* Despite the varying definitions that have been adopted and proposed in “hate speech” laws, they all share two fundamental First Amendment flaws: they violate the cardinal viewpoint neutrality and emergency principles by permitting government to suppress speech solely because its message is disfavored, disturbing, or feared, and not because it directly causes imminent serious harm. Empowering government to choose the words and ideas we may not utter or listen to for these reasons stifles our freedom of thought, which is the essence of individual autonomy, and also an essential building block for democratic self-government.
Moreover, “hate speech” laws also share a third basic First Amendment flaw, which flows from the first two: they are unduly vague and impermissibly overbroad, thus necessitating enforcement according to the subjective standards of complainants and enforcing authorities. While “hate speech” laws can be drafted with differing degrees of precision and breadth, they all center on concepts that call for subjective judgments, starting with the very concept of “hate” itself. Because these laws do not comply with the emergency or viewpoint neutrality principles, they lack the constraints that those principles impose on government discretion. Once government is authorized to suppress speech because of a feared harmful tendency or because of its disfavored, disturbing viewpoint, government has largely unfettered censorial power. In the United States, virtually all campus “hate speech” codes that courts have reviewed have been struck down on grounds of undue vagueness and overbreadth. Likewise, the language that has been used in other countries’ “hate speech” laws demonstrates that, despite their many differences in detail, they all license government to make discretionary, subjective judgments targeting an expansive range of speech.
* the Supreme Court steadily has reduced government’s power to punish speech solely because its message is disfavored, disturbing, or feared. Instead, government may punish speech that relates to public issues, including “hate speech,” only when it directly causes a specific, imminent, serious harm, such as inciting imminent violent or illegal conduct. These requirements curb government’s censorial power, reducing the risk that it will be wielded only or primarily to suppress unpopular ideas.
Unleashing government’s power to silence ideas that are disfavored, disturbing, or feared not only undermines liberty and democracy; it also subverts the equality goals that animate “hate speech” laws. Such laws are predictably enforced to suppress unpopular speakers and ideas, and too often they even are enforced to stifle speech of the vulnerable, marginalized minority groups they are designed to protect.
These problems follow from the premises of “hate speech” law proponents themselves. They contend that our societal institutions, including the criminal and civil justice systems, reflect entrenched racism and other types of discrimination. They also point to the implicit or unconscious biases that our culture has engrained in us. Given these realities, it is predictable that the institutions and individuals enforcing “hate speech” laws will not do so in a way that is helpful to minorities. The actual enforcement record of “hate speech” laws around the world, discussed throughout this book, demonstrates that this predictable pattern in fact has materialized, including in developed democracies.
* The leading pro-slavery advocate, Senator John C. Calhoun, argued that abolitionists who criticized slavery “libeled the South and inflicted emotional injury.” During the 1830s, many Southern states enacted laws suppressing abolitionist speech, which was feared to spur violence—in particular, slave rebellions—and indeed to threaten the nation’s very survival. Legal historian Michael Kent Curtis has observed that even many Northerners shared the widespread “assumption that abolitionist publications would lead to slave rebellions.” Likewise, Martin Luther King, Jr.’s historic letter came from a Birmingham jail because he had sought to condemn racial segregation and discrimination to audiences who hated and feared those messages.
* • In 2017, two British street preachers were convicted for preaching from the Bible, including statements that were deemed insulting to LGBT persons and Muslims. The prosecutor told the Court: “[A]lthough the words preached are included in a version of the Bible in 1611, this does not mean that they are not capable of amounting to a [criminal] offense in 2016.”
• In 2016, a Danish appellate court affirmed a lower court’s conviction of a man who had posted Facebook comments criticizing “[t]he ideology of Islam,” charging that “Islam wants to abuse democracy in order to get rid of democracy.”
• In 2016, Laure Pora, who headed the Paris chapter of the LGBT rights organization ACT-UP, was fined €2,300 for applying the term “homophobe” to Ludovine de La Rochère, the president of an organization that defends “traditional family values” and opposes same-sex marriage; ACT-UP activists had posted flyers featuring de La Rochère with the word “homophobe” over her face.
• In 2015, France’s highest court upheld criminal convictions and fines totaling $14,500 for twelve pro-Palestinian activists who went to supermarkets wearing T-shirts with the message “Long live Palestine, boycott Israel,” and handed out flyers that said “buying Israeli products means legitimizing crimes in Gaza.”
• In 2014, a British church was sanctioned for displaying a sign on its property showing burning flames and stating, “If you think there is no God you better be right!!”
• In 2013, a Catholic bishop in Switzerland was subject to a criminal complaint and investigation for quoting Old Testament passages about homosexuality during a debate on marriage and the family.
• In 2011, an Australian journalist and his newspaper employer were convicted because of his columns complaining that “there are fair-skinned people in Australia with essentially European ancestry . . . who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal.”
• In 2010, a Danish historian and journalist was convicted for saying during an interview that there was a high crime rate in areas with high Muslim populations.
• In 2010, Polish police criminally charged two singers because of critical statements they made about the Bible and the Catholic Church. One had said that the Bible was “unbelievable” and had been written by people “drunk on wine and smoking some kind of herbs.” The other allegedly said, during a performance, that the Catholic Church was “the most murderous cult on the planet,” and he tore up a copy of the Bible.
• In 2009, an Austrian Member of Parliament was convicted, sentenced to a prison term (which was suspended), and fined €24,000 because she said that “in today’s system” Muhammad would be considered a child molester, since his wife Aisha was believed to be around 6 or 7 years old when they were married and 9 years old when they consummated the marriage.
• In 2008, a 15-year-old British boy was charged by police and investigated by prosecutors because he displayed a sign during a peaceful demonstration reading: “Scientology is not a religion, it is a dangerous cult.”
• In 2008, the Canadian weekly magazine Maclean’s was subjected to proceedings before multiple enforcement bodies because articles it had published were allegedly Islamophobic.
• In 2008, Brigitte Bardot, French former film star and longtime animal rights activist, was convicted and fined €15,000 for writing a letter to then–Interior Minister Nicolas Sarkozy complaining about Muslims’ ritual slaughter of sheep and stating that Muslims are “destroying our country by imposing their ways.”
• In 2005, the French newspaper Le Monde was found guilty of inciting hatred against Jews because of a 2002 editorial that criticized certain Israeli policies while referring to Israel as “a nation of refugees.”
• In 2001, a Dutch imam was prosecuted because he said during a national TV interview that homosexual behavior was “detrimental to Dutch society” and an “infectious disease,” citing the Qu’ran and other Muslim texts.
• In 1999, Britain’s then–Home Secretary Jack Straw was subjected to a formal investigation for inciting racial hatred against the Roma because he had said that some criminal activity was carried out by people who posed as “gypsies” or “travelers.”
PRIVATE-SECTOR INSTITUTIONS SHOULD PROTECT FREE SPEECH
“[Social media] platforms—although not formally bound by the First Amendment—have a democratic obligation to embrace something close to the constitutional standard. . . . Like universities and media outlets, online speech platforms should not be safe spaces. They should be democratic spaces, with the ultimate victors in the clash of ideas determined by reason and deliberation . . .”
—George Washington University law professor Jeffrey Rosen
“I woke up in a bad mood and decided [the Daily Stormer ] shouldn’t be allowed on the Internet. No one should have that power. [A Cloudflare employee] asked after I told him [about this decision]: ‘Is this the day the Internet dies?’ ”
—Matthew Prince, CEO of Cloudflare
I concur with Jeffrey Rosen and Matthew Prince that certain powerful private-sector actors, which are not directly subject to constitutional constraints because they are not part of the government, should nonetheless respect the free speech rights of others over whom they exercise power.
* online intermediaries that operate internationally must comply with laws in other countries that are less speech-protective than the United States, including “hate speech” laws. Even so, the online companies can opt for “geo-blocking,” confining the restrictive measures to the pertinent geographical territory. In short, to the maximum extent feasible, these important institutions should wield their vast power consistent with the core speech-protective viewpoint neutrality and emergency principles.
* 1. There is insufficient evidence that constitutionally protected “hate speech” (as distinguished from “hate speech” that is already punishable) materially contributes to the harms that are said to warrant its suppression.
2. Even if there were sufficient evidence that constitutionally protected “hate speech” did materially contribute to these feared harms, “hate speech” laws would not effectively reduce the feared harms.
3. Even if there were sufficient evidence that constitutionally protected “hate speech” did materially contribute to the feared harms, and even if “hate speech” laws would meaningfully reduce these feared harms, these laws should still be rejected because of the damage they would do to freedom of speech and democratic legitimacy, as well as to equality and societal harmony.