WHEN SPEECH MEETS HATE #1

In this time of national strife and bigotry I would hope that anyone committed to the Constitution and the  1st Amendment will read this 2 part copy of an article "When Speech Meets Hate" by Frederick Schauer ,the  David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Prior to joining the Virginia faculty in 2008, he spent 19 years as Frank Stanton Professor of the First Amendment at Harvard University.It appeared in the current issue of the University of Virginia Magazine
  No other country protects controversial speakers with the zeal of American First Amendment doctrine. Whether American free speech exceptionalism is a good thing remains deeply contested, and the Charlottesville events of Aug. 11 and 12 show why.
  America’s hard-line approach to free speech takes many forms. Public officials and public figures, for example, must clear a daunting array of First Amendment hurdles before they can win a libel suit against their critics, even when what is said about them is plainly false. Other countries disagree, and believe the United States sacrifices too much of the value of reputation on the altar of free speech—just as American free speech enthusiasts believe that the approach elsewhere leaves too little breathing room for harsh criticism of those who make and influence public policy.
  Similarly, the United States protects free speech and free press against the claims of privacy more vigorously than do other countries, and it is more permissive of publishing unlawfully obtained information (as with the Pentagon Papers in 1971). More relevant to recent events, the United States, as a result of Supreme Court rulings going back to the 1960s, erects a high bar before it will punish those who advocate or incite illegal action; the advocacy must be explicit, and the incitement must produce an actual likelihood of imminent illegality. Short of explicit and immediate encouragement of an angry mob, the United States—alone among nations—tolerates almost all advocacy, even advocacy of unlawful violence.
  Where the United States departs most dramatically from the approaches elsewhere is with what is commonly called “hate speech”—speech that incites or encourages race-based violence or discrimination, or denigrates people because of their race, religion, ethnicity, sexual orientation or gender. Even though many people in Charlottesville and at the University believed, correctly, that the Klan, the neo-Nazis and other white supremacist groups engaged in hate speech, many people also believed, incorrectly, that the offenders had violated the law in doing so. That conclusion would be correct for much of the world—where authorities prohibit incitement to racial hatred, Holocaust denial and other forms of hate speech—but not in the United States. Supreme Court decisions dating, again, to the 1960s have made clear that not only does the Constitution not recognize the category of hate speech, but it also plainly prohibits targeting speakers because their message is racially hateful, hurtful or outrageous.
  Indeed, when in 1977 the National Socialist Party of America, self-described as Nazis, proposed to march in Skokie, Illinois, a community with a majority Jewish population and an especially large number of Holocaust survivors, federal and state courts rebuffed the city’s efforts to prohibit the march, and the Supreme Court refused to hear any of the Skokie cases. While the court’s refusal to hear a case is not a decision on the merits, many understood the denial of review, in the context of the dispute’s national prominence, as tantamount to a ruling that the law protected the marchers.

  No other country protects controversial speakers with the zeal of American First Amendment doctrine. Whether American free speech exceptionalism is a good thing remains deeply contested, and the Charlottesville events of Aug. 11 and 12 show why.

  America’s hard-line approach to free speech takes many forms. Public officials and public figures, for example, must clear a daunting array of First Amendment hurdles before they can win a libel suit against their critics, even when what is said about them is plainly false. Other countries disagree, and believe the United States sacrifices too much of the value of reputation on the altar of free speech—just as American free speech enthusiasts believe that the approach elsewhere leaves too little breathing room for harsh criticism of those who make and influence public policy.

  Similarly, the United States protects free speech and free press against the claims of privacy more vigorously than do other countries, and it is more permissive of publishing unlawfully obtained information (as with the Pentagon Papers in 1971). More relevant to recent events, the United States, as a result of Supreme Court rulings going back to the 1960s, erects a high bar before it will punish those who advocate or incite illegal action; the advocacy must be explicit, and the incitement must produce an actual likelihood of imminent illegality. Short of explicit and immediate encouragement of an angry mob, the United States—alone among nations—tolerates almost all advocacy, even advocacy of unlawful violence.

  Where the United States departs most dramatically from the approaches elsewhere is with what is commonly called “hate speech”—speech that incites or encourages race-based violence or discrimination, or denigrates people because of their race, religion, ethnicity, sexual orientation or gender. Even though many people in Charlottesville and at the University believed, correctly, that the Klan, the neo-Nazis and other white supremacist groups engaged in hate speech, many people also believed, incorrectly, that the offenders had violated the law in doing so. That conclusion would be correct for much of the world—where authorities prohibit incitement to racial hatred, Holocaust denial and other forms of hate speech—but not in the United States. Supreme Court decisions dating, again, to the 1960s have made clear that not only does the Constitution not recognize the category of hate speech, but it also plainly prohibits targeting speakers because their message is racially hateful, hurtful or outrageous.

  Indeed, when in 1977 the National Socialist Party of America, self-described as Nazis, proposed to march in Skokie, Illinois, a community with a majority Jewish population and an especially large number of Holocaust survivors, federal and state courts rebuffed the city’s efforts to prohibit the march, and the Supreme Court refused to hear any of the Skokie cases. While the court’s refusal to hear a case is not a decision on the merits, many understood the denial of review, in the context of the dispute’s national prominence, as tantamount to a ruling that the law protected the marchers.

  America’s unique approach to hate speech remains highly controversial, even here in the United States. Our parents admonished us that “Sticks and stones may break your bones, but names will never hurt you,” but they were wrong. Insults, epithets and racially abusive language can produce mental anguish, contribute to the marginalization of targeted groups, encourage illegal discrimination and help create an atmosphere in which racial violence increases. No matter how racist, homophobic, sexist or otherwise dangerously offensive the speech at issue happens to be, however, American courts have consistently refused to let government restrict speech, parades, marches, demonstrations or rallies based solely on their content.

  Perhaps that reflects a long-standing American distrust of government. Perhaps it embodies a characteristically American libertarianism about regulation of anything. Perhaps it is a reaction to the excess suppression of speech during the Red Scare of 1919 and the McCarthy era in the late 1940s and early 1950s. Regardless, regulation of content crosses an inviolable line in American First Amendment doctrine. But whatever the cause, the effect—refusal to allow regulation of hate speech because of its hatefulness—is by now well entrenched in legal doctrine.

To be continued