Hate speech is a verbal attack targeting a certain race, ethnicity, gender, religion or sexual orientation. Hate speech can be communicated via the internet, by phone, in a well-distributed publication, on television or radio broadcasts, or in person. The issue of hate speech is very controversial in the United States, where it is protected as a form of free speech, as long as it does not directly lead to violent action. In some countries, hate speech is banned outright.
Hate speech is difficult to define. The Human Rights Watch defines hate speech as "any form of expression regarded as offensive to racial, ethnic and religious groups and other discrete minorities, and to women." Hate speech was known as "race hate" in the 1920s and 1930s. In the 1940s, it was labeled "group libel." The term "hate speech" has become the most widely used term since the 1980s.
Even when hate speech does not directly result in physical violence or criminal activity, it can lead to psychological and emotional damage, create an unhealthy work or school environment, and engender unequal opportunity. Anyone using hate speech against a specific race undermines the constitutional precept of equality. Some argue that to support the principle of equality, racial hate speech should be illegal.
One important legal ruling that dealt with the matter of hate speech was the 1992 cross-burning case. A St. Paul, Minnesota, ordinance forbade any symbol that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Supreme Court Justice Antonin Scalia deemed this ruling unconstitutional, as it directly contravened the First Amendment. Prior to the cross-burning case, speech codes were enforced on most college and university campuses, forbidding any offensive communication regarding race, gender, religion, sexual orientation, marital status or physical capacity. Federal district courts thereafter deemed the speech codes as unconstitutional.
Such is not the case in other countries. According to the United Kingdom's 1986 Public Order Act, it is a crime to use "threatening, abusive or insulting words or behavior" regarding "color, race, nationality (including citizenship) or ethnic or national origins." In the Brazilian constitution, "propaganda" relating to "religious, race, or class prejudice...shall not be tolerated." In Turkey, one can face a prison term of one to three years for publicly inciting "people to hatred and enmity ... on the basis of class, race, religion, sect or region."
In Germany, a victim of the Holocaust can bring legal action against anyone who denies that the Holocaust occurred. The Canadian Charter of Rights and Freedoms guarantee limited freedom of expression. For example, the Canadian Supreme Court upheld the criminal conviction of a teacher who made anti-Semitic remarks in the classroom. These standards are also used on an international scale.
The Universal Declaration of Human Rights states that "everyone has the right to freedom of opinion and expression," yet there are certain provisos on that statement, implemented "for the purpose of securing due recognition and respect for the rights and freedoms of others." Article 20 of the declaration states that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."
All the arguments for banning hate speech, though logically sound, have failed to cancel out Americans' First Amendment rights. The psychological harm inflicted by hate speech does not hold sway in a court of law. There must be a definite change in legal relationships, leading to subordination and ensuing from an act of hate speech in order for it to be declared illegal. Though hate speech reflects the speaker's opinion that his or her target is morally inferior, it does not lead to a definitive change in status.
Larry Alexander holds out the possibility of banning hate speech without damaging constitutional rights. Alexander writes, "one might argue that hate speech not only expresses hatred or contempt but also counts as the act of ‘treating another as hateful or contemptible'." Moreover, hate speech, because it violates social norms regarding civility and respectfulness, counts as an act of incivility and disrespect.
Therefore, the argument might continue, when we ban hate speech, we are not banning ideas but rather particular kinds of socially harmful acts. Banning hate speech would be the same as banning acts of perjury, in that hate speech has the capacity to alter situations. Yet social conventions hold no sway over public discourse, nor should they.