Offensive Language and Hate Speech

• Pages: 111-134
• Author: Daniel A. Farber

111

Chapter 6

OFFENSIVE LANGUAGE AND

HATE SPEECH

One of the enduring controversies involving the First

Amendment relates to speech directed against racial and other

minorities. Such speech include s a broad range o f racist, sexist, and

homophobic expressions, including face-to-face insults, graffiti, cross-

burning, and various kinds of publications. The problem of hate

speech has given rise to an extensive body of scholarly commentary.

Some scholars hav e argued for far-reaching changes in First

Amendment doctrine to expunge such speech from our society. Some

of their critics connect these efforts to ban hate speech with what

they call the “political correctness” movement on campus. Other

critics view the problem as genuine but argue for narrower responses

that require less change in First Amendment doctrine.

This chapter attempts to put this controversy in perspective.

The first section begins with a discussion of the First Ame ndment

doctrines covering government regulation of offensive expression. As

we will see, the Court has narrowly define d the situations in which

hate speech may be regulated. As discussed in the second section,

even where offensive speech is subject to regulation, the Court has

made it difficult to single out racist or sexist statements for special

treatment. The third section of the chapter explores some contexts in

which regulations targeting racis t speech may be permissible under

current law. The chapter closes by considering scholarly critiques of

current doctrine and propo sals for new forms o f hate speech

regulation.

I. Regulation of Offensive Expression

The simplest argument for regulating hate speech is that racist

epithets and expressions are appalling, and that members of racial

minorities have the right not to be exposed to them. As we will see,

however, the Supreme Court has left only very limited room for the

government to protect individuals from exposure to assaultive

speech.

A. Fighting Words and Hostile Audiences

Consider the following situation: One man steps up to another

in a bar and begins addressing him with a hostile stream of four-

letter words. Not only is this conduct likely to provoke violence, but

it seems unlikely to make much of a contribution to public discourse.

Indeed, this particular situation seems quite close to meeting the

112

THE CATEGORICAL APPROACH

Pt. II

Brandenberg incitement test, if we define “incitement” to include

deliberately provoking an attack on the speaker himself.

Not surprisingly, the Supreme Court has long taken the position

that such “fighting words” are unprotected by the First Amendment.

In Chap linsky v. New Ha mpshire,

1

the d efendant was a Jeho vah’s

Witness who had been haranguing an unfriendly crowd with the

message that cert ain religions are “rackets.” When a di sturbance

occurred, the traffic officer on duty at the intersection hustled the

speaker off to the police station, but without ever telling him formally

that he was under arrest. On the way, they encountered the city

marshal, who had earlier warned the speaker about the restive

crowd. (The marshal had also told hostile crowd members that the

defendant had the right to speak.) The marshal had heard that a riot

was underway and was hurrying to the scene. When he me t the

traffic officer and the speaker, he repeated his earlier warning about

the crowd, whereupon the speaker called him a “God damned

racketeer” and a “damned Fascist.”

The prosecution was brought under a statute that prohibited the

use of insulting language. The Court upheld the statute, which had

been construed to cover only language “plainly tending to excite the

addressee to a breach of the peace.” As the lower court had said, “[t]he

English language has a number of words and expressions which by

general consent are ‘fighting words’ when said without a disarming

smile. . . . Such words, as ordinary men know, are likely to cause a

fight.” According to the Court, fighting words—“those which by their

very utterance inflict injury or tend to incite an immediate breach of

the peace”—are “no essential part of any exposition of ideas, and are

of such slight social value as a step to truth that any benefit that may

be derived f rom them is clearly outweighed by the social interest in

order and morality.”

The Court’s language in Chaplinsky seems broad enough to

cover a great deal of what is now called hate speech. But since

Chaplinsky, the Court has taken a very n arrow view of the fighting

words doctrine, to the point where it is no longer clear whether the

doctrine retains any vitality. In Gooding v. Wilson,

2

the defendant

had been participating in an an tiwar protest which had blockaded a

military draft center. While the police were trying to restore access

to the draft center, he said to one of them: “White son of a bitch, I’ll

kill you,” and “You son of a bitch, I’ll choke you to death.” He was

convicted under statutory language like that in Chaplinsky. The

Court h eld tha t the statute was unconstitutionally overbroad. The

state courts had failed to limit the statute to utterances tending to

1

315 U.S. 568 (1942).

2

405 U.S. 518 (1972).