Protecting the First Amendment while resisting hate speech

By Emma Austin, F/G Scholar

Under U.S. law there has never been a legal definition of “hate speech,” whether protected by the First Amendment or not. The American Library Association defines hate speech generally as “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or class of persons.”

The First Amendment allows freedom of speech no matter how offensive or bigoted its content. There are limits, however, to freedom of speech in the United States. Whether hate speech crosses the line into harassment, threats or other harmful behavior is determined on a case-by-case basis.

The government can restrict hate speech if it falls under any of the exceptions to free speech, including false statements of fact, obscenity, plagiarism, child pornography and incitement.

Inciting or producing lawless action is not legal—that is, if the lawless action is imminent. In 1969, Ku Klux Klan leader Clarence Brandenburg was charged with advocating violence after speaking at a rally. The Supreme Court unanimously reversed Brandenburg’s conviction, modifying the “clear and present danger” test with the “imminent lawless action” test, which considers intent, imminence and likelihood in a case against free speech. In Bradenburg’s case, it was the Supreme Court’s opinion that the statements at the rally did not express an immediate intent to do violence.

The government cannot regulate “hate speech” solely because its message is unpopular, or even disturbing or feared, only when it directly and imminently causes certain specific, objectively serious harms. In that way, the domain of constitutionally protected “hate speech” is virtually infinite, as there is no legal definition of the term.

Other landmark Supreme Court cases that resulted in rulings protecting a hate group’s right to freedom of speech have occurred since the KKK’s victory in 1969. One of the most well-known of those is the National Socialist Party versus the Village of Skokie.

In 1978, the National Socialist Party, or Nazi Party, wanted to rally in the village of Skokie, Illinois, which had a predominantly Jewish community where about one in six residents was a Holocaust survivor. When news about the planned march spread, the circuit court prohibited marching, walking, or parading in the Nazi uniform, displaying pamphlets or displaying any materials which incite or promote hatred against people of any faith or ancestry, race or religion.

The case made its way to the Supreme Court, and Illinois’ injunction was ruled unconstitutional.

Snyder versus Phelps is another major case involving a clear issue of hate speech. In 2006, Westboro Baptist, a church known for its inflammatory hate speech, picketed the funeral of a U.S. marine in protest of what the members considered an increasing tolerance of homosexuality in the United States. Protesters’ signs had phrases like “God hates you,” “You’re going to hell” and “Thank God for dead soldiers.” The marine’s father, Albert Snyder, sued Fred Phelps of Westboro Baptist on multiple counts including intentional infliction of emotional distress.

An 8-1 decision ruled that Fred Phelps and Westboro Baptist was entitled to protection under the First Amendment.

The ACLU defended the hate groups in each of these two cases in recognition of the importance protecting their rights to freedom of speech for protecting everyone’s right to freedom of speech. The ACLU has defended its controversial support of these unpopular entities by clarifying it’s not because they agree with them, but because once the government has the power to violate one person’s rights, it can use that power against everyone. They “work to stop the erosion of civil liberties before it’s too late.”

Adam Falluji, 23, of Lexington describes this reasoning as fundamentalist thinking.

“Say I tell you Tylenol will make your headache go away, but then if you take 80 Tylenol, you’ll die, so don’t take any Tylenol,” Falluji said. “There’s a point where you have to use common sense.”

In her book “HATE, Why We Should Resist It with Free Speech, Not Censorship,” former ACLU president Nadine Strossen argues that “more speech, not less” is the answer.

“The reason why I still believe that we should continue to protect ‘hate speech’ is well summarized by another old saying: ‘The cure is worse than the disease,’” Strossen wrote. “Even worse than speech’s potential power to harm individuals and society is government’s potential power to do likewise, by enforcing ‘hate speech’ laws.”

Falluji said the fallacy in punishing hate speech only when it incites violence is that “every time hate speech is used, it’s going to incite violence.” He said the Holocaust is an example—Hitler and his regime targeted a number of groups as enemies and used propaganda and laws that created an atmosphere of hatred and violence against Jews, Gypsies and homosexuals.

Those campaigns of hatred resulted in millions dead.

“To me, there is never a case where hate speech is not a threat,” Falluji said.

Falluji was born in Baghdad, Iraq, during the regime of Saddam Hussein, when many people were trying to escape to other countries. Falluji said it was especially difficult for his parents to do so because they were both doctors, and such professionals weren’t allowed to to leave the country at all.

Falluji’s parents smuggled themselves and their son out to Jordan but had trouble at the American embassy and were rejected at first. Eventually, they did make it to the United States, when Falluji was about 1.5 years old. They first lived in Pennsylvania, then relocated to New Jersey, then West Virginia, and now Kentucky.

As a Muslim, Iraqi-American living in the United States during and after the 9/11 attacks, Falluji said he was often called a “terrorist” by classmates because of his race and religion. It was usually friends joking around, but Falluji said he never really knew how to take it. He said there have been a few instances he’s been called a terrorist and knew the speaker meant it.

Falluji said in high school, a girl once told him she believed all Muslims were terrorists, knowing Falluji practiced Islam.

“There are 1.8 billion Muslims in the world—if they were all terrorists, the Western world would be a black hole,” Falluji said. “That girl in high school really blew my mind. What kind of idiot goes to school thinking they’ll be sitting by a terrorist in math class?”

Falluji said he often takes a relatively blunt, direct approach to combating hate speech when he encounters it. He contrasted his approach with that of Megan Phelps-Roper’s husband, who took everything she said with a smile and patience.

Phelps-Roper is the granddaughter of Fred Phelps and was fully convinced of his extreme homophobic preaching until she started a Twitter account to spread those views. She encountered people who challenged her views, and those conversations completely changed her views, and she left the church.

“It seems like both ways work,” Falluji said. “I have to be careful not to go too far. I want to just go right out and eliminate it, stop it right there. I think the key is patience.”

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