HomeOpinionIs Hate Speech the Same as Free Speech?

Is Hate Speech the Same as Free Speech?

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Discussing the lines drawn between hate-fueled crimes and offensive language.

Back in January, Robert Bowers, the person behind the horrific 2018 shooting at the Tree of Life synagogue in Pittsburgh, had 13 additional federal hate crimes and six firearms violations added to his existing 44 federal charges by a grand jury.

This move signifies the U.S. government’s viewpoint – if a crime is driven by hatred for a certain group, it’s notably vile, and the person responsible should face a harsher punishment than if no such motive were involved. Legal eagles, such as judges and prosecutors, gauge elements like the culprit’s choice of words and the nature of the assault to decide if a hate motive was in play.

Although bumping up penalties via hate crime laws are mostly about settling the score, shielding vulnerable groups can also act as a warning and make a symbolic statement.

In the Land of the Free, safeguarding marginalized groups from hate crimes is generally seen as more important than any potential drawbacks, but that’s not the case when it comes to hate speech.

Past efforts to rein in hate speech have been shot down by U.S. justices as a breach of constitutional rights. They argue that these laws impede on the First and Fourteenth Amendments, which direct both state and federal government to safeguard free speech rights. In more recent trials, like Matal v. Tam, 582 U.S. ___ (2017), the Supreme Court admitted hate speech can be nasty, but stuck to their guns that curbing any offensive speech is unconstitutional.

Matal v. Tam (2017) revolved around a clause against discrimination that forbade registering trademarks that might “disparage” any “persons, living or dead, institutions, beliefs, or national symbols.” The Justices, referencing the purpose of trademarks to communicate, tossed out the clause, dubbing it an unconstitutional limit on viewpoints.

Despite the lack of rules around hate speech in the U.S., not everything that comes out of someone’s mouth is protected by the Constitution. Examples of unprotected speech include fraudulent statements, perjury, blackmail, bribery, genuine threats, fight-provoking words, child porn and other obscenities, biased government-influenced speech, such as political commentary and dishonest trade practices, as well as private interest speech, like defamation and intimidation that happen privately. However, these restrictions aren’t the same as hate speech laws as they don’t extend special protection to marginalized groups.

Two recent legal battles shed some light on the difference between hate crimes and hate speech. In January 2019, a group of teens known as “Bikes Up Guns Down” blocked traffic in Miami to protest the lack of affordable housing. A woman named Dana Scalione began yelling at a teen and pushing his bike, claiming he had run over her foot. Her boyfriend, Mark Allen Bartlett, got involved, brandishing a gun and shouting racial slurs.

A passerby called the cops, and Bartlett was arrested for illegally carrying a hidden firearm. The teens later sued, saying Bartlett and Scalione broke Florida’s hate crime law and demanded a jury trial. If they win, the court could triple the damages.

In February 2019, State Attorney Katherine Fernandez Rundle filed enhanced criminal charges against Bartlett, including brandishing a firearm and aggravated assault with prejudice.

Florida’s hate crime law increases penalties for crimes driven by race, color, religion, sexual orientation, and other factors. Although the law doesn’t specifically address hate speech, Bartlett’s racial slurs could be key in deciding if his actions were a hate crime.

A second case that helps us understand the difference between hate crimes and hate speech involves Andrew Anglin, who runs a neo-Nazi website. In 2016, Anglin told his readers to harass Tanya Gersh, a Jewish realtor in Montana, over a real estate dispute.

Gersh sued in 2017, after receiving over 700 threatening or nasty messages through calls, texts, emails, and social media. The lawsuit cited invasion of privacy, intentional emotional distress, and violations of the Anti-Intimidation Act.

Anglin tried to get the case thrown out, saying his words were protected by free speech. But in November 2018, a judge ruled that the case could go forward, saying Anglin’s call for harassment wasn’t about informing the public, but was based on his personal hostilities. The court noted that “not all speech is of equal First Amendment importance,” especially on private matters.

The court further noted, “The ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Despite Anglin’s attempt to rally his readers’ dislike of Jews, there’s a strong claim that he did so simply to harass Gersh.”

Marc Randazza, who is defending Anglin, told the press that the judge’s decision could be “bad news for free speech.” He suggested it might limit free speech in other areas.

However, the judge didn’t really say anything like that. In fact, the judge pointed out, “We can’t say Anglin’s speech isn’t protected just because it shows a worldview that most people disagree with.” But the judge also said Anglin’s attacks on Gersh were personal, not about a public issue. So, they don’t get special protection.

What does all this mean? While some speech isn’t protected by the U.S. Constitution, hate speech isn’t specifically regulated. But that begs the question: Is speech really that different from physical violence, even threats of violence?

We know that words can hurt. If someone verbally abuses you, they’re trying to harm you emotionally. You could say that verbal abuse is a form of emotional violence.

Words can hurt because they do more than just describe things. They also perform actions. We do things with words. We can warn people. We can also hurt people.

The actions we perform with words are called “speech acts.” When you promise, threaten, apologize, demand, tease, insult, or criticize, you’re doing something with your words.

Whenever you say something, you’re performing a speech act. If you say, “There’s a bull behind that fence,” you could be warning someone not to go in there, or you could be making a promise.

When you directly state your intent, like “I promise there’s a bull behind the fence!” or “I’m warning you not to go in there!” those are direct speech acts. If you just say, “There’s a bull behind the fence,” that’s an indirect speech act, because you’re not explicitly saying what you’re doing with your words.

Verbal assault is a type of speech act that can be direct or indirect. If your partner says, “Quit your job now that we’re married,” she’s making a disrespectful demand directly. If she says, “Call your boss right now!” she might be making an indirect threat.

Hate speech is a form of verbal abuse that targets people because of who they are. The point of verbal abuse, no matter what kind, is to fight back against someone, or to control them, or to keep them from getting what they should have.

Hate speech is the same. People who use hate speech are trying to get back at a group, control them, or keep them from getting what they should have. But that’s not right, so hate speech seems wrong.

The law doesn’t ban everything that’s wrong, though. It only bans things that threaten, hurt, or endanger people or property. So, cheating on your partner might be wrong, but it’s not illegal.

If the law bans things that threaten, hurt, or endanger people, why doesn’t it ban hate speech? Didn’t we just say that hate speech hurts people?

Well, not exactly. Someone who’s verbally assaulted might suffer emotional harm, but the law usually doesn’t regulate things that cause emotional harm. That’s because it’s hard to tell if emotional harm is directly caused by an act or just a side effect.

Even if hate speech doesn’t cause long-lasting emotional damage, it can still hurt. So, why don’t we just say hate speech is harmful because it hurts people’s feelings? One problem is that hate speech doesn’t always hurt. If the target is tough, didn’t hear what was said, or didn’t understand, they might not get hurt.

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