American democracy is distinct in a number of respects, but perhaps none more than the protections our constitution extends to abusive, insulting, intimidating, harassing, anti-Semitic and racist speech, collectively known as hate speech.
This fact was evident recently when a group of white supremacists gathered in Charlottesville, Virginia for a two-day event called “Unite the Right.” The event, allegedly planned to rally support for preserving a memorial to Confederate General Robert E. Lee, was in fact designed to bring ethno-nationalist forces out from the fringes of society and into the mainstream as a show of strength. Without fear of police or judicial intervention, attendees of Unite the Right legally marched around Charlottesville under the cover of the Confederate and Nazi flags chanting hateful slogans such as “Jews will not replace us” and “blood and soil.” It was not surprising, then, when these same people began to attack counter-protesters and ultimately killed one person in what Attorney General Jeff Sessions labeled “domestic terrorism.”
So why, in the face of such a clear expression of hate, do we continue to permit this type of speech? The modern test for permissible hate speech under the First Amendment is described as “clear and present danger plus imminence.” This test originates from the 1969 Supreme Court case Brandenburg v. Ohio. In its per curiam opinion, the Court upheld the right of the Ku Klux Klan to call for the violent expulsion of African-Americans and Jews from the United States after one of its members was convicted under an Ohio statute prohibiting support for violence. The Court wrote “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” It was under this same rationale that the Court later affirmed the right of Nazis to march on a public street in Skokie, Illinois, in a community populated with World War II concentration camp survivors.
Although the test of “clear and present danger plus imminence” is nearly impossible to meet, the Supreme Court has continued its use. In the 1992 case R.A.V. v. City of St. Paul, the Supreme Court invalidated a municipal bias-motivated crime ordinance after several teenagers were convicted of burning a cross on the lawn of an African-American family. In delivering the opinion of the Court, Justice Antonin Scalia wrote: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Even as recently as last fall in Matal v. Tamm, a case ostensibly about disparaging trademarks, the Supreme Court once again affirmed the use of hate speech. In a concurring opinion, Justice Anthony Kennedy wrote: “The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate.” In fact, the Court has never met with a case that it found to satisfy the “clear and present danger plus imminence” test; as a result, hate speech flows virtually unrestricted in the United States.
As Justice Kennedy warns, we must always be cautious of any restraint on our freedoms of speech, press, assembly, and religion. But the First Amendment’s protections have never been considered absolute. In contrast to its record in hate speech cases, the Supreme Court has upheld laws that regulate other forms of speech, such as obscenities, defamation, and commercial speech. In Morse v. Frederick, the Court found no First Amendment protection for a student that displayed a sign across the street from his school that read “BONG HiTS 4 JESUS,” because it promoted illegal drug use. Reasonable limitations could – and perhaps should – apply to hate speech as well.
America’s legal system would not break new ground if it began to impose common sense restrictions on hate speech. In other democracies and free societies, reasonable limitations on hate speech do not suffocate the marketplace of ideas. For example, in free, democratic countries like Germany and South Africa, which live with the legacy of the atrocities of the Holocaust and Apartheid, the governments are allowed to impose reasonable limitations on hate speech. Germany’s criminal code prohibits the public display of Nazi symbols, such as the swastika and SS logo, and Nazi phrases, such as “Heil Hitler” and “Sieg Heil.” Likewise, South Africa’s bill of rights contains protections for freedom of speech and expression, but explicitly excludes hate speech. These countries are no less free than the United States, nor do they fail to remember their histories. In Germany, for example, school children are required to learn about the Holocaust, Nazism, and visit a concentration camp in grade school.
Now, more than ever, is the right time in America’s history to engage in a debate on laws that restrict hate speech.
By all accounts, white supremacists and neo-Nazis viewed the Charlottesville event as an unprecedented success, and the country is likely to see more hate speech – and more violence – in the future. Unfortunately, the First Amendment – a bedrock of our democracy – has become a shield for domestic terrorists.
After the attack in Charlottesville, the organizer of “Unite the Right” said: “It really is a sad day in our constitutional democracy when we are not able to have civil liberties like the First Amendment.”
No doubt, even white supremacists should enjoy freedom of speech in America, but we cannot allow that freedom to eclipse the right of other Americans to be safe from the violence hate speech produces.