Hate Speech May Be Protected, but It Shouldn’t Be “Free”

By Dan Meisel   |   March 15, 2022

In my role at the Anti-Defamation League (ADL), I passionately defend free speech. ADL recognizes that the First Amendment protects even hateful or offensive speech, and we believe the best response to hate speech is not censorship, but more speech. Not all hate speech is protected, however, and even hate speech that is protected “free speech” should not be free from meaningful response. Appropriate responses can range from counter speech to civil or criminal liability depending on the circumstances. 

Let’s be clear first about what “hate speech” is and isn’t. Hate speech is an expression of antipathy towards others based on core characteristics that someone cannot and should not have to change, such as their race, ethnicity, religion, nationality, national origin, gender, or sexual identity. It does not include others’ opinions merely because they might offend us, nor does it include offensive statements from ignorance alone. Hate speech stems from hostility to others. 

The Supreme Court has been clear that even speech inflicting great pain is worth tolerating to preserve the public debate upon which democracies depend for legitimacy. The Court’s protection of hate speech extends only, however, to speech relating to “matters of public concern,” which is determined not just by its content of the speech, but by its form and context as well. That standard leaves some hate speech open to criminal, civil, and other public and private consequences, as we can see from some recent local incidents.

In February, a small group of skeleton-masked individuals hung signs with white supremacist slogans from a bridge above the 101 Freeway in Newbury Park – and it was not an isolated incident. ADL counted 128 similarly offensive banner hangs last year around the country. While the Newbury Park banners themselves may have constituted protected speech, the “form and context” of attaching them to an overpass above a busy freeway may remove First Amendment protection, and there are state statutes that could arguably penalize such conduct. Some municipalities may impose fines as well. At a minimum, communal statements countering the message without giving further publication to the hate speech and its perpetrators is important. 

Identifying the perpetrators could also lead to more severe consequences. These haters tend to hide their identities not only to avoid prosecution, but to avoid repercussions of being publicly exposed for expressing such negativity. Many participants in the 2017 Unite the Right rally in Charlottesville lost jobs and were rejected by friends and family as a result of their protected hate speech that day. While the echo chambers of their online “metaverse” only emboldened their hateful beliefs, they experienced in the “realverse” the corrective behavior that usually checks biased attitudes before they escalate to action. 

A few months ago, a longtime local resident visiting a Santa Barbara County facility staffed by UCSB employees engaged in a mild political conversation with the facility’s manager. To the resident’s surprise, the manager reportedly erupted, calling him a “F[expletive] Jew,” a “F[expletive] immigrant,” and yelling at him to “go back to his country.” Understandably shocked, shaken, and furious, the resident reported the incident to police, as did a witness who came forward to express his shock at the manager’s conduct. 

The First Amendment doesn’t protect a narrow category of “fighting words.” Consequences for fighting words appear in California Penal Code section 415(3), commonly known as “Disturbing the Peace,” which applies to the “use of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.” 

We are often inclined to say “it was just words” when obvious physical harm doesn’t ensue. But at ADL, we recognize that words matter and section 415(3) of the penal code recognizes that words can create a dangerous situation and inflict lasting harm. In addition to criminal liability, fighting words may give rise to civil liability or violation of an employee code of conduct warranting discipline or termination.

It is worth emphasizing the importance of the witness who came forward to support the target’s credibility despite the risk of himself antagonizing the perpetrator. That act of allyship may be the single most important factor in whether the perpetrator incurs serious consequences for his action. We all have a role to play in standing up for targets of hate speech and loudly condemning it to deter others.

Tragically, there was another local incident that is imperative we address. Students at Santa Barbara Junior High School reportedly taunted another student with racial slurs, eventually kneeling on his neck and referencing George Floyd. This incident went well beyond hate speech and some consequences apparently ensued for students involved. It is critical that additional consequences follow in the form of education – not just for the students involved, and not just in response to this event.

When we see conduct like this on a school campus, we tend to see a substantial presence of hateful speech preceding it. That presence can be substantiated with student surveys – youth are usually honest about what they see and hear. This hate is learned, and it can be unlearned with sustained quality programming that doesn’t punish everyone for the acts of a few, but which involves the entire campus and its stakeholders in fostering and maintaining a comprehensive vision of a respectful, inclusive campus community that can recognize animus in its earliest forms and come together to check it. That is one form of “cost” that, when done well, can feel supportive, life affirming, even inspiring. 

To truly enjoy our nation’s wonderfully paramount value for free speech, we must make sure hate speech does not go unanswered, and that we invest in education to foster a community that responds effectively to it at an early age.  

Dan Meisel is the Regional Director of ADL Santa Barbara/Tri-Counties


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