Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn a Careful Ban
26 Pages Posted: 9 Mar 2018
Date Written: February 23, 2018
After the violent white supremacy events in Charlottesville, Virginia, of August 2017, some scholars have written that "hate speech" is absolutely protected by the First Amendment. This paper, first delivered at a Symposium at UC Hastings College of the Law in San Francisco in September 2017, disagrees.
Scholars making the absolute doctrinal assertion tend to rely heavily on Justice Scalia's opinion for the Court in R.A.V. v. City of St. Paul, while ignoring, discounting or misreading the Court's later opinion in Virginia v. Black (which Justice Scalia joined and, in fact, would have taken further). Black clearly upheld, against First Amendment challenge and as consistent with R.A.V., a statutory ban on cross-burning (while striking down a separate statutory presumption of intent). This paper suggests that Black, as well as prior doctrine, would support a narrowly drawn and carefully administered ban on racial and religious hate speech. Meanwhile, the United States is party to a multinational Treaty (the International Convention for the Elimination of All Forms of Racial Discrimination, "ICERD"), which obligates us to try, if not inconsistent with the Constitution.
So that critics will have something specific to shoot at, a short draft statute is presented in the paper. Undoubtedly it can be improved -- and perhaps it should not be attempted at all. The dangers in giving any government the power to enforce a "hate speech ban" are real, and must be carefully considered. On the other hand, the dangers and harms caused by hateful speech are also real. A doctrinal assertion that such a statute must be unconstitutional without question is, I assert, in error.
Keywords: First Amendment, R.A.V., treaty, hate speech, Virginia v. Black, ICERD
JEL Classification: K10, K33
Suggested Citation: Suggested Citation