Should Hate Speech Be Censored?

Hate speech is not a legal term of art. In everyday speech, we tend to use the term “hate speech” to refer to speech that conveys hateful or discriminatory or stereotyped ideas on the basis of factors such as race, religion, gender, sexual orientation, and so forth. On some college campuses, the word Trump, after Donald Trump was elected president, was attacked as hate speech. Some people have attacked Black Lives Matter as hate speech.

Some have attacked Blue Lives Matter as hate speech.

Some have attacked All Lives Matter as hate speech. Most chillingly to me, on a number of college campuses, including some that I have visited, the phrase “free speech” has been attacked as hate speech. So, basically, what it comes down to is any speech conveying any idea that the person using the term hate speech hates and strongly disagrees with. Freedom of speech in the United States today as a matter of law is greatly protected. We have a Supreme Court that despite its ideological diversity and despite the justice’s strong disagreements on many issues of constitutional law, they are by and large united and have been for many decades in very strongly protecting even extremely controversial and unpopular speech; everything from flag burning to so-called crush videos, to funeral protests that insult members of the American military, to hate speech.

The U.S. Supreme Court has interpreted the First Amendment to allow government to restrict speech when the speech directly causes certain imminent specific harm. So, for example, if the speech constitutes a true threat that intends to instill in the persons to whom it is targeted an objective reasonable fear that they are going to be subject to attack, that speech can and should be punished.

If the speech intentionally incites imminent violence or if the speech is targeted face to face, bullying or harassment that impedes the privacy and freedom of the person to whom this speech is targeted, that can and should be punished.

The best argument in favor of regulating hate speech is when it satisfies the emergency principle: when it causes directly a specific imminent, serious harm and there’s no other way to prevent that harm.

The best arguments against regulating hate speech are that it does more harm than good. Censorship is completely inconsistent with individual liberty, equality, and, indeed, democracy itself. Censorship does more harm than good to the very causes that advocates of censoring hate speech hope to advance. Those goals are actually undermined through censorship rather than promoted by them.

Freedom of speech is essential to our democratic self-government. Where we the people have the sovereign power, we cannot exercise that responsively or meaningfully unless we have access to information about our government and the opportunity to communicate with those, we elect to represent us and we cannot hold them accountable unless we are able to exercise robust freedom of speech, including the freedom to strongly criticize government officials and government policies. If people understood first amendment principles and the very sensible line that they draw between hated and hateful speech that is constitutionally protected and hated and hateful speech that is not constitutionally protected, they would be very supportive of those principles. Those who are advocating on campus for human rights, and equal rights, and dignity, racial justice, gender justice, those causes all depend on very robust free speech protection, sufficiently robust to extend to speech that some people would attack as hate speech.

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