Hate speech should have legitimate legal consequences

Over the weekend, I had an interesting Uber ride, in which my driver and I conversed about the topics of hate speech and its consequences, both legal and interpersonal. This conversation wasn’t the most scintillating, as it was clear my driver and I were not operating with the same level of knowledge on the topic and he also was clearly uninterested in listening to anything the liberal in his back seat had to say — preferring to claim that straight white cishet men today could not simply exist or hold an opinion without being persecuted (which is laughable if we consider all that straight white men have gotten away with just in the past couple of years: killing Black people, raping women, attempting to overthrow the government — the list goes on).

First, it’s important to understand the definition of hate speech in the United States. While there is no official legal definition under U.S. law, hate speech is understood as, “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color sexual identity, gender identity, ethnicity, disability, or national origin,” according to the American Library Association. And under First Amendment jurisprudence, “hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group,” like a hate crime, which is a federal offense.

Now, the debate surrounding hate speech in the United States is one that is consumed by the question of where individual rights put the public at risk. Historically speaking, the United States is one of the more liberal societies in the world, because it protects an individual’s fundamental right to speak with the highest standards of freedom. The most important case precedent regarding hate speech is the Skokie Case of 1977 in which the Supreme Court of the United States ruled in favor of a white nationalist group because the city of Skokie made a content-based decision in banning a white nationalist group from marching down Main Street and uttering racist or harmful speech in a public setting. This goes to show just how far the court will go to protect the right to free speech. Even organizations like the American Civil Liberties Union, known to represent marginalized groups who have been targeted because of their minority status, have come to defend the speech of Nazis — because if they didn’t, speech codes would disproportionately disadvantage minorities and put them at risk by those in positions of authority and power prohibiting certain kinds of speech.

“The struggle for racial justice in our country has involved some of the most important precedents for First Amendment law and for free speech law,” says Mary Beth Tinker, American free speech activist known for the Tinker v. Des Moines SCOTUS case. “Some of the greatest leaders in the racial justice movement have been very clear in saying that the right to free speech is very important and that without that, the situation of racial injustice that we have currently in the United States would be even worse.” And by the power of the Constitution and some real hard work from trailblazers and pioneers who never gave up, change was achieved and rights were awarded.

It’s no secret that we live in a racist society. According to a 2019 report by the Pew Research Center, “Hispanics (45 percent) and Black people (38 percent) are significantly more likely than whites (30 percent) to say they feel unfairly judged by others because of the language they use to express themselves.” Now, the United States is seeing that white men are feeling “attacked,” because they feel they can’t just say whatever they want anymore without there being legitimate consequences, like the loss of their job or the deactivation of their account on social media. Which — from their perspective — I’m sure it does feel like they are being singled out and attacked, hence my Uber driver from the weekend.

Now, given the case precedents and court principles amid the current social climate of the nation, and as a woman of color who is occasionally targeted with hate speech, I have to say that I would prefer the government regulate certain kinds of hateful expression if the court can determine that the person using the hate speech intentionally targeted a minority to negatively impact their ability to go about their daily life or cause legitimate harm.

Now, I understand that the current principle and precedent for punishable hate speech comes from the Civil Rights Act, Title VI Guidelines established in 1994, which states hate speech must be severe, pervasive, or persistent and is therefore, no longer protected by the First Amendment. However, I argue that even one instance of uttered hate speech against an individual can have detrimental, long-lasting effects on a person’s stability and ability to navigate life normally.

Laura Leets studied and examined instances in which Jewish or LGBTQ+ individuals were the subjects of targeted hate speech against their personal identity. She found that the emotional consequences were the most frequently reported short-term effect, and the long-term consequences showed that attitudinal change for hate utterances was a common response. Therefore, a legitimate study brings forth evidence that suggests hate speech, even when not pervasive or persistent, still has intense short-term and long-term negative effects on individuals the speech was directed at. As such, the government should regulate hate speech more so than it does now, should the court be able to determine that the person using the hate speech intentionally targeted a minority group to negatively impact their ability to go about their daily life.

Nichole Shaw is a Gazette editorial fellow. Comments: nichole.shaw@thegazette.com

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