Should Hate Speech Be Free Speech?

In January this year, a federal grand jury added 13 federal hate crimes and six firearms offenses to the 44 federal counts previously levied against Robert Bowers, the gunman in the 2018 mass shooting in the Tree of Life synagogue in Pittsburgh.

The indictment reflects the United States’ official stance that a motive of group hatred is of a particularly malicious nature and, therefore, warrants punishing the perpetrator more severely than if the crime had been committed without the motive of group hatred. Prosecutors and judges rely on factors like the language used by the accused and the nature and severity of the attack to determine whether the attack was committed with a motive of group hatred.

Although the increased penalties provided by hate crime laws are motivated by considerations of retributive justice, protecting marginalized groups can also have deterrent and symbolic effects.

In the U.S. the benefits of protecting marginalized groups against hate crimes are thought to outweigh potential negative consequences, but this is not the official stance when it comes to hate speech.

U.S. Justices have deemed previous attempts to regulate hate speech unconstitutional on the grounds that hate speech laws infringe on the First and Fourteenth Amendments of the Constitution, which compel both state and federal government to protect the right to free speech. In recent cases, like Matal v. Tam, 582 U.S. ___ (2017), Supreme Court justices granted that hate speech is offensive, but maintain that imposing broad restrictions on offensive speech is unconstitutional.

The issue in Matal v. Tam (2017) was an anti-discrimination clause that prohibits the registration of trademarks that may “disparage” any “persons, living or dead, institutions, beliefs, or national symbols.” Pointing to the expressive function of trademarks, the Justices rejected the anti-discrimination clause as an unconstitutional restriction of viewpoints.

Although hate speech remains unregulated in the U.S., not all speech is constitutionally protected. Speech that remains unprotected by the First and Fourteenth Amendments includes fraud, perjury, blackmail, bribery, true threats, fighting words, child pornography and other forms of obscenity, speech of strong governmental interest, such as political commentary and unfair trade practices, and speech that isn’t of public interest, such as defamation and intimidation that occur in the context of a private dispute. But laws prohibiting these kinds of speech do not count as hate speech laws, because they do not offer special protection for marginalized groups.

Two recent cases can help shed light on the difference between hate crimes and hate speech. On January 21, 2019, a group of teens on bicycles, calling themselves “Bikes Up Guns Down,” were blocking traffic in downtown Miami in a protest of the lack of affordable housing in Liberty City. A passerby, Dana Scalione, who had gotten out of her SUV, started screaming at one of the teens and shoving his bicycle for allegedly having run over her foot with a bicycle. Scalione’s boyfriend Mark Allen Bartlett also jumped out of the car, aggressively approaching, wielding his gun and repeatedly hurling racial slurs at the kids.

A bystander called the police, who arrested Bartlett for carrying a concealed firearm without a permit, a third-degree felony.

The teens later filed a civil lawsuit, stating that Bartlett and Scalione violated Florida’s hate crimes statute and demanding a jury trial (Joseph v. Scalione, Filing #84113459, (Fl. 11th Cir. 2019)). The statute provides a cause of action for treble damages, which means that a court is permitted to triple the amount of monetary compensation to be awarded to a plaintiff.

On February 19, 2019, State Attorney Katherine Fernandez Rundle brought enhanced criminal charges against Bartlett, charging him with improper exhibition of a firearm, enhanced to a third-degree felony, and three counts of aggravated assault with prejudice, enhanced to second-degree felonies.

The Florida hate crimes statute provides increased minimum and maximum penalties for crimes based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim. For example, Florida law increases a charge of improper exhibition of a firearm, a first-degree misdemeanor, to a third-degree felony. Although the law does not legislate against hate speech under that heading, the fact that Bartlett hurled racial slurs at the teens is not an irrelevant factor in how the suit is settled. It’s key evidence in establishing whether his threatening behavior constitutes a hate crime.

A second case that can help shed light on the distinction between hate crimes and hate speech is a federal court decision in November 2018 allowing a case against Andrew Anglin, the publisher of the neo-Nazi website Daily Stormer, to proceed to civil court.

Anglin encouraged his readers to harass Tanya Gersh, a Jewish realtor in Montana, after she became involved in a real-estate dispute with Sherry Spencer, the mother of white nationalist Richard Spencer, in the Montana town of Whitefish in 2016. “Hit Em Up[.] Are y'all ready for an old fashioned Troll Storm? […] Tell them you are sickened by their Jew agenda to attack and harm the mother of someone whom they disagree with,” Anglin wrote, according to the suit.

Gersh filed a civil complaint in the spring of 2017, after “she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards.” The suit makes claims under “Montana law for invasion of privacy, intentional infliction of emotional distress, and violations of the Anti-Intimidation Act.”

Anglin initially tried to get the lawsuit dismissed on First Amendment grounds. But in November 2018, U.S. District Judge Dana L. Christensen ruled that it could proceed, stating that Anglin’s call for harassment was not intended to inform the public about a matter of public concern, but was instead based on Anglin’s “personal hostilities”:

“[N]ot all speech is of equal First Amendment importance,” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous." Snyder, 562 U.S. at 452 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). This is so because the regulation of "speech on matters of purely private concern" does not "threat[ en] the free and robust debate of public issues" or "potential[ly] interfere[] with a meaningful dialogue of ideas." —Dun & Bradstreet, 472 U.S. at 760. (Gersh v. Anglin 9:2017cv00050 (D. Mont. 2018)).

The Court added that “The ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Rankin v. McPherson, 483 U.S. 378, 387 (1987) […] Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh.”

Marc Randazza, who represents Anglin, told the media that the judge’s decision is “dangerous for free speech,” warning that it could be used to curtail free speech in other forums.

But this is not implied by anything in the Court’s opinion or decision. On the contrary, the Court explicitly stated that “The Court cannot find that Anglin' s speech is unprotected on the basis that it evinces a morally and factually indefensible worldview.” But, conversely, the Court also could not (and did not) find that Anglin's speech is entitled to special protection. Anglin’s attack on Gersh was personal in character and not fair comment of public concern. So, it isn’t entitled to special federal protection.

The upshot is that while there are exceptions to the constitutional protection of speech in the U.S., hate speech remains unregulated under that heading. But one wonders, is speech really all that different from physical violence, including threats of physical violence?

We know that words can injure. If a person verbally abuses you, their words are intended to cause you emotional harm. Verbal abuse is emotional violence, or assault.

Words can injure, because they are not always used to innocently describe how things are, but also to perform actions. We do things with words. Sometimes we warn people, sometimes we hurt them.

The actions we perform with words are called speech acts. When you make a promise, threaten, apologize, warn, demand, order, joke, tease, belittle, undermine, blame, criticize, humiliate, insult, degrade, and so on, you are using speech to perform an action.

Whenever you say something, you perform one or more speech acts. If you say, “There is a bull behind the fence,” you could be warning the listener not to enter the fenced area, or you could be making a promise, which you could also have expressed more explicitly by saying, “There is a bull behind the fence, I promise. I wouldn’t have made you walk this far if there wasn’t.”

“I promise that there is a bull behind the fence!” and “I am warning you not to enter!” are direct speech acts, because they make it explicit what the speaker is doing.

When you just say, “There is a bull behind the fence,” this is called an indirect speech act, because you are not explicitly saying what act you are performing with your words.

When you make an indirect speech act, you are doing one thing with your words that’s explicit, but at the same time you are doing something else that you haven’t explicitly mentioned. For example, you can use “I am telling you that there is a bull behind the fence” to inform (a direct speech act) and to issue a warning (an indirect speech act).

Verbal assault is a speech act that can be direct or indirect. If your fiancé tells you: “I demand that you quit your job now that we are married,” she is explicitly using her words to make a disrespectful demand in a direct way. If she says, “Call your boss right now!” she is not explicitly saying what speech act she is intending to make, but she could be intending to use her words to make an indirect threat.

Hate speech is verbal abuse that targets one or more people because of their group identity. The real motive behind all verbal abuse, regardless of its nature, is to retaliate against you, or to gain or retain control over you, or to prevent you from getting what you deserve.

Hate speech is no different. Hate speakers target representatives of a group or the whole group in order to retaliate against the group, gain or retain control over the group, or prevent them from getting what they deserve. But retaliation and oppression are morally wrong. So, it would seem that hate speech is morally wrong.

The law doesn’t prohibit all (or only) morally wrong acts, however. It only proscribes conduct that is threatening, injuring, or otherwise endangering to private property or people’s health or safety. So cheating on your boyfriend wouldn’t be legally prohibited, even though it might be morally wrong.

But if the law proscribes acts that are threatening, injuring, or otherwise endangering to private property or people’s health or safety, why doesn’t it automatically prohibit hate speech? Didn’t we just establish that hate speech injures people?

Not quite. A person who is verbally assaulted, perhaps repeatedly, does ordinarily suffer emotional harm, but the law tends to shy away from regulating emotionally harmful activities. This is because it is very hard to distinguish between emotional harm that is a direct result of an act and emotional harm that is merely indirect, or what is also known as a secondary injury. A secondary injury is trauma, depression, or other mental illness that occurs weeks, months, or years after the initial or primary injury, often brought about by a lack of a proper support system or re-stigmatization. Family members, partners, friends, police officers, prosecutors, judges, social workers, the media, coroners, clergy, and even mental health professionals can cause secondary injury, which makes attributing secondary injury to the person who caused the initial injury questionable.

Even when hate speech does not cause long-term emotional damage, it tends to be hurtful. So why don’t we simply conclude that hate speech is damaging, because it hurts people’s feelings? One problem with this suggestion is that hate speech doesn’t always hurt people’s feelings. A target who is unusually tough, didn’t hear what was said, or didn’t grasp what was conveyed might not get hurt.

There are other ways in which the law could classify hate speech as harmful, however. For example, as argued by law professor Jeremy Waldron, the harm of hate speech might be taken to lie in its defamatory nature.

I will look closer at this suggestion in a subsequent blog post.