Free Speech vs. Hate Speech: Finding the Right Test Case

The question of whether hate speech can or ought to be restricted is hotly debated in both academic and non-academic circles. I believe and will explain that while protected, the protection afforded is and ought to be limited in a manner similar to the way that commercial speech is less protected than non-commercial speech, and using similar standards. But what is perhaps among the most remarkable things about the debate is that few if any of the debaters seem to notice that the particular facts in the decided cases about which they argue are not especially on-point to the debate itself.

One of the first lessons of law school is this old maxim: bad facts make bad law. What is needed is to find the right case to test the issue.

One thing that is not subject to serious dispute is that hate speech is a problem – and a growing one.

Another thing that is not subject to serious dispute is that free speech has never been entirely free – courts have long recognized any number of limitations on free speech rights. Thus, for example, defamatory speech has never been protected. Obscenity has long been subject to regulation. In the area of intellectual property law, my own primary practice (where I often have occasion to consider First Amendment issues), speech that infringes on another’s copyright, trademark, or right of publicity is subject to liability exposure, and such items as false advertising are undoubtedly subject to government regulation. And in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980), the U.S. Supreme Court set out an important four-part analysis governing commercial speech (that is, expression related solely to the economic interests of the speaker and its audience) that seems quite on-point in evaluating hate speech. That test:

1. 1. Is the speech about a lawful activity or is it misleading?
   2. Does the regulation relate to a substantial governmental interest?
   3. Does the regulation directly advance the asserted governmental interest?
   4. Is the regulation more extensive than necessary to serve that interest?

Despite reading numerous articles on both sides of the question of the legality and advisability of regulating hate speech, I’ve found none that have provided a proper justification why a test like this one should not be used.

I write this as something of a hawk in favor of robust free speech. Contrary to most in my peer group, I agree the Supreme Court’s Citizens United decision (overturning federal regulations on corporate political speech) – and continue to note the inconsistency of those on the political left who revile the decision yet have no problem with hundreds of millions of dollars spent by labor unions on politics nor with the inherent conflict of interest of public employee unions negotiating labor contracts with the very politicians to whose campaigns they contributed financially and otherwise supported so vigorously.

But Citizens United was about who has free speech rights, not about the content of the speech. When the question is about what may be restricted, especially in the arena of hate speech, the debate is quite different and considerably more nuanced, and further impacted by whether the setting is a criminal or civil matter.

Some of the leading cases are criminal matters. In Brandenburg v. Ohio (1969), the Court overturned a criminal conviction of the leader of the Klu Klux Klan who made a speech including many derogatory statements about “Negroes” (that word appears in the opinion) and Jews, specifically noting that “there might have to be some revengeance [sic] taken.” In this context, the Court’s relatively short per curiam opinion said: “[The mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action . . .” This quote appears in most of the subsequent jurisprudence for the proposition that even urging the use of violence is allowed unless the violence is “imminent.”

In Virginia v. Black (2003), the court considered another criminal case against Klu Klux Klan members – this time involving a Virginia statute that criminalized cross burning. After quoting from Brandenburg, the Court went on to establish the “true threats” doctrine, noting that the threat need not be “imminent,” but only intimidating to the intended targets of the threat, quoting in part from R.A.V. v. City of St. Paul (1992):

The speaker need not intend to carry out the threat. Rather, a prohibition on true threats “protects individuals from the fear of violence” and “from the disruption that fear engenders,” . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

Note, however, that even under the true threats doctrine, the threat at issue is “fear of violence” -also referred to as “fear of bodily harm or death.” Threats to other types of well-being are not considered by the Court, one way or the other. But what if the case had been a civil action brought by persons intimidated by the cross burning?

Elonis v. United States (2015), another criminal case, represents another point in Supreme Court jurisprudence. The Court overturned a conviction based on rap lyrics threating violence against the rapper’s ex-wife and an FBI agent, finding that a jury instruction applying the “reasonable person standard” rather than the criminal specific intent requirement was erroneous; the Court noted that the reasonable person standard is applicable to civil litigation and tort law, not criminal law. Interestingly, on remand the Third Circuit upheld the conviction, finding that the reasonable person standard instruction was harmless error because the evidence was so overwhelming that Mr. Elonis would have been convicted under proper jury instructions. But what would the Court have ruled had the case, instead of being a criminal matter, been a civil lawsuit filed by the ex-wife and the FBI agent alleging the exact same conduct and speech? Once again, the context of the actual case presents the wrong occasion to consider the scope of protection for hate speech.

Even in the civil litigation context, free speech cases seem to involve the wrong plaintiffs. In NAACP v. Claiborne Hardware Co.(1982), a case oft-cited in the context of antisemitic and anti-Israel boycotts, arising out of a NAACP-led boycott of white-owned businesses, the Court again repeated the Brandenburg principle that mere advocacy of the use of violence is protected speech. But the plaintiffs in Claiborne Hardware were the white merchants whose businesses were boycotted. The threats, however, were not directed to those white merchants but rather to Black persons: for example, the field secretary of the NAACP made a speech in which he said that any “uncle toms” who broke the boycott would have their necks broken by their own people. There were documented incidents of violence against alleged boycott breakers: shots fired into a home, a brick through a windshield, assaults and batteries on individuals, tires slashed, and threatening phone calls. Plus, watchers stationed outside of white-owned businesses, wearing recognizable black hats, taking down names of Blacks who entered those stores and undertook boycott enforcement actions including some acts of violence.

The Claiborne Hardware Court held that the statements were protected under the First Amendment in the claims brought by the white merchants; The decision was twenty years before Virginia v. Black recognized the “true threats” doctrine. But consider whether the result would have been different in the plaintiffs had been the Black residents who were intimidated by the threats of violence against them and their families. The same exact speech with the same exact words would very likely have resulted in a different finding about First Amendment protectability.

The most recent hate speech-related case to reach the Court, Matal v. Tam (2017), also involved an unusual set of facts; the plaintiff was an Asian-American lead singer who had chosen the name “The Slants” for the name of his band – in order to drain its denigrating force as a derogatory term for Asian persons – and was denied trademark registration of the name by the USPTO under a regulation that barred trademarks that “disparage . . . or bring . . . into contempt or disrepute” any persons, living or dead. The Supreme Court held that the USPTO regulation was unconstitutional, but again, the plaintiff was not asserting that the proposed band name constituted hate speech. Would the Court have reached a different result if a non-Asian group had attempted the same registration, and the plaintiff in the case was an offended Asian-American?

The most oft-referenced Supreme Court opinion specifically involving hate speech is Snyder v. Phelps (2011), the decision that reversed a civil judgment for intentional infliction of emotional distress in favor of the family of a deceased soldier against the Westboro Baptist Church that had picketed outside of the soldier’s funeral. Of utmost importance is that the funeral itself was not disrupted in any way. Mr. Snyder testified that he could see the tops of the picket signs as he drove to the funeral but did not and could not see what was written on the signs until later that night, while watching a news broadcast covering the event; the Court further noted that none of the picketers entered the church property or the cemetery, nor did they yell or use profanity or threaten violence.

It was in this context that the Court considered the First Amendment issues – a crucial point. Deeming the issues raised by the picketers – without regard to the hateful and vile manner of expressing those issues – as matters of public concern rather than of purely private significance (“[T]here can be no serious claim that Westboro’s picketing did not represent its ‘honestly believed’ views on public issues”), the Court held that the picketers message, which did not mention the Snyder family in particular, was protected speech.

There are a few points, though, to be made about Snyder. First, the Court itself noted that its “holding today is narrow” and “limited to the particular facts before us.” This is important because it appears that the Court expressly ducked a larger question presented by the facts, as noted in its footnote 1 and as highlighted by Justice Alito’s dissent: in addition to picketing, the Westboro Baptist Church also posted a message on its website (referred to as the “epic”) that expressly made reference to the Snyder family, attacking them personally. The majority’s footnote asserted that Snyder’s Petition for Certiorari and briefing had not sufficiently raised the posting and stated: “Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case.” Thus, the only “speech” at issue for the majority was the picketing signs that the family could not and did not see until much later that day.

Consider: what if the Snyders had brought a case based on the “epic”? Wouldn’t the specific attacks on the Snyder family transform the issue into a “private” concern to support a state-law tort for intentional infliction of emotional distress?

The recent Sixth Circuit opinion in Gerber v. Herskovitz (2021) presents a similar problem as that in Snyder – picketers holding antisemitic signs outside of a synagogue. Unlike Snyder, congregants and their children could see the signs as they entered their worship service on Saturday mornings, but like Snyder, “the protesters have never prevented [congregants] from entering their house of worship, have never trespassed on synagogue property, and have never disrupted services.” While finding that the congregants had standing to sue by pleading a concrete injury – extreme emotional distress – the court found the speech to be on a matter of public concern: American-Israeli relations.

That is incorrect, however – even though the litigants never raised it in this way. While a sign stating “Stop Funding Israel” might so qualify, signs referenced in the opinion such as “Resist Jewish Power,” “Jewish Power Corrupts,” and “No More Holocaust Movies” have nothing whatever to do American-Israeli relations; such speech is hate speech under any definition, and certainly antisemitic under the International Holocaust Remembrance Alliance Working Definition of Antisemitism.

Thus, like all of the other courts that are oft-cited on the subject, the Gerber court did not truly confront the issue of hate speech, although in this case, it appears to have deliberately ducked the question. To date, the reported cases have, as discussed above, not truly presented the issue or have been facts sufficiently extreme as to not test the boundaries of the true threats doctrine.

As to the latter, for example, consider Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, a Ninth Circuit decision in 2002. The court upheld the application of the Freedom of Access to Clinics Entrances Act (“FACE”) provision that created a private right of action against persons who by “threat of force . . . intentionally . . . intimidates . . . any person because that person is or has been providing . . . reproductive health services,” allowing an injunction under FACE against First Amendment challenges by applying the true threats doctrine. The defendants were sued for publishing “Guilty” and “Wanted” posters identifying specific physicians who worked at health clinics that, among other things, performed abortions. The posters not only had the names of the doctors, but their addresses and photographs. The posters also identified other doctors who had performed abortions and were subsequently murdered. There was no evidence that the persons who made or published the posters had themselves committed any violent acts or that they personally intended to do so. Nonetheless, the court concluded that a true threat is “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement was communicated as a serious expression of intent to inflict bodily harm on that person.” Id., at 1077. Further, the court noted: “It is not necessary that the person intend to, or be able to carry out his threat; the only intent requirement is that the defendant intentionally or knowingly communicate the threat.” Id., at 1075.

Thus, in this civil liability context, the court adopted an objective standard. This comports with the distinction made by SCOTUS in Elonis that the objective reasonable person standard is a civil liability standard, rather than a criminal liability standard.

Further, assertions that treating hate speech, especially but not solely in a civil liability context, in the same way that courts treat other less-than-fully-protected speech will somehow chill free expression are wrong-headed. As with the false assertions that use of the IHRA definition of antisemitism somehow chills criticism of Israel’s policies or otherwise restricts free speech, as discussed in more detail in my earlier article on that subject, it is commonplace for the law to provide remedies for activities using contextual and multi-factorial evaluations, often after-the-fact – yet such standards and liability exposure are not argued to chill driving in snowy conditions, manufacturing products, or engaging in commerce. Line drawing is difficult and often done on a case-by-case basis – but that is not a legitimate argument against setting standards for public discourse and requiring accountability for speech and conduct that crosses the line.

Indeed, as with defamatory and obscene speech, chilling hate speech by setting appropriate standards and accountability should be part of the aim. No responsible person argues that hate speech provides any positive societal benefit. Further, the point here is not to limit the subjects of speech – whether to espouse positions, for example, on either side of the abortion debate, whether LGBTQ rights should or should not extend to female-identifying biological males participating in women’s sports, Critical Race Theory, and any number of other hotly debated topics. Rather, as with those other categories of restricted speech, the issue is the means of expression and whether they cross the line from vigorous (and even occasionally aggressively nasty and personally insulting) debate into hate. And, circling back to the beginning of this article, the position advocated here is to establish standards, similar to those used to regulate commercial speech, by which hate speech can be judged and regulated.  Speech that we hate would still be protected, but less protected than non-hate speech and subject to regulation and responsibility when it goes too far.

Hate speech is one of the most important banes of our time, a major contributor to the decline of society-wide civility, reasoned discussion and debate, and the extreme polarization that permeates virtually every aspect of public life. As a free speech hawk, I nonetheless ask: Ought we begin to evaluate its relative value to our robust free speech principles?

To date, no reported cases have addressed these issues head-on. It is time to find one that presents appropriate facts and bring it before the courts.