago IFRT Program

by George Pearson and Heidi Lowry
Reference Librarians
Florida International University
North Campus Library

America’s official day of Thanksgiving is also a celebration of tolerance, of Pilgrims escaping religious persecution in the Old World, and finding Native American friends in the New. Alas, the reality of succeeding years turned out somewhat differently. The Pilgrims proved violently intolerant of such heretics as the Quakers and Anabaptists, while the Algonkin (and many other tribes) came to rue their tolerance of immigrants form abroad. America’s history of tolerance is a checkered one, a crazy quilt of noble ideas and sometimes not-so-noble deeds.

For many years, freedom of expression was seen as the handmaiden of tolerance, freeing minority voices from majority control. But in recent years, this liberal consensus has fractured. Many have come to regard the absolutist position on free expression not as a bulwark of, but as an impediment to, a just and tolerant society. For many critics, hate speech is not merely distasteful and offensive, but serves to suppress the civil rights of historically neglected and oppressed minorities, such as women, people of color, and sex/gender outsiders. These critics hold that hate speech is so harmful to certain minorities that genuine social equality becomes impossible. In this conflict between the constitutional principles of freedom and equality, they argue that freedom of expression, not equality, must give way.

The IFRT program for the Chicago Annual Conference, slated for Saturday, July 8th 2:00 to 4:00 p.m. is entitled “Freedom of Expression Versus Tolerance: Exploring the Limits”. The program will focus on the question of whether hate speech and hate propaganda as forms of expression are so harmful that they are undeserving of First Amendment protection. This position has gained currency in many academic circles, particularly among law school faculty. Many, perhaps most, challenges to Intellectual Freedom emanate from the right of the political spectrum. Yet proponents of curbing hate speech often come from political backgrounds commonly associated with strong civil libertarian sympathies. Their arguments fuse a passionate egalitarianism with an extensive analysis of the harmful effects of hate speech. The result has rightly been described as a revolution in First Amendment theory.

The argument depriving hate speech of constitutional protection challenges the so-called “absolutist” interpretation of the First Amendment. Traditionally, this interpretation held that all but a narrowly defined spectrum of speech (libel, fighting words, obscenity) falls under the protection of the First Amendment. The argument for limiting hate speech and hate propaganda generally follows one of two lines: first, that hate speech is a form of “fighting words”, words that “by their very utterance inflict injury or tend to incite...” (Chaplinsky v. New Hampshire); second, that hate speech precipitates a conflict between the rights of free expression and equality, or, in constitutional terms, between the First and Fourteenth Amendments. There can be no racial and gender equality where the majority uses harmful forms of speech to maintain a racist and sexist social structure.

There are three analytical approaches that share a determination to limit hate speech. Critical race theorists hold that hate speech is a primary tool for ensuring dominance over historically persecuted minorities. In an America riven by racism, it is arguable that hate speech is a uniquely pernicious obstacle blocking the progress of economically, socially, and psychologically vulnerable minorities. Some gay, lesbian, bisexual, and transgendered advocates hold that hate speech leads directly to hate crime, and serves to keep sex/gender outsiders in a compliant state of silent fear. Some feminists have argued that pornography is nothing more than a form of hate speech that reinforces stereotypes and maintains the subservience of women through images of degradation and dominance. What all these perspectives share in common is the belief that hate speech is so powerful and harmful that the targeted individual is ultimately silenced and unable to respond. This challenges the traditional civil libertarian notion of answering bad speech with good, since hate speech deprives its targets of the very capacity to answer back.

For librarians, the issue is anything but academic. The question of hate speech confronts the practitioner with philosophical, psychological, and potentially legal challenges. Philosophically, the civil rights adherents who aim to limit hate speech bring to bear compelling and well-reasoned arguments that cause us to reflect on our commitment to First Amendment principles. Psychologically, advocates of limiting hate speech do so for reasons close to our hearts: equality, human dignity, fairness, and tolerance. Defending those who use hate speech to hurt and dominate others is a difficult and unpleasant task. Finally, the legal issues that may arise from restricting hate speech are unclear, and depend on whether such restrictions are based on criminal or civil law. But for librarians, the selection of materials deemed to be hate speech or hate propaganda holds the possibility of tort, or even criminal consequences.

The Chicago program will feature three prominent and exciting panelists who will discuss the legal and intellectual implications of hate speech. Richard Delgado is the John Lindsey Professor of Law at the University of Colorado School of Law. Professor Delgado is one of the foremost figures in the race critical movement, and is the author of numerous important books and articles dealing with hate speech. Julia Dawson is an attorney and longtime gay and lesbian and women’s rights activist in South Florida. Finally, Jane Whicher, the Senior Staff attorney for the ACLU of Illinois, will present a more traditional civil libertarian view on hate speech.

It is the hope of the Program Committee that this year’s session will be challenging and provocative. Our aim is to help our members understand the position of those who would limit hate speech, and the implications for Intellectual Freedom should their views prevail. We look forward to seeing you in Chicago.

List of Selected Readings

Delgado, Richard and Stefancic, Jean. Must we defend nazis?: Hate speech, pornography, and the new First Amendment. New York: New York University Press, 1997.

A thoughtful critique of the Absolutist position on the First Amendment. Delgado and Stefancic survey the major arguments regarding hate speech, and attempt to reconcile the rights of free speech and equality.

Karst, Kenneth L. “Boundries and reasons: Freedom of expression and the subordination of groups.” 1990 University of Illinois Law Review 95.

Karst argues that hate speech is used to dominate and marginalize outsider groups. He rejects the notion that the answer to “bad” speech is more “good” speech, as the primary effect of hate speech is to silence its target.

Lawrence, Charles R. III. “Frontiers of legal thought II: If he hollers, let him go: Regulating racist speech on campus”. 1990 Duke Law Journal 431. June, 1990.

An influential article that constructs a theoretical framework for campus speech codes.

Lederer, Laura, and Richard Delgado, eds. The price we pay: The case against racist speech, hate propaganda, and pornography. New York: Hill and Wang, 1995.

Articles and essays, most from a 1993 University of Chicago Law School conference, which examine the interrelationship of equality, free expression, and harm. A good overview of the deconstruction of classical civil libertarian thinking that is gaining prominence in many law schools.

Matsuda, Mari J. “Legal storytelling: Public response to racist speech: Considering the victim’s story.” August, 1989, 87 Michigan Law Review 2320.

Important article that attempted to show the demonstrable harm of racist hate speech.

Matsuda, Mari J. Charles R. Lawrence III, Richard Delgado, and Kimberle Williams Crenshaw. Words that wound: Critical race theory, assaultive speech, and the First Amendment. Boulder, CO: Westview Press, 1993

A compilation of articles that gives a good overview of the approach to hate speech by critical race theory.

Strum, Philippa, Human Rights Organizations in Civil Society.

“The role of human rights organizations is, in part, to support and legitimate the activities of other voluntary associations, thereby helping to make possible what we today call civil society.”

Zingo, Martha T. Sex/gender outsiders, hate speech, and freedom of expression: Can they say that about me? Westport, Connecticut: Praeger, 1998.

Though Zingo argues against speech suppression as an antidote to hate speech, the book contains an excellent overview of the various positions regarding freedom of speech and hate speech.

List of Important Cases

The legal history of hate speech represents an interesting and sometimes contradictory evolution.

Schenck v. United States 249 U.S. 47

Schenck was the first Supreme Court case to examine speech regulation. Allowed for the regulation of speech which presented a “clear and present danger”, such as Justice Holme’s famous example of a man shouting “fire!” in a crowded theater.

Gitlow v. New York 286 U.S. 652

Broadened the scope of speech that could be restricted to include any speech with a “natural tendency and probable effect...to bring about a substantive evil”. This allowed the government to suppress any expression which might cause some social harm.

Thomas v. Collins 323 U.S. 516

Severely restricted Gitlow with a stronger version of the “clear and present danger” doctrine of Schenck.

Dennis v. United States 341 U.S. 494

Upheld the Smith Act, which prohibited advocacy of the violent overthrow of the government. Served to weaken the “clear and present danger” requirement.

Chaplinsky v. New Hampshire 315 U.S. 568

Developed the doctrine of prohibiting “fighting words”

Gooding v Wilson, 405 US 518, 525-526

Modified Chaplinsky’s “fighting words” to those words which “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed”.

Beauharnais v. Illinois 343 U.S. 250

Determined that speech defaming racial groups is not constitutionally protected speech.

Village of Skokie v. National Socialist Party 366 N.E.2d 347 and Collin v. Smith 578 F.2d 1197

Two lower court decisions that narrowed and weakened Beauharnais.

Brandenberg v. Ohio 395 U. S. 444

The Court ruled that words that merely advocate, but do not incite violence, cannot be proscribed. One of the Court’s strongest affirmations of free expression; generally seen as severely weakening Chaplinsky and Beauharnais.

In decisions such as Ashton v. Kentucky (384 U.S. 195), Tinker v. Des Moines Independent Community School District (393 U.S. 503), and "Gooding v. Wilson (405 U.S. 518), The Court has consistently weakened the fighting words doctrine of Chaplinsky. The most recent decision of note, R.A.V. v. City of St. Paul (505 U.S. 307), overturned a local hate crimes statute as too broad, and came close to abandoning the fighting words doctrine altogether.

Links to non-ALA sites have been provided because these sites may have information of interest. Neither the American Library Association nor the Office for Intellectual Freedom nor the Intellectual Freedom Round Table necessarily endorses the views expressed or the facts presented on these sites; and furthermore, ALA and OIF and IFRT do not endorse any commercial products that may be advertised or available on these sites.