February 1, 2021
As current levels of social and political polarization reach new heights, so do discussions about extremism, disinformation, and hate speech. But what do these terms mean for institutions such as philanthropy, technology, and media which straddle and blur the boundaries between public and private life? In many ways, current debates follow old patterns and paradigms surrounding the limits of free speech. As a constitutionally protected right, free speech protections spur discussion across the spectrum of constitutional rights, public safety, and political activity. As a result, conversations around hate speech are often fraught and highly contested, leaving the United States as one of the few democracies in the world to not have some form of legislation prohibiting its amplification and proliferation.
Although broad consensus on what constitutes hate speech is unlikely to be reached in the near future, leading voices from the law, nonprofit, and academic sectors are actively shaping the current state of the conversation.
The legal field has contributed to shaping the public understanding of free speech and hate speech in theoretical and practical ways. Legal scholars, political philosophers, and ethicists explore the definition through in-depth analyses of hate speech sub-categories ranging from racist speech, to incitement, to violence. While disagreements continue to fuel debates for clearer categories and appropriate legal repercussions, theoretical legal inquiries focus on drawing a link between the nature of the speech and ways in which it can directly lead to violence. Politically speaking, this debate often falls along predictable partisan and ideological lines.
More recently, the tech industry has played an increasingly active role in shaping the practical definition of hate speech. Operating with very little government regulation, social media platforms have unprecedented control over content that is capable of reaching broad swaths of the public. Tech companies such as Google, Apple, and Facebook, have taken aggressive action to moderate hateful content on their platforms through their terms of service policies. They also utilize content moderation tools such as profile removals, app de-platforming, and stricter user control. The use of such tools can often lead to claims of censorship or bias.
Additionally, academic voices have weighed in on the issue through philosophical interrogations and sociological studies. On the one hand, ethical questions are posed around the moral right to freedom of expression and the direct causation between speech and violence. On the other hand, sociological approaches center the experiences of victims of hate speech. By prioritizing the human and social impact, this inter-disciplinary approach presents a more granular and practical understanding of hate speech, along with providing opportunities available to manage the problem in the medium and long terms.
Below is a review of recent discussions by thought leaders and experts from a variety of sources that capture the state of the debate today, helping readers navigate an otherwise complex multidimensional field.
In the News:
Edsall, Thomas. “Have Trump’s Lies Wrecked Free Speech?” The New York Times. January 6, 2021.
In light of the Trump presidency, public debates have arisen around the limits of the constitutional protection of the First Amendment. Thomas Edsall, a political journalism professor at Columbia University, reviews the arguments of key thoughts leaders in the national debate exploring the challenge that unbridled free speech poses for American democracy. The article highlights the lack of consensus amongst scholars and specialists, while emphasizing the centrality of this conversation in our current political moment.
Stengel, Richard. “Why America Needs a Hate Speech Law.” The Washington Post. November 7, 2019.
Richard Stengel, a former public diplomacy official in the Obama administration, argues that regulations around speech need to be updated and modernized to fit new technological and political realities. The author contextualizes the U.S. standard of free speech as a global outlier with outdated laws. While noting the exceptional nature of America’s focus on free speech as an essential component of its democracy, the author also notes the challenges facing Truth in today’s marketplace of ideas.
Turley, Jonathan. “No, the U.S. Does Not Need European-Style Hate Speech Laws.” USA Today. November 8, 2019.
Responding to, and rejecting, calls for hate speech legislation, Jonathan Turley points to democratic thinkers, and policy makers as the main culprits in the war against free speech. By centralizing free speech as one of the most foundational freedoms in American democracy, the author presents any revisions or restrictions as a political assault led by left-wing politicians. To support his argument, Turley points to various European statistics of free speech criminalization. In the American context, the article highlights democrats’ use of corporations as a tool to limit free speech.
Maccandless Farmer, Britt, “Why the ACLU Defends White Nationalists’ Free Speech.” CBS News. March 10, 2019.
In her article, investigative journalist Britt Maccandless Farmer comments on the American Civil Liberties Union’s complex commitment to free speech. Overall, the article recounts the ACLU’s history of defending various groups’ right to free speech, including white nationalist groups. Specifically, Mccandless Farmer highlights the ACLU’s controversial decision to defend Neo Nazi groups’ right to march in Charlottesville in 2018. Written a year after the violent march, the article notes that the civil rights advocacy group recently added new criteria allowing the group to vet the potential for violence before accepting free speech cases.
Nonprofit and NGO Reports:
Guterres, A. “United Nations Strategy and Plan of Action on Hate Speech.” United Nations. 2019.
Recognizing the rise in speech and acts of intolerance across the globe, the United Nations outlines their plan forward through this Strategy and Plan of Action on Hate Speech. Led by the United Nations Secretary-General António Guterres, the document elaborates on the definition of hate speech, the UN’s main objectives in addressing it, along with ways to respond to its impact on most vulnerable societies.
DiPietro, Becca. “There’s a World of Difference Between Free Speech and Hate Speech.” Center for American Progress. April 21, 2017.
This piece from the Center for American Progress highlights the complex dynamics of free speech on university campuses in the context of a 2017 event at Georgetown University. The Georgetown University College Republicans invited Nonie Darwish, a prominent anti-Islam writer, to promote her recent book. Protestors demanded that Darwish not be given a platform due to her calls for the annihilation of Islam. DiPietro’s article affirms the importance of universities protecting access to free speech regardless of politics, but draws distinctions between university sponsored events and an individual’s right to free expression. She urges that the roots of bias must be acknowledged. Most importantly, she calls for critics of the protestors to recognize the students position and desire for safe and welcoming environments.
American Civil Liberties Center. “Freedom of Expression.” 2020.
This is the official ACLU position on the free speech debate. This position paper establishes the ACLU as a core organization in fighting to protect free speech, even in the case of white supremacists. The ACLU maps the legal history of freedom of speech in court cases such as Abrahms v U.S. (two dissenting opinions establish the “clear and present danger” test), Brandenberg v. Ohio (speech is protected unless it means to produce “imminent lawless action”), or Texas v. Johnson and U.S. v. Eichman (the protection of symbolic speech). Free speech does not extend to the legally obscene (Miller v. California), defamation (New York Times Co. v. Sullivan), or “fighting words” (Chaplinsky v. New Hampshire). In their defense of the rights of white supremacist and other hate groups speech, the ACLU maintains that the First Amendment cannot only protect popular speech, but must be extended to distasteful speech as well.
Fino, Audrey. “Defining Hate Speech: A Seemingly Elusive Task.” Journal of International Criminal Justice. 2020. 18-1.
This article reviews the status of international criminal law on hate speech. As a baseline, Audrey Fino uses the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide. Specifically, the author analyzes the legal parameters of hate speech as persecution (a crime against humanity) and hate speech as instigation (a mode of liability). In both instances, the human rights law specialist finds that interpretations of hate speech are consistent with the earlier ad hoc tribunals’ jurisprudence and, more generally, with international human rights law. The author concludes that current laws allow criminalization only of the most extreme forms of incitement to violence.
Gelber, Katharine. “Differentiating Hate Speech: A Systemic Discrimination Approach.” Critical Review of International Social and Political Philosophy. 2019. 1-22.
Katharine Gelber, a professor of Politics and Public Policy at the University of Queensland develops a systemic discrimination approach to defining a narrowly construed category of ‘hate speech’, as speech that harms to a sufficient degree to warrant government regulation. In this article, she extends current literature on how hate speech can harm by identifying speakers’ circumstantial capacity to harm, along with targets’ harm vulnerability. Finally, she bridges the gap between conceptual understandings of hate speech and policy designed to regulate it.
Prepared by Nagham El Karhili, Research and Program Manager at Horizon Forum