Monday, April 24, 2017

Hate Speech Is Free Speech, But Maybe It Shouldn't Be

by Michael Dorf
(cross-posted on Take Care)

A student group at UC Berkeley invited Ann Coulter to speak. The event was cancelled due to ostensible security concerns in circumstances that led most reasonable observers (including me) to conclude that a substantial part of the reason Coulter was uninvited was the unpopularity of her views. There followed a round of condemnation of Berkeley and the presumably liberal "snowflake" millennial students who can't handle speech that spreads messages they find offensive, with the condemnation coming not only from the right but also from people who strongly disagree with Coulter (e.g., Coulter's fellow Cornell alum Bill Maher).

Enter Howard Dean, who defended Berkeley's rescission of its invitation on the ground that "hate speech is not protected by the first amendment." Numerous commentators correctly pointed out that under existing case law hate speech is protected by the First Amendment, with a Volokh Conspiracy piece by Eugene Volokh laying out the basics effectively.

Dean doubled down, citing a 1942 case, Chaplinsky v. New Hampshire as supposed authority for the view that the First Amendment does not protect hate speech. Dean is clearly wrong about Chaplinsky, however.

And so we learn that a medical doctor who served as governor of Vermont does not know a whole lot about constitutional doctrine. Quelle surprise! This episode would be mildly amusing, were it not for the fact that as a story of ignorance in high places it seems wholly inconsequential when compared to the fact that we have a former real estate developer/reality tv star for a president, and he does not even know how many articles the Constitution contains, much less what any of them says.

Turning back to Dean, we can grant that he was clearly wrong in his description of current case law. But the issue he raised is more complicated than the legal and journalistic establishment seem prepared to acknowledge.

U.S. free speech case law is an outlier within the democratic world. National constitutions and treaty documents protecting free speech and free press in virtually every other democratic country protect free speech but subject it to being overridden in order to protect vulnerable individuals and groups against hatred and ridicule.

Canada is an instructive and fairly typical example. The Charter of Rights and Freedoms (Canada's equivalent of the U.S. Bill of Rights plus Fourteenth Amendment) protects, among other things, "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," which, like all Charter rights, are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." On its face, that language is not very different from how the U.S. Supreme Court has construed our First Amendment. Although the language of the latter makes no express exceptions (as Justice Hugo Black was fond of saying), case law does: laws that restrict speech based on content must be "narrowly tailored to advance a compelling interest."

To be sure, our Supreme Court has construed its judge-made strict scrutiny test more strictly than the Supreme Court of Canada has construed the language of the Charter. Thus, in the 1990 decision in Canada (Human Rights Commission) v. Taylor, the Supreme Court of Canada upheld the use of the Canadian Human Rights Act to proscribe non-violent "statements denigrating the Jewish race and religion" against a challenge under the Charter. In 2013, the Supreme Court of Canada upheld the application of the Saskatchewan Human Rights Code to an anti-gay pamphleteer. By contrast, similar challenges under the First Amendment would have succeeded in the U.S.

Although the U.S. thus clearly differs from other democracies in its protection for hate speech, there does not appear to have been anything inevitable about American free speech exceptionalism. A different U.S. Supreme Court could well have gone the route that Canada and just about every other democratic country has gone. In 1918--just a few years before he would come to be lionized as a free speech hero--Oliver Wendell Holmes, Jr. wrote in a letter to Learned Hand that, so far as Holmes was concerned, free speech "stands no differently than freedom from vaccination." Even as a description of U.S. free speech case law, that statement would continue to be true until roughly the 1950s. Had the ensuing years unfolded a bit differently, it might still be true today. American free speech exceptionalism may simply be a historical accident.

Indeed, the protection for hate speech under the First Amendment is something of a double accident. The SCOTUS could have said--as its Canadian counterpart said in Taylor--that regulations of hate speech infringe free speech but that they do so justifiably in light of the harm hate speech does. Or the SCOTUS could have ruled that hate speech falls into an unprotected category in the way that obscenity, fighting words, and incitement do. True, in 2010 in United States v. Stevens, the SCOTUS said that the list of unprotected categories was based on history, but that claim is, not to put too fine a point on it, false (as my colleague Steven Shiffrin amply demonstrates in his 2016 book What's Wrong With the First Amendment). A different Supreme Court might well have recognized hate speech as categorically unprotected.

Thus, commentators who treat American free speech doctrine as a beautiful well-integrated edifice that would crumble were hate-speech excepted from protection are wrong. Free speech doctrine contains a few organizing principles but, like most complex areas of the law, also includes a hodgepodge of exceptions and somewhat arbitrary lines. Carving out hate speech would no doubt require more such lines, but as experience in other countries that we generally regard as small-l liberal and small-d democratic shows, doing so would not be the end of free speech in America.

France is a case in point. As yesterday's first-round presidential election result showed, France's hate speech law did not prevent effective political organizing by Marine Le Pen and her National Front party. She will likely lose the runoff, but that has nothing to do with the regulation of hate speech. Popular support for the National Front's political programs--like restricting immigration and exiting the EU--may in fact be driven by racism, but so long as politicians avoid expressing their support for the program in expressly racist terms, they can thrive. The rise of right-wing populism in Europe more or less simultaneously with its rise in the U.S. undercuts the notion that hate speech regulation stifles political discourse. Of course it is possible for a country to use hate speech laws pretextually to suppress dissidents or to go too far in other ways, and one can point to particular troubling examples, but on the whole, the experience of the democratic world in the last seven decades shows that hate speech regulation can be consistent with liberal democracy.

To be clear, none of the foregoing is meant to suggest that I actually prefer the European/Canadian approach to hate speech to the American approach. I don't.

I would also note that the threat to free speech by Coulter and other right-wing speakers is chiefly coming from private actors threatening violence. Whatever one's views about regulating hate speech, those actors must be condemned. Insofar as Howard Dean's tweets could be seen as endorsing the threatened use of violence against unpopular speakers, Dean should also be condemned. I think it highly unlikely that Dean intended to convey support for violent suppression of Coulter's views, but if he did, I hereby condemn him along with anyone who threatens violence in response to unpopular or offensive views.

Still, the matter of hate speech regulation more generally persists. I raise that more general issue in order to question the response of legal elites to Dean's broader implications. My point is that we oughtn't to confuse the familiar with the necessary.

American lawyers who went to law school in the last sixty years--which is to say just about all current American lawyers--were educated to believe that protection for the thought we hate is the central principle of the First Amendment and that hate speech regulation is inimical to such protection. One might even say we were indoctrinated in this belief. It is therefore understandable that we find it natural. Thus, ironically, an indoctrinated belief about free speech leads American lawyers to dismiss without even considering the idea that regulation of hate speech could be consistent with liberal democracy. Yet a culture of free speech is supposed to make us more, not less, open to ideas that we find unfamiliar.

American constitutional protection for hate speech might not last forever. We have seen before how a fringe idea about the Bill of Rights can become mainstream. Fifty years ago, if a politician or other prominent figure pronounced that "private handgun possession is protected by the second amendment," constitutional scholars would have written op-eds patronizingly explaining that the case law rejects this view. Then a coordinated political, social, and scholarly movement sought to change that reality, eventually succeeding when the Supreme Court endorsed the formerly dissident view of the Second Amendment in 2008 in District of Columbia v. Heller.

Something similar could happen with respect to hate speech. A movement to treat hate speech as beyond the pale--perhaps as part of a backlash against Trumpism--could, given enough time, result in political changes and transformative judicial appointments. A SCOTUS majority might then announce that when it comes to hate speech, the U.S. is not an exception to the rest of the democratic world after all. At that point, Howard Dean would seem less like a constitutional ignoramus and more like a prophet.


el roam said...

Thanks for that interesting post , the hate speech , is a very particular and sensitive issue , this is because , it has to do , merely almost , with the content of the expression , and much less , with what is called : Effective free speech ( or " passive " , means : the right means and infrastructure , controlled typically by state authority , to interfere effectively , with the means and possibilities , not only to express privately ideas just for voicing it , but , effectively to publically express it and change reality , like : right to assemble , protest and so forth ….. ) .
The Israeli state, is a very interesting illustration: many ethnic groups, bitter rivalry (and even enmity) and of course, security issues, while, the regime itself, is democratic, liberal, by all means so. So how would you draw the balance .

The consensus, is typically , very clear , if there is imminent danger, stemming from hate speech, that violence shall occur and breakout, then, it is passing or crossing red lines. Yet , that may not be always the intent or reasonable prediction of the speaker . Here for example I quote from the penal code of the Israeli state ( common law in fact ) :

Incitement to violence or terror 144D2.

(a) If a person publishes a call to commit an act of violence or terror, or praise, words of approval, encouragement, support or identification with an act of violence or terror (in this section: inciting publication) and if – because of the inciting publication's contents and the circumstances under which it was made public there is a real possibility that it will result in acts of violence or terror, then he is liable to five years imprisonment.

End of quotation :

So we read clearly : " real possibility that it will result in acts of violence or terror, then he is liable to five years imprisonment " .

Yet , it is hard sometimes , to distinguish , between , legitimate ideology , and hate folded within . Let's take example from , the citing of holy scriptures . Sometimes, you may find, amazing hate expressed in holy scripture, yet, if forbidden , would interfere with freedom of exercising religion , by itself, constitutional right . Here I quote from the Israeli penal code again: article 144 B provides clearly the title:

Publication of racist incitement is prohibited 144B

So , incitement of racism is prohibited , And here one exemption :

Permissible publication 144C

(b) Publication of quotes from religious scriptures or prayer books or the observance of a religious ritual shall not be deemed an offense under section 144B, on condition that it was not intended to cause racism.

End of quotation :

So , the intent of the speaker ? this is a prayer book , it is the divine word , what would be the intent then ??

It is very hard to distinguish , hate from ideology . Here we have , a hell of issue .


Patrick S. O'Donnell said...
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Patrick S. O'Donnell said...
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Patrick S. O'Donnell said...
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el roam said...

Just clarification :

The hate speech is not merely about content of expression , but rather the central issue typically . The " effective free speech " , is always a given and issue , whatever the content .

And, illustration to my above comment ( blending ideology , religion with hate ) one may read , an Arab priest , an Israeli citizen , indicted for incitement , while religious content was involved , here :


Joe said...

The '1950s' comment seems a bit much, various cases in the 1930s and 1940s repeatedly referencing freedom of speech as special, a step above freedom from vaccination.

Justice Holmes himself soon changed his tune, at least his opinions showed that.

Anyway, freedom of speech is seen as a basic right world-wide, some formulation understood to be a basic human right. OTOH, there are various regulations allowed beyond what is allowed in the U.S. The law of libel here and the UK is an example.

I think some of the different policies are better than others and this includes the outer limits of regulation of hate speech. Not inclined to change our policies there, but the strident tones sometimes used by Prof. Volokh (including addressing harassment in high schools, to cite a past debate over at his blog), suggests there is probably room to debate here.

Still, when dealing with the speech of Ann Coulter, which properly can be cited as "hateful," that isn't the sort of thing that shouldn't be protected. Dean has his um moments like suggesting maybe it would be a good idea not to have a Islamic center in Lower Manhattan because of the opposition. Nice to make it a learning moment.

Joe said...

One more thing ... This blog earlier referenced "What's Wrong with the First Amendment" by Steven H. Shiffrin. I read the book. Disagreed strongly with some of it. Still, important alternative perspectives.

Steve Davis said...

This is a thoughtful and interesting article. It's good to be reminded that doctrines we often regard as rock-solid are more tenuous or less widely held than we think they are.

I take issue with a sentence, though:

"The rise of right-wing populism in Europe more or less simultaneously with its rise in the U.S. undercuts the notion that hate speech regulation stifles political discourse."

That's not necessarily true. It's entirely possible for political discourse to be stifled, and for a political movement to arise nevertheless, perhaps partly in reaction to the stifling. In fact, it's been common, historically, to see political protest movements arise in response to restrictions on basic liberties. That they arise is not proof that the restrictions aren't having a significant, and bad, effect. I think that the rise of "hate speech" doctrine here and in Europe has, in fact, played a role in the rise of certain right-wing elements, and I think it's played a role in the rise of Donald Trump. It's an open question how much a factor it is, but I tend to think it's a big one.

Michael C. Dorf said...

Joe questions my assignment of the 1950s as roughly the time when the SCOTUS finally moves away from the view Holmes expressed in his letter to hand. But that's not just my assessment. That's pretty much the consensus view. See, for example, chapter 5 in Geoffrey Stone's book Perilous Times, where, following the Court's pretty timid performance in response to McCarthyism, Stone places the precise date at 1957. Sure, there were precursors, especially the holding of and soaring language in West Va State Bd. of Educ v. Barnette, in 1943. But the doctrine doesn't systematically change until the late 1950s.

Steve Davis is right as a conceptual matter but I disagree on the particulars. Indeed, it's notable that Trump campaigned against "political correctness" in the country with the most robust protection for free speech in the world, whereas part of the appeal of Marine Le Pen to a relatively broad (>20%) of the French public, by contrast with her late father, is that her rhetoric is less incendiary. So the points Steve makes strike me as cultural rather than simply legal.

Shag from Brookline said...

While it is said no two snowflakes are alike, the term "snowflakes" may be off putting. Ulrich Baer's NYTimes "The Stone" Op-Ed "What 'Snowflakes' Get Right About Free Speech" projects the recent past to the present and perhaps to the future (along the lines suggested by Mike).

Joe said...

"Geoffrey Stone's book Perilous Times, where, following the Court's pretty timid performance in response to McCarthyism, Stone places the precise date at 1957."

The Supreme Court slipped backward there but even in that sense, was even Dennis v. U.S. et. al. really on par with how vaccination was treated? In effect, communists became one of the exceptions. Barnette was but a high point.

But, there were numerous cases in the 1930s and 1940s protecting speech. Vaccination simply did not have that level of concern. This is true even if the intensity of protection, firmly in place, went up a level later. And, since I'm carping, I would wait until after Frankfurter left, the so-called "Red Monday" cases followed by some back-slipping.

egarber said...

In the context of Virginia v Black, suppose a speaker at Berkley wore a KKK hood and "explained" how black people are inferior and don't deserve to "live among us." Does that potentially cross the line into the intimidation Jusitice O'Connor described in that case? I'm guessing no, short of explicit calls to go after people....

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Shag from Brookline said...

Regarding Mike's suggestion that "American constitutional protection for hate speech might not last forever.", might originalism come to the rescue? Over at the Liberty Blog Kurt Lash has an interesting post "Originalism and the Future of Religious Freedom" with his eye on Trinity Lutheran Church v. Comer currently before the Court. Lash focuses upon the original public meaning of the 14th A as it relates to those provisions of the Bill of Rights incorporated via the 14th A. Should the focus be on the original public meaning of the 1st A in 1791 or when the 14th A was ratified in 1868? If the latter, would that apply not only at the state level but also at the federal level? Lash makes reference to the 1st A's speech clause and the Alien and Sedition Acts of 1789. Lash credits Justice Thomas for recognizing this rethinking of the 14th A. Various clauses of the 1st A were incorporated by the Court at different times in several cases during the 20th century. See Wikipedia on Incorporation at:

I have no idea what answer originalism might have but as Lash points out Justice Thomas now has the company of Justice Gorsuch. Is it possible that in 1868 hate speech was not protected by the speech clause of the 1st A?

Keith Kaplan said...

It's interesting that you quote Heller as an example of a doctrinal shift in how rights can wax & wane. J. Scalia sharply criticizes the dissent of J. Stevens when he claims that a first amendment right such as "freedom of assembly" is a collective right as opposed to an individual right. Reading the amendment as applying to groups and subjecting it to majoritarian predilections can certain result in Gov. Dean's tweets become prescient.

A republic... if you can keep it.

Thanks for the thoughts.

David Graubert said...

Let's consider one current controversy:

"Vanguard America, a white nationalist group, tweeted a photo of "hate facts," targeting immigrants, racial minorities, and women. The photo also singled out the over-representation of Jews at the University."


Aside from the First Amendment doctrinal law regarding a "hate speech" category, and aside from effectiveness/ineffectiveness of, say, private university efforts to restrict such expression (being unencumbered by First Amendment limits on regulation), let's consider the desirability of speech regulation here in terms of effects on the prevalence of prejudice, animus, stereotypes and other related views. Might suppression be counterproductive, in this regard? If so, is it just a matter of fine tailoring the cloak?

I can only offer my own opinion on the matter, which, merely from framing the issue thus, would likely not be hard to guess. I think that suppression by authorities merely plays into the paranoid ideology and, even if not paranoid - consider, for example, the Stalinist thought police - speech (and thought) suppression is generally counterproductive. Counter-speech, on the other hand, is most certainly productive (just as much as, it is surely true, hate speech can itself affect attitudes).

We do not have enough counter-speech. Changing narratives can be enormously influential (take the Catholic Church and the deicide charge). And, of course, the government generally can, when it is a speaker rather than a regulator of speech, engage in viewpoint discrimination - and not just in public education. Rather, however, the model is the use of force by government to deal with conflicts. Hate speech cannot be removed from the overall socio-cultural-political context.

The urge to suppress the dissemination of harmful views is easy. Peaceful confrontation, at last when we are not simply shouting at each other, is the answer. And that, I think it's clear, is not aided by gagging speakers. And, that's apart from the Pandora's Box / slippery slope / definitional problem, which makes making "hate speech" categorically proscribable a fool's errand. And, I'm not even talking about the collateral damage that any content suppression has. Can't we have our 14th Am. and 1st Am., too?

Shag from Brookline said...

Yes, as David G. says, "We do not have enough counter-speech." Why is that? Ruth Coustick-Deal's Feb., 2017 "What's wrong with counter-speech?" may provide some answers. Check it out:

Here's my counter-speech to Vanguard America's "hate facts" tweet: "EL TORO DROPPINGS!." (Keeping it polite as this is a family blog.)

Joe said...

J. Stevens when he claims that a first amendment right such as "freedom of assembly" is a collective right as opposed to an individual right

The relevant section explains how "the people" is used in various amendments:

"These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert."

The amendment "protects the individual rights of those persons." Stevens also in the past protected the individual liberties of assembly as such.

His dissent views the 2A having a certain meaning, but within that meaning, it is not merely a matter of "subjecting it to majoritarian predilections." Thus, e.g., if the federal government interfered with the power of the states over militia, even by a majoritarian vote in Congress, it might be unconstitutional.

Michael Barnes said...

Do Cornell law professors no longer research the facts before they opine? If Dorf did his homework, would have realized his opening sentence made a critical omission. Dorf wrote:

"A student group at UC Berkeley invited Ann Coulter to speak." Dorf leaves out that the students failed to notify the campus authorities. According to the campus attorney, Chris Patti:

"BCR and BridgeCal apparently signed a contract committing themselves to an April 27 date without first consulting the University or obtaining security review by
UCPD. This failure was particularly unfortunate in light of the fact that BCR had worked closely with UCPD on other events. Campus administration first learned of BCR’s requested date through newspaper reports."

link here:

The campus couldn't cancel the event because it was never scheduled with the University in the first place. However, the university was able to find a secure venue, but not on the original date. Coulter declined:

The notion that a student group can have access to venue on campus at a particular date and time, at the end of the semester, at a large public university, all without giving reasonable notice, is just plain silly.

There are very real security issues. Let me pose a hypothetical. Let's suppose the UCPD had credible intelligence that if the Coulter visit took place an extremist group would explode a truck bomb on or nearby the campus, which would be of a similar magnitude to the Oklahoma City blast--168 killed, 680 wounded, 324 buildings damaged, $652 million in damage. To what degree are free speech rights counterbalanced by the responsibility of the university to protect human life?

Those are the more pressing questions.

Keith Kaplan said...

Joe, I believe footnote 5 adequately affirms how I described Justice Stevens' opinion, especially as it refers to the right to petition:

"JUSTICE STEVENS is of course correct, post, at 10, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined "assembly," as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is "primarily collective in nature." Ibid. See McDonald v. Smith, 472 U. S. 479, 482-484 (1985) (describing historical origins of right to petition)."

Of course, individuals can get together and act within their rights in concert, but the rights, of "we the people" refer to individuals.

Using group conceptions can turn rights on their head.

Joe said...

Keith, there are various types of rights, including "group conceptions."

A basic one is the right to vote, a basic right of "we the people" in a republican government. Individuals, just like Stevens said, have rights there, but as part of a collective group. Likewise, juries were seen as basic to the Founders. People have a right to be members of juries, but it involves being part of a group. And, the same applies to the militia. People do not atomically have a right to own a firearm. They have one as part of the militia. Again, yes, an individual right as well.

The concept of people having rights as part of a group was a long held concept, one that went back to the Magna Charta. Finally, you flagged "majoritarian predilections." But, neither the majority or the dissent held in Heller that. Each argued the 2A put forth a constitutional requirement for which judicial review was appropriate. And, both did allow for various limitations by the majority.

Shag from Brookline said...

It seems clear to me that Mike's reference to Heller in his penultimate (still my favorite word) paragraph:

" We have seen before how a fringe idea about the Bill of Rights can become mainstream. Fifty years ago, if a politician or other prominent figure pronounced that "private handgun possession is protected by the second amendment," constitutional scholars would have written op-eds patronizingly explaining that the case law rejects this view. Then a coordinated political, social, and scholarly movement sought to change that reality, eventually succeeding when the Supreme Court endorsed the formerly dissident view of the Second Amendment in 2008 in District of Columbia v. Heller."

was to point to how changes in interpretation/construction come about, noting this opening to his closing paragraph:

"Something similar could happen with respect to hate speech."

Neither Keith nor Joe have in their exchanges of comments mentioned originalism. If it is before moderation clicks in, I'd be glad to join in.