What can be done about hate speech?

The tragic events in Charlottesville again raise the question of why expressions of hate should be tolerated and deemed protected by the First Amendment. Most European nations do not allow hate speech, such as the vile white supremacist, racist and anti-Semitic speech that occurred last week in Virginia.

Would we be better off as a society without such speech? And if not, what can be done about it, especially on college campuses? The events at the University of Virginia, or for that matter at Berkeley earlier this year, show that campuses are going to continue to be the place where speech issues so often arise.

torch rally in charlottesville

Torch-carrying demonstrators in Charlottesville, Va., last weekend. (Image from Unicorn Riot video)

As a matter of constitutional law, it is clear the First Amendment protects a right to express hate. Every effort by governments to prohibit or punish hate speech in the United States has been declared unconstitutional.

For example, the Supreme Court unanimously declared unconstitutional a St. Paul, Minn., ordinance that prohibited burning a cross or painting a swastika in a manner likely to anger, alarm or cause resentment. Likewise, the court struck down a Virginia law banning cross burning.

Over 300 colleges and universities enacted hate speech codes and every one to be challenged in court was declared unconstitutional. Indeed, because of their commitment to academic freedom, free speech has its greatest protection in colleges and universities.

Private entities and corporations have more leeway. Since Charlottesville, a number of private companies have sought to control the ability of hate groups to use their platforms and services to promote hateful ideas.

GoDaddy and Google stopped providing hosting support to the neo-Nazi site, the Daily Stormer, saying the site had violated their terms of service. Uber Technologies Inc. banned a well-known white supremacist for allegedly harassing an African American driver. Airbnb cracked down on Charlottesville users suspected of hosting neo-Nazi gatherings, and the GoFundMe website, which prohibits hate speech, removed campaigns to crowdsource bail money for the Ohio defendant accused of driving into a crowd of counter-protesters, killing a 32-year-old woman.

Of course, the First Amendment applies only to the government, so private companies can restrict speech however they choose without running afoul of the Constitution. But when it comes to the public sector, the Supreme Court has been emphatic that the government never can stop speech on the ground that it is offensive, even very deeply offensive.

As recently as this past June, the Supreme Court unanimously declared: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ ”

Why? The core of the First Amendment’s protection of freedom of speech is that all ideas can be expressed. This is as it should be. Once the government can pick and choose among messages, there truly is no stopping point to censorship.

Hate speech expresses an idea, albeit one we wish did not exist. Moreover, experience in other countries and the United States shows that laws prohibiting hateful speech are often used against minorities, the very individuals that the laws seek to protect.

But this does not leave government or campus officials powerless. Free speech is not absolute. There is no First Amendment right to engage in speech that causes people to feel an imminent threat to their safety or that constitutes harassment.

Campus leaders, too, have freedom of speech and they must use it to denounce expressions of hate. A campus must tolerate offensive messages, but it need not and should not treat them as acceptable, and campus officials must condemn expressions of hate in the strongest terms. Campuses also must provide a forum for counterspeech, including counterprotests.

At the same time, campus officials have the duty to ensure public safety. This can take many forms.

Those participating in demonstrations can be prevented from carrying the bats and clubs that were visible in pictures in Charlottesville. There is a First Amendment right to speak, not to carry a weapon. No court ever has found a Second Amendment right to have a gun on campus.

If campus officials reasonably fear for safety, they can confine demonstrators to an area where the perimeter can be controlled. Counterprotestors can be located at a physically separate place to minimize the chances for violent confrontations. All of this is consistent with the basic First Amendment principle that there can be time, place and manner restrictions of speech.

In extreme cases, when it may be apparent that there is just no safe way for a rally or demonstration to occur, the campus can cancel it without offending the constitution or principles of academic freedom. This never can be done because of objections to the content of the message.

A claim of a threat to public safety never should be a pretext for silencing an unpopular speaker. But there are times when protecting people requires preventing or ending speech.

We live in a deeply polarized time. It seems that there is a greater willingness to express hatred than at any time in recent memory.

It feels like a rock has been turned over and white supremacists, who largely were underground, now feel able to publicly express their awful message. The First Amendment is based on a faith that it is better to allow speech, even hate speech, than to suppress it.

Crossposted from the Sacramento Bee

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