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Hate Speech

Hate speech is a concept that many people find intuitively easy to grasp, while at the same time many others deny it is even a coherent concept. A majority of developed, democratic nations have enacted hate speech legislation—with the contemporary United States being a notable outlier—and so implicitly maintain that it is coherent, and that its conceptual lines can be drawn distinctly enough. Nonetheless, the concept of hate speech does indeed raise many difficult questions: What does the ‘hate’ in hate speech refer to? Can hate speech be directed at dominant groups, or is it by definition targeted at oppressed or marginalized communities? Is hate speech always ‘speech’? What is the harm or harms of hate speech? And, perhaps most challenging of all, what can or should be done to counteract hate speech?

In part because of these complexities, hate speech has spawned a vast and interdisciplinary literature. Legal scholars, philosophers, sociologists, anthropologists, political theorists, historians, and other academics have each approached the topic with exceeding interest. In this current article, however, we cannot hope to cover how these many disciplines have engaged with the concept of hate speech. Here, we will focus most explicitly on how hate speech has been taken up within philosophy, with particular emphasis on issues such as: how to define hate speech; what are the plausible harms of hate speech; how an account of hate speech might include both overt expressions of hate (e.g., the vitriolic use of slurs) as well as more covert, implicit utterances (e.g., dogwhistles); the relationship between hate speech and silencing; and what might we do to counteract hate speech.

1.1 The Harms of Hate Speech

2. religious hatred and anti-semitism, 3.2 dogwhistles and coded language, 4. pornography, hate speech, and silencing, 5.1 the case for bans, 5.2 objections to bans, and some responses, 5.3 the supported counterspeech alternative, other internet resources, related entries, 1. what is hate speech.

The term ‘hate speech’ is more than a descriptive concept used to identify a specific class of expressions. It also functions as an evaluative term judging its referent negatively and as a candidate for censure. Thus, defining this category carries serious implications. What is it that designates hate speech as a distinctive class of speech? Some claim the term ‘hate speech’ itself is misleading because it wrongly suggests “virulent dislike of a person for any reason” as a defining feature (Gelber 2017, 619). That is not, however, the way in which the term is understood among most legal theorists and philosophers. Perhaps it would be useful to start with some examples.

Bhikhu Parekh (2012) lists the following instances as examples different countries have either punished or sought to punish as hate speech:

• Shouting “[N-words] go home,” making monkey noises, and chanting racist slogans at soccer matches.
• “Islam out of Britain. Protect the British people.”
• “Arabs out of France.”
• “Serve your country, burn down a mosque.”
• “Blacks are inherently inferior, lecherous, predisposed to criminal activities, and should not be allowed to move into respectable areas.”
• “Jews are conspiratorial, devious, treacherous, sadistic, child killers, and subversive; want to take over the country; and should be carefully watched.”
• Distribution by a political party of leaflets addressed to “white fellow citizens” saying that, if it came to power, it would remove all Surinamese, Turks, and other “undesired aliens” from the Netherlands.
• A poster of a woman in a burka with text that reads: “Who knows what they have under their sinister and ugly looking clothes: stolen goods, guns, bombs even?”
• Speech that either denies or trivializes the holocaust or other crimes against humanity.

Robert Post’s four bases for defining hate speech might help us organize the features of Parekh’s list:

In law, we have to define hate speech carefully to designate the forms of the speech that will receive distinctive legal treatment. This is no easy task. Roughly speaking, we can define hate speech in terms of the harms it will cause—physical contingent harms like violence or discrimination; or we can define hate speech in terms of its intrinsic properties—the kinds of words it uses; or we can define hate speech in terms of its connection to principles of dignity; or we can define hate speech in terms of the ideas it conveys. Each of these definitions has advantages and disadvantages. Each intersects with the first amendment theory in a different way. In the end, any definition that we adopt must be justified on the ground that it will achieve the results we wish to achieve. (Herz and Molnar 2012, 31)

The four definitional bases are in terms of: (1) harm, (2) content, (3) intrinsic properties, i.e., the type of words used, and (4) dignity. One could also attempt a hybrid definition by combining the ways mentioned. But, as is made clear in Post’s remarks, definitions of this sort are relative to the interests of the definer; “We must evaluate the status of ‘hate speech’ so defined in order to determine whether it achieves what we wish to accomplish and whether the harms of the definition will outweigh its advantages” (Herz and Molnar 2012, 31). The upshot is a rejection of a univocal definition that captures “the essence” of hate speech as a phenomenon.

It is important to note that many definitions of hate speech will not fall squarely within the categories Post outlines. For instance, the UN’s International Convention on the Elimination of All Forms of Racial Discrimination identifies hate speech both in terms of its content and its harmful consequences. Most definitions tend to characterize hate speech in multiple ways.

Harm-based definitions conceive of hate speech in terms of the harms to which targets are subjected. Things like discrimination or linguistic violence are candidates, though some (Gelber, 2017) argue that hate speech can harm one’s ability to participate in democratic deliberation. Susan Brison (1998a) offers a disjunctive definition that centers on a kind of abuse to targets. She defines hate speech as “speech that vilifies individuals or groups on the basis of such characteristics as race, sex, ethnicity, religion, and sexual orientation, which (1) constitutes face-to-face vilification, (2) creates a hostile or intimidating environment, or (3) is a kind of group libel” (313). ‘Harm’ as used by Brison refers to what Joel Feinberg describes “as a wrongful setback to (or invasion of) someone’s interests” (Brison, 1998b, 42).

Perhaps an immediate reaction to disjunctive definitions of the sort Brison offers is skepticism about the definitiveness of the purported list. When we go to test the definition’s application, we invariably find contestable inclusions and exclusions. Recall the examples from Parekh at the start of this section. Something like “Arabs out of France” might be included as an instance of hate speech on Brison’s account on the grounds that it creates a hostile or intimidating environment. Should statements that communicate a similar message in a less abrasive manner also be included? Suppose “Only French Nationals should occupy France” is roughly equivalent content-wise to “Arabs out of France.” If the former is indeed a less abrasive presentation though communicating the same content as the latter, what are we to make of its status? Many will find the statement odious; many will not. And since it is certainly not a face-to-face vilification or form of group libel, classifying it as hate speech will depend on how likely it is to create an intimidating or hostile environment.

The previous objection might entice one to opt for a content-based view. Content-based views define hate speech as that which “expresses, encourages, stirs up, or incites hatred against a group of individuals distinguished by a particular feature or set of features such as race, ethnicity, gender, religion, nationality, and sexual orientation” (Parekh, 2012, 40). This version makes it easier to conceive of semantically equivalent statements that differ in manner of presentation as instances of hate speech.

Content-based accounts face the challenge of determining which contents meet this standard. If the content that distinguishes hate speech from other types of speech must express, encourage, or incite hatred towards groups or individuals based on certain features, then the proponent of this view will need an account of expression. Is the speech in view that which signals the presence of a particular mental state in the speaker (i.e., hate) or that which is likely to prime feelings of animosity in a specific audience?

Another issue facing content-based approaches concerns distinguishing between speech that “respects ‘the decencies of controversy’” and that “which is outrageous and therefore hate inducing” (Post, 2009, 128). The ability to express a wide range of views, even contentious ones, is a cherished aspect of democratic societies. Failure to observe this distinction would broaden the scope of what counts as hate speech perhaps too much. In order to make this distinction, one could follow Post in tying it to “ambient social norms” that distinguish outrageous and respectful behavior. One challenge though is in determining the content of those social norms. For instance, a minority group whose opinions have little impact on the makeup of norms are unjustifiably excluded from influencing the shape of their society’s civility norms.

Definitions of hate speech based on intrinsic properties generally refer to those that emphasize the type of the speech uttered. What is at issue is the use of speech widely known to instigate offense or insult among a majority of society. Explicitly derogatory expressions like slurs are paradigmatic examples of this type of view. In general, the type of speech identified on this account is inherently derogatory, discriminatory, or vilifying.

Though attractive at first glance, classifying hate speech along these lines might prove to fall short in two ways. First, defining hate speech in this way might be too constricting. Some of the examples in our initial list would seem not to count as hate speech since they arguably lack the intrinsic features. “Arabs out of France,” for example, does not contain explicitly slurring terms. And second, this definition might prove too expansive. In cases where slurs are reappropriated by members of the target group or where artists incorporate them into a creative work, it would appear odd to count these as instances of hate speech. The concern is tied specifically to locating the issue in the terms themselves, as opposed to the use to which the terms are put.

Perhaps a final challenge to intrinsic property views can be derived from the work of Judith Butler (1997). On Butler’s account, hate speech is a kind of performative that is “always delivered twice-removed, that is, through a theory of the speech act that has its own performative power” (96). More specifically, “[w]hat hate speech does … is to constitute the subject in a subordinate position” (19). Butler locates the trouble with hate speech in its perlocutionary effects, a concept introduced by J.L. Austin that refers to the effects a speech act can have on its audience. An example of a perlocutionary effect is feeling amused at a joke or frightened from the telling of a ghost story. Unlike with intrinsic property definitions, Butler shifts focus to the nature of the acts performed rather than the terms in use. (For a critical look at Butler’s account, see Schwartzman (2002).)

Lastly, dignity-based conceptions focus primarily on the role of harms to the dignity of targets of hate speech. For instance, both Steven Heyman (2008) and Jeremy Waldron (2014) appeal to dignity in their accounts. Broadly speaking, hate speech on this kind of conception amounts to speech that undermines its target’s “basic social standing, the basis of [their] recognition as social equals and as bearers of human rights and constitutional entitlements” (Waldron, 2014, 59). This conception of hate speech will also include characterizations in terms of group defamation or group libel. Section 130 of Germany’s penal code is an example of legislation that incorporates a dignity-based conception of hate speech, prohibiting “attacks on human dignity by insulting, maliciously maligning, or defaming part of the population” (see Waldron, 2014, 8).

Worries about application follow dignity-based conceptions as well. Firstly, there may be questions about how we, in particular instances, are to distinguish between false statements about a group as a whole and those about a particular member of a group (Brown, 2017a). Presumably, only the former is consistent with an understanding of hate speech as a group-based phenomenon. Secondly, an implication of the view appears to be that it expands the range of things that would count as hate speech. Any speech that calls into question the basic standing of certain groups falls under this notion, which may make it more difficult to distinguish between contentious political speech and hate speech.

Perhaps a lesson to draw from the profusion of disjunctive definitions is a general skepticism about a definitive description of hate speech. We might concur with Alexander Brown that ‘hate speech’ is an equivocal term denoting a family of meanings (Brown 2017b, 562). According to Brown, ‘hate speech’ isn’t just a term with contested meanings, but rather, it is “systematically ambiguous; which is to say, it carries a multiplicity of different meanings” (2017b, 564). Because the expression is what is typically referred to as an essentially contested term, the hunt for a univocal or universal definition is futile.

The harms that have been attributed to hate speech comprise a long and varied list, ranging from the immediate psychological harms experienced in the moment by the person(s) targeted by an instance of hate speech, to much more long-term impacts that affect not only those targeted but whole communities, and even the strength of an entire nation.

A distinction between “assaultive hate speech” and “propagandistic hate speech” is helpful when discussing these harms (Langton 2012; 2018a; see also Gelber and McNamara (2016) who discuss “face-to-face encounters” and “incidences of general circulation”). Hate speech yelled at an individual on the street, or from a passing car, is a face-to-face encounter, and an assaultive speech act. This is, moreover, most often inter-group hate speech, where the speaker(s) are, for example, white, and the targets are non-white. On the other hand, propagandistic hate speech is often intra-group speech, spoken by members of one group to fellow ingroup members (e.g., a white person to other white people). The newsletter of the KKK, therefore, would fit into this category.

While this distinction is helpful to keep in mind, it should also not be overstated. Summarizing the results of their study which surveyed the experiences of the victims of hate speech, Katharine Gelber and Luke McNamara conclude that “the distinction between face-to-face encounters and general circulation hate speech is not always clear in the everyday experiences of racism endured by targets” (2016, 326). Any one instance of hate speech might fall into both categories. For example, it may occur in its first instance as an assaultive speech act, and then reports of the event may then take on a propagandistic aspect, as it is spread among the community. Similarly, even if an instance of hate speech is intended as a piece of propaganda, it may, when encountered by a member of the community it disparages, be akin to assaultive speech.

Still, this distinction helps reveal the wide range of the types of speech acts that are plausibly harmful, and also offers insight into how they harm. For example, Waldron (2014) focuses mainly on hate speech in its propagandistic mode, which he argues undermines the public assurance of equal social standing that members of non-dominant communities are entitled to—in his terms, their assurance of dignity. On this view, public hate speech—e.g., flyers that read ‘Muslims Out!’—is “an environmental threat to social peace, a sort of slow-acting poison, accumulating here and there, word by word” (2014, 4). Its harm is therefore one that attacks the broader society, and not just individuals targeted by hate speech.

On the other hand, the essays in the classic Words that Wound tend to focus more on what its authors term “assaultive speech,” that is, “words that are used as weapons to ambush, terrorize, wound, humiliate, and degrade” (Matsuda et al. 1993, 1). This leads them to focus more on hate speech’s ability to produce “direct, immediate, and substantial injury” (Lawrence, 1993, 57), such as “immediate mental or emotional distress” (Delgado, 1993, 93–94). On this approach, the most evident harms of hate speech are psychological. These psychological injuries scale up, however, when hate speech is endemic, and so result in the types of community or social harms highlighted by authors like Waldron. For this reason, the distinction between these approaches may be thought of as more a matter of emphasis.

This relationship between individual harms and broader social harms is also evident once we acknowledge the long-term effects of hate speech on victims, in addition to its more immediate impacts (Delgado and Stefancic, 2004, 14). Victims of hate speech may first experience “psychological symptoms and emotional distress” like heightened stress and fear in the immediate aftermath of assaultive hate speech, but they may also experience far-ranging consequences if they “modify their behavior and demeanor” to avoid receiving further hate messages, limiting their ability to participate fully in society (Matsuda, 1993, 24). Gelber and McNamara’s interview subjects confirm this complex web of effects that hate speech may cause, highlighting how “harms are often enduring and not ephemeral” (2016, 336). In this way, hate speech is both an immediate attack on one’s health and dignity, along with a threat to their community’s position in society. The cumulative effect of hate speech events, therefore, is a collection of harms located both in individuals and communities, which blurs the distinction between assaultive and propagandistic hate speech events.

Constitutive and Consequential Harms

Another distinction which is similarly helpful, but also fraught, is the distinction between constitutive and consequential harms—that is, harms that occur in the saying of some utterance of hate speech, and those that are its downstream results (see Maitra and McGowan, 2012, 6). This distinction draws on the speech act theory of J.L. Austin (1962) and has served an important role in the examination of hate speech from feminist philosophers of language (see, e.g., Langton, 1993; 2012; Maitra and McGowan, 2012; Maitra, 2012; McGowan, 2004; 2009; 2012; 2019; and others). Constitutive harms are those that correspond to what Austin called the illocutionary act , the act performed in saying X , while consequential harms correspond to perlocutionary effects , the results brought about by saying X . Most (though not all) of the harms surveyed above comprise consequential harms, as items such as psychological injury, feelings of fear, and societal withdrawal all most naturally fall into the perlocutionary effects category.

However, philosophers have also drawn attention to how hate speech can injure in a different way by indirectly affecting the positions of the social groups targeted by hate in a social hierarchy. That is, “by fixing facts about the distribution of social power, including facts about who has this power, and who lacks it” hate speech harms in a way not captured in the above account of individual injuries and their cumulative effects (Maitra and McGowan, 2012, 7). This is an immediate harm that occurs in the saying of the speech act, which (given appropriate circumstances and uptake) produces a shift in the normative landscape. It is in this way that an instance of hate speech may not only cause the injuries surveyed above but may also, for example, rank Indigenous Peoples as inferior, legitimate discriminatory behavior towards them (perhaps via incitement), or potentially silence them. (We return to the notion of silencing as an illocutionary harm of hate speech in Section 4 below.)

One reason to direct our attention towards the constitutive harms of hate speech is its potential to productively advance the debate over the legitimacy of potential restrictions. Mary Kate McGowan (2009) has made this case most explicitly. “Rather than focus on what a certain category of speech causes,” she writes, we ought to be “interested in what such speech actually does, in and of itself” (2009, 389–90). The idea here is that by focusing only on the harms caused by hate speech, we are inevitably drawn into a debate about balancing the costs and benefits of permitting or regulating speech, which often leads to an impasse. Alternatively, turning our attention to the acts hate speech constitutes can reveal features that help us avoid question of balancing harms, and opens the door to regulation. On this approach, some instances of hate speech can be seen to constitute acts of (verbal) discrimination, and should be considered analogous to other acts of discrimination—like posting a ‘Whites Only’ sign up at a hotel—that US law recognizes as illegal. As a speech act, hate speech can enact discriminatory rules in much the same way the physical sign does, and so ought to similarly be restricted (McGowan, 2012). This argument proceeds by a development of Austin’s notion of “exercitives,” which are speech acts that enact rules in a given domain, and is one example of the fruitful use of speech act theory to the philosophy of hate speech.

At the same time, however, it’s worth acknowledging that the distinction that this analysis relies on—between illocutionary acts and perlocutionary effects—is one that some argue is untenable (for one example, see Kukla, 2014). As illocutionary acts are indeterminate or incomplete without some form of audience uptake, it is difficult to articulate precisely how we ought to distinguish a speech act’s effects from its inherent qualities. Furthermore, the testimonials of victims of hate speech “suggests that there is a close and complex relationship between constitutive and consequential harms, and the harms are experienced cumulatively” (Gelber and McNamara 2016, 336–37). As such, any attempt to draw too neat of a distinction between these two types of harm risks misrepresenting victims’ experiences, and might tie the attempt to restrict hate speech unhelpfully to a philosophically contested distinction.

As a result, some caution must be applied when marking too stark of a contrast between these harms. Much like the distinction between assaultive and propagandistic hate speech, then, we can consider the distinction between consequential and constitutive harms to be analytically helpful in exploring the variety of harms attributable to hate speech, while recognizing that it is at the same time an abstraction from the on-the-ground realities of hate speech.

Religious belief is sometimes the source of putative cases of hate speech, and sometimes its target. In both cases, assessing the conceptual addition of religion to hate speech is a difficult task. Speech rooted in religious conviction is sometimes subjected to scrutiny to determine whether instances should count as hate speech or not. For instance, the Westboro Baptist Church’s demonstrations often make use of slurs and other explicitly defamatory language. This is an extreme case, which can be accommodated by extant hate speech legislation. Other cases, however, involve religious leaders making contentious statements—for instance, questioning the legitimacy or recognition of LGBT+ individuals, while claiming these are statements of love, not hate. Questions about religious speech of this sort concern whether it is simply contentious speech liberal democratic societies must tolerate or speech that runs afoul of deeply held norms that ought to be proscribed.

Some wonder whether religious sensibilities should be afforded special protection from offense. Amnon Reichman (2009), for instance, notes that some Israeli scholars have argued that providing special protection for religious beliefs is a good idea “so as not to push [religious] believers into having to choose between the authority of the state and the authority of their religion (namely, the authority of God)” (338). This relies on an assumption that religion is an institutionalized normative regime in competition with a legal regime where clashes over religious beliefs threaten the social fabric of society. It is in turn prudent to mitigate such clashes in order to avoid situations of unrest like the incidents involving comedic cartoons of Mohammed in the Dutch newspaper Jyllands-Posten and the French publication Charlie Hebdo .

It is not clear, however, that religious beliefs warrant special protection over other forms of belief that may be just as strongly held. Clashes over deeply held political beliefs can pose a similar threat to the social fabric as religious beliefs. Thus, there is no reason to think the same concern should not apply quite broadly. Providing certain types of speech special protection on these grounds would threaten to introduce quite repressive legislation on speech in general.

Holocaust denial, denial of the Armenian Genocide, and the denial of other crimes against humanity have also been the subject of special legislation, especially in Europe. As Michael Whine (2009) notes, 16 European states, as well as Israel, have criminalized Holocaust denial (543). In these contexts, at least one rationale for banning speech that denies or trivializes the Holocaust concerns its role in inciting hatred (Altman, 2012). One possible justification for such legislation rests on claims about what denial speech is. According to Martin Imbleau (2011), denial speech poses as an historical endeavor but is really propaganda. The denier’s aim is to “eradicate the awareness of the truth that prevents the resurgence of past criminal ideologies” (2011, 238). But if this is the rationale, it potentially opens up justifications for much broader application since similar claims might be made of other forms of propaganda. (For a general overview on Holocaust denial, see Robert Wistrich (2012) and Behrens et. al (2017).)

3. Slurs, Code Words, and Dogwhistles

As Parekh, Brison, and others have noted, hate speech can be expressed both explicitly and subtly. We can identify a few different expression-types that map onto the explicit and subtle instances, i.e., slurs , code words , and dogwhistles . The subtler forms may fall outside the scope of narrower conceptions of hate speech.

Perhaps the type of expression most often cited as the paradigm case of hate speech is slurs. Slurs are typically characterized as a type of insult that targets race, gender, sexual orientation, nationality, ability, politics, immigrant status, geographic region, and other categories. Much of the literature on slurs focuses primarily on the semantic and pragmatic properties of this linguistic class, with the expectation that such analyses also provide an account of how they in fact derogate their targets. There are, of course, competing accounts, some of which may be better suited than others for the purposes of legal and ordinary concepts of hate speech.

Before delving into competing accounts, it is good to put a working definition of ‘slur’ on the table. Typically, slurs are understood as conventionalized ways of demeaning and derogating individuals or groups of individuals and are contrasted with a co-referring neutral counterpart (Jeshion, 2013a; 2013b; Camp, 2013; Cepollaro, 2015). For instance, the following differ in regard to offense but are otherwise taken to make similar claims,

For many, (3.1) is regarded as offensive whereas (3.2) is simply a descriptive statement. The expression ‘cracker’ in (3.1) is a slur, while ‘white people’ in (3.2) is its purported neutral counterpart.

Though there seems to be widespread consensus that slurs have or could have neutral counterparts, not everyone shares this sentiment. Lauren Ashwell (2016), for example, denies that neutral counterparts (which she refers to as ‘neutral correlates’) play an essential role in identifying slurs. Ashwell claims that gendered slurs like ‘bitch,’ ‘slut,’ and ‘sissy’ derogate in ways similar to racial and ethnic slurs like ‘n***er,’ ‘k*ke,’ ‘cracker,’ and ‘sp*c,’ yet lack neutral counterparts. As a result, a definition need not include reference to neutral counterparts. In fact, making neutral counterparts central to defining slurs renders one incapable of accounting for terms that function similarly to slurs yet lack this purportedly central feature.

Ashwell makes a compelling case for the claim that gendered slurs lack neutral counterparts. Her larger claim that counterparts’ inessentiality for defining slurs has implications for pragmatic and semantic accounts that are also worth taking seriously. According to Ashwell, both sorts of accounts depend on the existence of neutral counterparts in their explanations of slurs.

Existing pragmatic accounts of slurs’ derogating capabilities are in particular trouble, for they tend to hold that a slur’s semantic contribution to a sentence is identical to the contribution that its neutral correlate would have had if it were used instead. This kind of account also leaves open the possibility that the slur could be sanitized—cleansed of its derogatory aspect—without semantic meaning change. … Existing semantic accounts, however, are not much better off—they are also structured to require the existence of a neutral correlate. (2016, 229)

For Ashwell, pragmatic and semantic accounts of slurs structurally require neutral counterparts, and so simply cannot jettison them. One response proponents of these kinds of accounts could give is that the gendered insults Ashwell highlights might exhibit properties that call their status as slurs into question. It could be open to these theorists to suggest that the terms they have identified as a matter of fact do carry neutral counterparts, that this is part of what distinguishes them as a class. And while the expressions Ashwell identifies seem to pattern in some ways like slurs, they also exhibit features that make them dissimilar. Thus, there is no need to wedge all insulting expressions into one class; there is room to expand our classifications in a way that preserves clarity.

Another important issue about slurs is their power to offend. Part of what makes them prime candidates for paradigmatic instances of hate speech is a widespread belief in their offensive potency. Indeed, much of the literature on slurs simply assumes they are offensive without offering much (if any) defense of that claim. It is not always clear whether the reader is supposed to understand offense as the provocation of a disliked mental state or as the violation of widely-accepted public norms.

Renée Bolinger (2017) discusses three ways to understand the claim that slurs are offensive:

• An audience actually took offense at a slurring utterance;
• The utterance warranted offense;
• Whether or not offense was warranted, it was rational for the audience to take offense.

The sense of ‘offense’ in (1) tracks how audiences actually respond at the moment of utterance. This could not be the sense in which offense is understood for at least two reasons. First, doing so would make the claim ‘slurs are offensive’ too strong. Since we would be tracking cases of actual offense, we would be focusing on particular uses of slurs, explaining what makes those utterances offensive rather than explicating the offensiveness of a linguistic class. As a result, the most natural interpretation of the claim would be that slurring utterances are invariably offensive, i.e., the use of slurs always provokes disliked mental states.

This, of course, raises a couple of questions. To begin with, does the strong claim deny the existence of non-offensive slur uses? Given things like linguistic reappropriation, some instances of indirect reports, and even instances of direct reports—especially by members of the slur’s targeted group—in which it is possible to utter slurs without provoking a disliked mental state in the speaker’s audience, the claim is obviously false. Further, there are also questions about who constitutes the audience . Is the relevant audience the one intended by the speaker? Everyone who witnesses the utterance? Only those who are present in the utterance situation? Because the claim must now be understood to be about particular slur utterances rather than the linguistic type, the claim must reflect the diversity of reactions provoked by different tokenings of slurs. A second reason is related to the questions about the audience: does everyone in the audience have to be offended, or is it sufficient if one, some, or a few are? What is the scope of the claim with respect to offended reactions? The answers to these questions will likely render the strong version of the claim untenable and weaker versions suspect. Thus, it is probably not the sense of ‘offense’ one should start with.

The sense expressed in (2) concerns moral justification for taking offense. Bolinger identifies three grounds for warranted offense at an utterance: intention, inappropriateness, and associations. A speaker may intend to offend, often doing so with expressions that are taboo, and thus considered inappropriate. Vulgar expletives like ‘fuck,’ ‘dick,’ or ‘shithead’ are typically viewed as inappropriate terms, at least in certain “polite” settings. Some expressions, like slurs, are not only inappropriate, but also carry associated attitudes and/or practices that amplify their offense. The swastika and confederate flag, for example, are both deeply associated with oppressive and genocidal practices towards Jewish people and African Americans, respectively.

This sense of offense still concerns one’s response to something, though it is not simply about how one reacts but one’s warrant to do so: “An utterance may warrant, but fail to actually generate offense merely because either there is no hearer, or the hearer fails to find the utterance offensive (perhaps because she shares the offensive attitude, fails to take it seriously, or misinterprets the utterance)” (Bolinger, 2017, 441). Bolinger notes that the associational offense category in particular is the one that is often the subject of hate crime legislation (ibid., 442). Such terms are often backed by formal social institutions, “adequately visible practices,” or a combination of both.

In (3), Bolinger uses ‘rational’ or ‘license’ to refer to the epistemic justification an audience has in taking offense at a slurring utterance. Here a gap opens up between what an audience member may be warranted in taking offense at as opposed to when it may be rational to do so. For instance, if a non-native speaker used a slur to refer to someone and we come to find out they were ignorant of the expression’s status as a slur, the target would still have been rational to take offense even if unwarranted. Undoubtedly, any of the three senses discussed may factor into an explanation of a given slur’s offense. However, theories of slurs are more appropriately aimed at capturing warranted and rational offense.

Consider again the following pair of statements:

The most straightforward explanation of the difference between (3.1) and (3.2) is that ‘cracker’ differs in some semantic respect from ‘white people’. Two of the most well-known versions of this approach are from Chris Hom (2008) and Elisabeth Camp (2013). On Hom’s account, ‘cracker’ as opposed to ‘white people,’ contains derogatory content. Slurs’ derogatory content is determined by the social institutions that undergird them, which consists of two components: an ideology and a set of practices . Hom defines an ideology as “a set of (usually) negative beliefs about a particular group of people” (431). As for the set of practices, these are racist practices that “can range from impolite social treatment to genocide” (ibid.). The two components combine to produce slurs’ semantic content, which contains a normative claim about the way individuals ought to be treated, because of possessing certain characteristics in virtue of being a member of an identifiable social group. (For alternative accounts of the relationship between slurs and ideology, see Kukla (2018) and Swanson (2015, Other Internet Resources).)

The pair of sentences in the example used here is illustrative of an observation many will have noticed when considering different examples. The slur in (3.1) is typically experienced as less offensive than ones that target members of marginalized groups. Language users recognize variation in offensive potency among slurs, some being more offensive than others. Hom refers to this as derogatory variation . Difference in the virulence of those backing racist institutions explains variation in offense on Hom’s account. Thus, ‘cracker’ is less offensive than slurs like ‘n***er,’ ‘sp*c,’ and ‘f*g’ because the racist and homophobic institutions backing them are much more virulent. (One might also wonder if there is any racist institution backing slurs for members of dominant groups at all.)

One objection raised against Hom’s view is that the semantic content he proposes of slurs is overwrought (Jeshion, 2013b). Robin Jeshion argues that Hom’s view “attributes highly specific sets of ideologies and modes of treating the group, yet it is doubtful that anything so semantically rich and well defined is semantically encoded in the slur” (318). That is, it is doubtful the racist means anything this racialized. Jeshion denies that slurs express anything as robust as Hom claims.

Camp offers an alternative semantic account in which slurs bear a close relationship to a perspective , which are “open-ended ways of thinking, feeling, and more generally engaging with the world and certain parts thereof” (2013, 335–336). According to Camp, a speaker’s slur use “signals a commitment to an overarching perspective on the targeted group as a whole” (ibid., 337). The perspective is a negative one that highlights certain characteristics or properties specifically associated with particular groups, ones that are presumed to warrant certain affective and evaluative responses.

What makes slurring perspectives a semantic feature for Camp is that they do not “merely signal … allegiance to a certain perspective,” but do so “in an overt and nondefeasible way, precisely in virtue of employing that expression” (ibid., 340). The use of a slur inserts a willful and noncancelable way of thinking about the target into a conversation. This is codified in the expression itself, and not something audiences “figure out” through the use of pragmatic mechanisms. This appears to be bolstered by the fact that one typically cannot erase a slur’s derogation by following up with a statement intending to do so, e.g.,

The tension of the contrast is one an audience might generally think finds its source in the meaning of the slur itself, rather than from features that emerge from the way language is used in a particular context. Further, as we saw in Jeshion’s objection to Hom’s view, the information slurs manage to convey isn’t very specific. This point is consistent with the open-ended nature of the perspectives Camp associates with slurs.

Though Camp’s account represents a marked improvement, critics still see shortcomings they believe should give us pause. Geoff Nunberg (2018), for instance, argues that Camp’s characterization of perspectives is too vague to capture the more specific colorings of slurs for specific groups: “Whatever distinguishes redskin from injun or nigger from coon , it’s more precise and richer than simply a disposition to think about the referents in certain ways” (Nunberg, 2018, 260–261). According to Nunberg, what is central for how slurs work is not the perspective the user employs to think about their target, but the allegiance it signals to a group or community disposed to think negatively of the target.

To take an obvious case, when you call a woman a shiksa you’re not just allying yourself with a disposition to think about gentile women in certain ways, but with the people who have that disposition. That group affiliation is primary and prior to the perspective it evokes: you can use shiksa appropriately without having any specific views of gentile women at all, but not without identifying with Jews. (ibid., 261)

For some theorists, the accounts offered by Hom and Camp leave out what they regard as an important aspect of slurring, namely, the role attitudinal expression plays in their derogatory power. These views agree that the difference between slurs and their purported counterparts is located in the realm of semantics; the previous accounts just leave out an important aspect. Jeshion (2013a) identifies three components of slurs’ semantics: (i) a truth-conditional component, (ii) an expressivist component, and (iii) an identifying component. The truth-conditional component of slurs corresponds to the same group referenced by its purported neutral counterpart. The expressivist component captures slurs’ ability to express contempt towards members of socially relevant groups in virtue of their group membership. Finally, the identifying component ascribes a property to the group that is seen as central to its identity. Mark Richard (2010) also proposes a view in which negative attitudes are included in the explanation of what slurs express. Jeshion and Richard’s accounts are typically referred to as expressivist views.

One issue expressivist views have been thought to have trouble with is derogatory variation . Derogatory variation refers to the sociolinguistic datum that slurs vary in their offensive potency. If we represent degrees of offense on a scale, slurs like ‘n***er’ and ‘k*ke’ are higher up on the scale than slurs like ‘cracker’ and ‘wop.’ Expressivist views have typically attributed one sort of attitude to slurs— contempt —which seems inadequate to capture the complexity of their offense profiles. For instance, consider co-referring slurs that vary in offense. Expressivist accounts appear to lack the resources to account for this variation. Thus, expressivism fails as an account of slurs for this reason.

Jeshion (2013a) attempts to answer this objection by arguing that her expressivist view “is only incompatible with versions of derogatory variation that stipulate that the variation derives from the semantics” (243). Jeshion maintains that focusing on slurring terms rather than particular utterances of those terms causes us to reflect on various factors at play that contribute to their power to offend. In effect, such focusing obscures the various factors brought to bear on judgments of offensiveness. Thus, Jeshion claims we ought to think our intuitive judgments about varying offense support the following thesis:

Derogatory Variation-Utterance : Utterances of different slurring terms engender different degrees of intensity of offensiveness. (2013a, 244)

Jeshion argues that this thesis is compatible with her account because weaponized uses of slurs are offensive for several reasons: semantic, pragmatic, sociocultural, and historical. As a result, there should be no expectation that a semantic view like hers need explain derogatory variation semantically.

Inferentialism describes slurs in terms of the kinds of inferences they license. Proponents of this kind of view include Robert Brandom (1994), Michael Dummett (1993), Lynne Tirrell (1999) and Daniel Whiting (2008). Tirrell, for instance, remarks that the “meaning of a word or expression is a matter of its various actual and possible sentential roles” (1999, 46). In characterizing the meaning of the now-outdated slur ‘boche,’ Dummett remarks,

The condition for applying the term to someone is that he is of German nationality; the consequences of its application are that he is barbarous and more prone to cruelty than other Europeans. We should envisage the connections in both directions as sufficiently tight as to be involved in the very meaning of the word: neither could be severed without altering its meaning. (1993, 454)

On Dummett’s account, to know the meaning of ‘boche’ is to make the inference from the referent being German to his being barbarous and more prone to cruelty than other Europeans.

Inferentialism also has its challenges. Timothy Williamson (2009), for example, opposes inferentialism by charging that it has difficulty explaining how non-bigots, who are not disposed to draw negative inferences, still understand their use. “We find racist and xenophobic abuse offensive because we understand it, not because we fail to do so” (257). We should note the inferentialist is not without resources to respond to Williamson’s charge. For example, Brandom’s (1994) inferentialism determines understanding in terms of grasping the broad network of inferential connections in which an expression is situated. An important implication is thought to be that different speakers will understand the expression similarly while associating it with different inferential roles, escaping Williamson’s charge that one must be disposed to draw slurring inferences to understand the term (see Steinberger and Murzi, 2017). However, Brandom’s view is itself controversial (For further objections to inferentialism, see Anderson and Lepore (2013b); Hornsby (2001).)

The last view we mention here is a stark alternative to the previous accounts, opting for a socioculturally-driven explanation. According to Luvell Anderson and Ernie Lepore, slurs are prohibited expressions whose tokenings provoke offense from those who value and respect their prohibitions: “What’s clear is that no matter what its history, no matter what it means or communicates, no matter who introduces it, regardless of its past associations, once relevant individuals declare a word a slur, it becomes one ” (2013a, 39). The prohibition is meant to apply not only to uses but mentions of expressions as well, including direct and indirect reports.

One objection raised against prohibitionism comes from Camp (2018). Camp asserts that though the view is simple and powerful, “it threatens to work too well” by failing to account for some complexities. In particular, Camp claims “slur’s truth-assessibility and projective behavior are more variable than [prohibitionism] predicts” (2018, 33). She believes, for instance, that it is sometimes easy to “quarantine” a slur’s offensiveness within a report like,

John thinks that the s**cs will have taken over the whole neighborhood in another couple years. But of course, I think it’s great that we’re developing such a vibrant Latino community.

The offense of the slur in this statement is judged to be relativized to John rather than the person reporting it.

Which view of slurs one adopts has implications for how one conceives of their harm. For instance, adopting a content-based view of slurs may encourage one to adopt a content-based definition of hate speech, which suggests that the harm produced is in the message being communicated. Adopting an expressivist view, on the other hand, could lead one to lean more towards an intrinsic property account. (For further alternative accounts to the ones mentioned in this section, see Popa-Wyatt & Wyatt (2017), Bach (2018), Croom (2011), Kirk-Giannini (2019), and Neufeld (2019).)

In addition to slurs, which are explicitly derogatory, researchers have also focused on more implicit forms of derogatory communication. Tali Mendelberg (2001), Ian Haney Lopez (2015), Jennifer Saul (2018) and Justin Khoo (2017) detail the use of racially coded language— dogwhistles— to access existing racial resentment while making surreptitious racial appeals. Saul provides a useful set of distinctions for thinking about dogwhistles: they can be explicit or implicit , and further, intentional or unintentional . Saul uses the work of linguist Kimberly Witten to define an overt intentional dogwhistle as,

a speech act designed, with intent, to allow two plausible interpretations, with one interpretation being a private, coded message targeted for a subset of the general audience, and concealed in such a way that this general audience is unaware of the existence of the second, coded interpretation. (2018, 362)

Saul illustrates this kind of dogwhistle with an example from George W. Bush’s 2003 State of the Union speech:

The phrase ‘wonder-working power’ is meant as an overt intentional dogwhistle for Evangelical Christians. According to Saul, there are two possible messages Evangelicals can take away from Bush’s utterance. The first message is simply a translation:

Yes there’s power, the power of Christ, in the goodness and idealism and faith of the American people. (362)

The second message is that Bush identifies with them, that he speaks their language. Saul thinks both are instances of overt intentional dogwhistles.

A covert dogwhistle, according to Saul, is “a dogwhistle that people fail to consciously recognize” (2018, 365). She is particularly interested in how covert intentional dogwhistles work in tandem with what psychologists have referred to as racial resentment , a belief system that is measured by the degree to which participants agree to the following four claims:

• Blacks no longer face much discrimination;
• Their disadvantage mainly reflects their poor work ethic;
• They are demanding too much too fast;
• They have gotten more than they deserve. (2018, 364 quoting Tesler & Sears 2010, 18)

According to Mendelberg, racial resentment remains widespread among white Americans even though explicitly racist appeals have come to be viewed as outside the bounds of acceptable political speech. (At least, that seemed to be the case up until the 2016 presidential election cycle.) White voters, on this model, tend to shy away from accepting explicitly racist proposals because they do not want to think of themselves as racist. The existence of racial resentment allows for the skilled intentional use of utterances that are unrelated to race on the surface yet access negative racial attitudes in a targeted audience, nudging them towards a particular course of action--e.g., voting for a preferred candidate.

An example of a covert intentional dogwhistle is the infamous Willie Horton ad used by the George H. W. Bush campaign in 1988. The ad targeted a prison furlough program in place during Michael Dukakis’s term as governor of Massachusetts. It presented a picture of Horton, an African American man, who while out on furlough raped a white woman and stabbed her husband. Though there was no explicit mention of race, it was clear to many that the ad drew on racial tropes about Blackness and criminality to stoke fear in white voters. In support of the interpretation that this was a covert dogwhistle, Saul notes that once the specter of race was raised about the ad, its effectiveness started to wane (2018, 366). The implication is that while the explicit appeal to racial resentment was a losing strategy, implicit appeal in the form of covert dogwhistles could be put to powerful use.

The unintentional dogwhistle is defined as an “unwitting use of words and/or images that, used intentionally, constitute an intentional dogwhistle, where this use has the same effect as an intentional dogwhistle” (2018, 368). Dogwhistles of this sort are passed on by unwitting others while achieving similar effects of the original intentional one. A special case of unintentional dogwhistles, what Saul calls amplifier dogwhistles , occurred when reporters and TV producers played the Willie Horton ad repeatedly. Presumably, the repeated presentations continued to make the associations between Blackness and criminality and, thus, continued to stoke fear and racial anxiety in significant portions of the white viewing public. For Saul, dogwhistles are therefore best understood functionally, and the difference in speaker-intentions between intentional and unintentional dogwhistles matters only insofar as we define them—their effects, in other words, are often identical.

The use of implicit means like dogwhistling—in both its covert and overt forms—can make the conceptualization and detection of hate speech more difficult. Undoubtedly, this poses a challenge for defining hate speech since dogwhistles are often designed to be innocuous. But what is it that explains the effects often attributed to dogwhistles? That is, how is it possible for language to work in this way?

Perhaps there is good reason to think something about dogwhistles’ meaning explains their effects. Consider, first, an ambiguity thesis that states code words have at least two meanings, a racial and a non-racial meaning. The expression ‘inner city’ in

purportedly expresses two meanings: (i) densely populated, high crime, urban areas, or (ii) poor African American (Khoo, 2017, 40). An ambiguous expression can be used in an utterance to produce a statement that leaves undetermined which interpretation is intended by the speaker.

One worry, however, is that terms like ‘inner city’ are not actually ambiguous. Khoo argues these terms do not behave like genuinely ambiguous expressions. Compare the following two sentences,

A reading of (3.6) is supposed to sound coherent given that ‘funny’ can mean ‘humorous’ or ‘strange’ whereas (3.7) is supposed to sound odd, even contradictory. If ‘inner-city’ were genuinely ambiguous in the way described above, we should be able to use it to mean ‘African American’ and get a coherent reading of (3.7).

A second view posits two dimensions of meaning for code words, at-issue and not-at-issue content. At-issue content is the main point of a speaker’s utterance, the directly asserted content that is foregrounded whereas not-at-issue content is projective , meaning it is able to survive embedding under operators like negation and modals (Tonhauser, 2012). Consider,

The at-issue content of (3.8) is represented by (a) and the not-at-issue by (b):

• John does not smoke.
• John used to smoke.

Note the difficulty in directly denying the not-at-issue content. If one were to follow an utterance of (3.8) with,

you would presumably find this odd and incoherent. A much more elaborate statement is needed to deny the not-at-issue content.

Applying this to view to ‘inner-city’ in (3.5), we end up with:

• At-issue : A poor, densely populated, high-crime, urban area.
• Not-at-issue : Those living in such areas are mostly African American.

Because the racial component of (3.5) is not-at-issue, we have a reasonable explanation for why the following pair of sentences clash,

An objection to this view is that code words do not display non-cancelability the way not-at-issue content typically does; “someone cannot disavow commitment to the not-at-issue content of a sentence S that she utters merely by following up her utterance by asserting the negation of that content” (Khoo, 45). Consider,

The juxtaposition of sentences in (3.11) is supposed to strike the reader as contradictory while those in (3.12) should not.

According to a third view, code words are neither ambiguous nor multidimensional, but possess only nonracial meaning. What explains the phenomenon associated with terms like ‘inner city’ is the presence of an antecedent belief in the audience member that then allows them to infer the racial component. For example, an audience member may already believe

Pre-existing Belief (PB): The inner city is mostly populated by poor African Americans,

so that when hearing a politician proclaim (3.5), the audience member comes to infer

Racial Inference (RI): The food stamp program will primarily benefit poor African Americans.

A contrasting view that draws on the same simple semantics is what Khoo calls the association-driven theory of code words. On this view, there is “an association between ‘inner city’ (or the concept INNER CITY) and the concept AFRICAN AMERICAN (or maybe just RACE) which then primes racist beliefs and prejudices” (2017, 50).

Khoo’s account is simple and compelling, but we may still wonder whether it is too liberal. For instance, expressions like ‘thug,’ ‘illegal alien,’ ‘welfare queen,’ and ‘terrorist’ seem to behave like the terms Khoo identifies as code words, yet they are generally understood to be explicitly racial in nature. Patrick O’Donnell (2017) argues that the aforementioned expressions are not code words but racialized terms . O’Donnell characterizes the difference between racialized terms and code words in the following way:

• Racialized terms involve direct or predicative relations between a term and a racialized group whereas code words involve indirect inferential or associational relations, and
• Racialized terms elicit racial resentment by making salient race-specific interpretive options, whereas code words function by making salient race-neutral interpretive options (2017, 28).

O’Donnell agrees with Khoo that code words are picked out according to their contextual cognitive-pragmatic role, while claiming that this role differs between code words and racialized terms.

Determining whether dogwhistles or coded language count as merely contentious claims that must be tolerated or as hate speech subject to regulation has implications for broader discussions. The subtlety of coded language, for instance, calls its status as hate speech into question. The impact coded language has on an audience lacks the kind of immediacy often attributed to hate speech. Lawrence (1993), for example, notes that hate speech is often experienced by targets as a slap in the face. On the other hand, Mendelberg’s account suggests coded speech can incite racial resentment, and so it may be more aptly considered similar to propagandistic hate speech, discussed above. (For more on this point, see Jason Stanley (2015).) This would appear to get us closer to how hate speech is purported to function, namely, by inciting racial hatred. Whether it is close enough is of course open for debate.

That hate speech and pornography are discussed so frequently together in philosophy might, at first glance, seem surprising. But given the overlap made in the arguments made by anti-porn feminist about pornography and anti-racist theorists about racist hate speech, the two are now intimately linked—for better or for worse. (One important fact that led to this development is, of course, the ruling that pornography is protected by the US first amendment as speech [see Miller v. California (1973)].) According to anti-porn feminists, much of what is said of racist hate speech and the harms that befall its targets also applies, with the appropriate changes, to pornography and women—including, it’s worth emphasizing, women of color.

Many of the important initial moves in this literature were crafted by feminist legal scholar Catherine MacKinnon, along with Andrea Dworkin. One of MacKinnon’s most significant claims that has received sustained philosophical attention is the idea that (degrading and misogynist) pornography silences women. With some modifications, a similar claim may be applied to hate speech, namely, that hate speech silences its targets. However, as the literature has focused on the case of pornography and women, it’s worth examining these arguments in detail first.

This silencing argument begins with MacKinnon’s observation that there are “words that set conditions” for other speech acts’ successes or failures (1993, 63–68; see also Hornsby and Langton, 1998, 27). That is, there are some speech acts that fix the possibility of other speech acts. In other words, they make it possible for some persons to perform some speech acts, and make it impossible for others. This is most evident in formal settings, like a legislature, where the formal rules determine who may speak when, and in what manner. Pornography, the argument continues, does just this. It sets rules of behavior that, in effect, inhibit the speech of women. The result of which is that the speech acts of pornography—performed by those who produce and distribute it—create a climate that undermines women’s capacity to perform certain speech acts of their own. The speech of some (pornographers), therefore, curtails the speech of others (women).

In an influential account of the phenomena of silencing, Langton (1993) deploys speech act theory to examine the case of sexual refusal. According to the silencing argument, pornography depicts women as not (genuinely) refusing sexual advances with utterances of ‘no.’ Indeed, according to the myths perpetuated by pornography (among other social influences), a woman’s ‘no’ is not a refusal, but rather part of an elaborate sexual script. As a result, when a woman says ‘no’ in a non-pornographic context, intending to refuse a man’s sexual advances, she may find herself unable to be heard—that is, her words won’t have the force and effect she intends, and her hearer will not take her to be refusing. She may find herself silenced in this particularly horrendous way, unable to use the standard methods of refusing another’s sexual advances. The claim is that this occurs as a result of pornography silencing women’s refusals in the context of sex. It renders their words powerless.

In making this argument, Langton relies on the distinction between locutionary, illocutionary, and perlocutionary acts, and, correspondingly, locutionary, illocutionary, and perlocutionary silencing. A couple examples will explain these distinctions quickly:

When X says, ‘Shoot him!’ they are, we can see quite quickly, both saying something: ‘shoot him!’ and at the same time doing something: ordering the hearer to fire. In Austinian terms, we can say that X performs the locutionary act of making an utterance with a certain meaning, and at the same time is performing an illocutionary act of ordering the hearer to fire. In addition to these two things, the speaker is also, with their words, bringing about a number of effects, which Austin termed the ‘ perlocutionary act.’ In this case, leading to some unfortunate soul to be shot. (Adapted from Langton, 1993, 295, and Austin, 1962, 101)

To be clear, these three acts—locutionary, illocutionary, and perlocutionary—all occur as part of a single utterance and serve to bring out different aspects of any speech act. Austin (and many after him) paid particular attention to the illocutionary act of an utterance, as this, he said, corresponds to the force of an utterance. That is, what someone is doing with their words.

With this in mind, we can see that there are, in fact, many ways one could silence someone. You could literally gag or threaten someone to prevent them from speaking at all, which would achieve a type of locutionary silencing. Alternatively, you could let them say what they wish, recognize what act they are performing, but prevent them achieving their goals, and in doing so achieve a type of perlocutionary silencing. Finally, a third alternative occurs when one speaks and is prevented not only from achieving their intended effects, but also is prevented from performing the very action they intend to perform (Langton, 1993, 315). It is this third alternative—illocutionary silencing—that is said to occur when a man fails to even recognize a woman’s ‘no’ as a refusal, owing at least partially to the influence of pornography.

The specific mechanics of silencing—along with the underlying theory that best explains the phenomena—is subject to much dispute in the literature, and numerous accounts with different essential features have been offered (see Langton (1993); Langton and West (1999); Hornsby (1994); Hornsby and Langton (1998); Maitra (2009); McGowan (2004, 2009, 2014); Mikolla (2011; 2019), among others).

Laura Caponetto (2021) distinguishes four different types of silencing, demonstrating the breadth of the concept. First, there is essential silencing, which consists in the hearer’s failure to recognize the illocutionary point of a speech act. Second, there is authority silencing, where a hearer fails to acknowledge a speaker’s authority in a relevant domain. Third, there is sincerity silencing, when the speaker’s utterance is inaccurately taken as insincere. Fourth and finally, there is seriousness silencing, which consists in the hearer’s failure to acknowledge the speaker’s words as appropriately serious. Given these fine-grained ways of understanding silencing, a broad, comprehensive definition of silencing may be put as follows:

Illocutionary Silencing A speaker S putting forth a speech act A addressed to a hearer H is illocutionarily silenced iff (i) H fails to recognize the obtaining of some conditions for A ’s success; (ii) S ’s attempt at A -ing meets the conditions that H fails to recognize; (iii) normal input and output conditions are met; (iv) the recognition failure on H ’s part is systematic. (Caponetto, 2021)

In nearly all discussions of silencing, one common piece of contention concerns the notion of ‘uptake.’ On different understanding of what uptake consists in—ranging from the hearer’s recognition of a speaker’s intent, or the type of speech act being performed, up to the material consequences of a speech act—we are led to different conclusions about whether a speaker was silenced or not. Disagreement about the conditions of uptake poses difficulty, therefore, for many accounts of silencing. Drawing on these difficulties, Samia Hesni (2018) has argued that the standard account of silencing needs significant retooling, in part because the necessary distinction between illocutionary silencing and perlocutionary silencing cannot hold, as it relies on a problematic—and arguably conceptually untenable—notion of uptake (Hesni, 2018, 957). In an attempt to avoid these difficulties, we might prefer an account of silencing that uses a Gricean, rather than Austinian or Searlian framework, bypassing the need to fully differentiate the illocutionary from the perlocutionary (see Maitra, 2009).

While much of this literature is explicitly focused on pornography’s potential to silence women in the realm of sexual refusal, the notion that racist hate speech may similarly play a silencing function has also been put forward. For example, in a classic paper on the topic, Lawrence wrote that:

Racist speech … distorts the marketplace of ideas by muting or devaluing the speech of Blacks and other despised minorities. Regardless of intrinsic value, their words and ideas become less saleable in the marketplace of ideas. An idea that would be embraced by large numbers of individuals if it were offered by a white individual will be rejected or given less credence if its author belongs to a group demeaned and stigmatized by racist beliefs. (Lawrence, 1993, 78–79)

Using the above framework, we might therefore say that racist hate speech can itself constitute words that set conditions for the success of other speech acts, and in doing so undermines the speech of its targets—and in some cases, effectively silencing them. That is, racist hate speech may, in cultivating an environment hostile to the voices (and lives) of many, can lead to both locutionary and illocutionary silencing in a way that threatens their freedom of expression. And as is noted above in the section on the harms of hate speech, one long-term consequence of racist hate speech may be the target’s partial withdrawal from certain aspects of public life, including public discourse (West, 2012, 237). One further harmful effect of hate speech, then, is its targets’ silence.

Another way in which racist hate speech might silence is more immediate. Returning to the distinction between propagandistic hate speech on the one hand, and assaultive hate speech on the other, where the latter consists in hate speech uttered directly to its target, we may note that hate speech often serves as a type of attack. So, despite the common refrain of ‘more speech’ offered as advice, conceiving hate speech as a personal attack demonstrates how it, in fact, threatens the speech rights of its targets. As Lawrence puts it: “The visceral emotional response to personal attack precludes speech” (1993, 68). He goes on:

Attack produces an instinctive, defensive psychological reaction. Fear, rage, shock, and flight all interfere with any reasoned response. Words like ‘nigger,’ ‘kike,’ and ‘faggot’ produce physical symptoms that temporarily disable the victim, and perpetrators often use these words with the intention of producing this effect. (ibid.)

So, in both cultivating an environment in which the speech of marginalized groups is systematically devalued, or in serving as an immediate threat, hate speech can be said to silence its targets.

As is the case with pornography and silencing, the details of the mechanisms that sustain this type of silencing, along with what particular type of silencing racist hate speech results in, are subject to dispute. But, just like in the pornography debate, the plausibility of the silencing argument lies partly in how it reframes the overall question surrounding regulation. Rather than simply being a source of harm that merely infringes on the equality rights of its targets, if hate speech silences then it also infringes on the speech rights of its targets (West, 2012). As a result, it is not simply a question of balancing the speech rights of hate speakers against the wellbeing of their targets, but of competing claims to (substantive, and not just formal) freedom of expression. And given the importance that most liberal democracies place on freedom of expression, the challenge presented from hate speech is of central importance. For this reason, the silencing question is one of the most disputed aspects of hate speech and has generated great attention.

5. Counteracting Hate Speech

On the presumption that hate speech is harmful—both particularly harmful for the members of targeted groups, and also generally harmful to democracy—the natural question that follows is: what should we do about it? This question, however, rests on several sub-questions—some empirical, some conceptual—that themselves admit of rich dispute. For example, depending on how one conceives of the value and point of free expression—to better seek the truth, to respect autonomy, to ensure democracy, etc.—different answers to the hate speech question will seem more worthwhile than others. The same consideration applies to empirical matters as well, which are often difficult to properly assess in the absence of uncontroversial data. This means that relatively straightforward empirical questions—does genocidal speech pave the way to actual genocidal violence; do governments abuse hate speech regulation to punish political rivals and disfavored minorities; and others—rarely receive unanimous agreement. Despite these challenges, many theorists have addressed the question of how to counteract hate speech, and what form that response ought to take.

We can divide the most common answers into three broad categories: (1) legally restrict it in some form, as a justified exception to free expression; (2) permit it on the basis of free expression, holding that the harms of censorship outweigh the harms of hate speech; or (3) permit it, but take explicit measures to undo the harm of hate speech.

First, the case for banning hate speech. While this position may be anathema to many (especially in the United States), it is the consensus position of most democratic nations around the globe, as well as the explicit position of the United Nations. In the International Covenant on Civil and Political Rights , Article 20 requires a ban on hate speech—or, in their words, “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” ( Covenant on Civil and Political Rights ; see also, Article 4 of Convention on Racial Discrimination ). It is worth noting the position of the United Nations and other democracies on hate speech in part because of the contrast they serve for the dominant position in the United States, which recognizes some exceptions to the right to free expression (e.g., obscenity, libel, child sexual abuse material), but not generally on the basis of (racial) hate. Moreover, these exhortations to criminalize hate speech from the United Nations sit alongside commitments that maintain the importance of freedom of expression. For instance, Article 20, quoted above, is immediately preceded by Article 19, which affirms right to freedom of expression ( Covenant on Civil and Political Rights ).

The standard justification offered for restrictions on freedom of expression are based on the necessity of (a) respect of the rights or reputations of others; and (b) reasons of national security or of public order. In other words, a ban on hate speech may be thought to follow from the recognition of the harms it presents, both to the dignity of minority-members of a nation, as well as their physical safety. This position maintains, then, that restrictions on hate speech are a legitimate—and necessary—exception to an otherwise wider understanding of free expression. (For some theorists, it’s worth noting, hate speech is best not understood as the type of speech that free speech protections are meant to include—e.g., it serves no purpose in the pursuit of truth—and so is not in fact an exception to a free speech principle, but simply not included in a proper understanding of the scope of free speech.) This view naturally follows from the understanding that multiple values and rights must be balanced against each other. This is true both of countries that explicitly prohibit hate speech in order to protect minority rights, as well as in more ‘speech-friendly’ nations like the United States, where speech that is aimed at and likely to result in “imminent lawless action” may be legitimately restricted (see Brandenburg v. Ohio ).

However, most advocates for legally restricting hate speech believe that its proper scope is wider than what US law currently allows. Parekh, for example, rejects the position that hate speech may only be restricted when there is “imminent danger” of violence on the grounds that this understanding is too short-sighted. Moreover, he says,

no action occurs in a historical vacuum, and every action produces consequences not inherently but against a particular background. … Imminent danger occurs against, and is imminent because of, the prevailing social climate, and consistency demands that we concentrate our efforts not only on fighting the immediate source of danger, but also on changing the climate. (2012, 45–46)

On the understanding that the threat of hate speech is not exhausted by cases that concern “imminent danger,” we might then ground the prohibition of hate speech on the basis that this may reduce speech that causes harm to its targets, beyond those most immediately affected. Of course, there is also an important role to be played by non-legal means (e.g., moral and social pressure) in erasing or reducing these harms, so legal bans are best understood as part of a broader approach to the ills of hate speech. Furthermore, advocates of bans describe the expressive dimension of these laws as themselves providing a reason in favor of legislation (Waldron, 2014). The law, in this sense, serves as a public statement on a community’s values, and has educational and symbolic importance in itself (Parekh, 2012, 46). (For an overview of expressive theories of law, see Anderson and Pildes, 2000.) A ban on hate speech, therefore, is intended both to reduce harms directly, by decreasing instances of hate by the threat of law, as well as indirectly, by shaping the community’s moral norms through an expression of value.

Though many would agree that hate speech can have destructive effects, and that there is a moral imperative on the state to cultivate something like respectful relations between its members, objections to hate speech bans abound. In a wide-ranging response to these concerns, Parekh (2012) considers (and rejects) six common objections to the prohibition of hate speech. These six objections are: (1) that the harm of hate speech, while real, is relatively minor and a small price to pay given the interest of democratic nations; (2) that bans are not the answer, but rather “better ideas” and “more speech” are; (3) that a prohibition would have a dangerous “chilling effect” and that hate speech bans are a slippery slope to all sorts of unwanted restrictions; (4) that bans give the state too much power to judge the content of speech and decide what can or cannot be said, threatening state-neutrality, skewing political debate, and infringing on individual liberty; (5) that bans are an objectionable form of paternalism or moral authoritarianism, and is incompatible with the assumption that humans are responsible and autonomous individuals and that society is made up of free and equal citizens; and finally, (6) that bans are ineffective at changing attitudes and removing the hate from the hate speaker’s heart, with the result that bans have the effect of moving extremists underground, alienating them from wider society, and in doing so rendering us ignorant of their violent potential and impotent to engage in effective de-radicalization.

Each of these concerns merits more space than can be given to them here. Still, considering these objections to bans and the responses available, even briefly, is illustrative of the theoretical concerns bans on hate speech bring forth (see the list of references for fuller development of the relevant theoretical and empirical issues). Again following Parekh (2012, 47–54), we can approach these objections as follows.

In response to (1), the objection that the interests of a vibrant democracy outweigh the harms imposed by hate speech, it may be argued that hate speech does not embody the values of free speech but, in fact, undermines them by promoting irrational fears and hatred over reasoned arguments and public scrutiny. How powerful one takes this response to be depends directly on what one takes the value and justification of a right to free expression to be, which is of course a matter of dispute.

One response to (2), the common ‘more speech’ objection, is to note that the “marketplace of ideas” is not neutral, and likely requires some regulation (just like a marketplace of other goods). This is what a ban does, and so may be considered to be helping ensure ‘fair competition’ by countering prevailing prejudices, and encouraging greater participation from the members of communities targeted by hate speech. In other words, bans on hate speech may promote greater freedom of expression, by preventing the type of silencing considered above.

While acknowledging the worries of (3), namely that of a ‘chilling effect’ or a ‘slippery slope,’ represent an important objection, we may respond by noting that the problems these signal rest on the vague wording and inconsistent or biased application of hate speech bans. They are not, therefore, direct objections to hate speech bans as such. The remedy, therefore, lies in correcting these aspects of a ban, rather than abandoning it altogether. Moreover, the appeal to a ‘slippery slope’ may be inapt, as it implies that once one type of speech is prohibited, society cannot help but prohibit even more types. But we have no clear reason to suppose that this is the case, as existing bans on defamation have not led to bans on fair critical comment, for example.

The worries at the core of objection (4) represents a well-founded fear of the state, and so must be taken seriously. But, to defenders of hate speech bans, its understanding of the threat that hate speech bans pose to state-neutrality is nonetheless flawed. It fails to recognize that the state often already judges the content of speech (e.g., in banning commercial fraud, criminal solicitation, public displays of obscenity) and often elides neutrality when it speaks in favor of certain positions (e.g., the value of human dignity, equality, liberty). While any defense of hate speech bans must reckon with the possibility of further empowering the state, opponents ought not misrepresent the status quo, exaggerating the reality of state-neutrality.

Objections grounded on the threat of paternalism or moral authoritarianism, like (5), are similarly serious. However, one response on behalf of bans would be to point out how autonomy is always exercised under certain conditions and requires various external circumstances for its development and use. When appealing to personal autonomy, therefore, we should not idealize too greatly so that its real-world exercise is ignored. Rather, the threats that racism and bigotry pose for autonomy must also be acknowledged, alongside praise for our rational faculties.

One response to (6), that bans are ineffective at changing attitudes, is to admit the law cannot change attitudes (like hatred) directly and maintain that this is no knock against the law, and indeed is no problem for hate speech bans. The aim of these bans, in most cases, is not to prevent hatred but to prevent the harm that the public expression of hate can cause. The indirect effects of such a law, however, are an empirical matter, and it is unlikely they admit of a single, general answer, but are highly context-dependent. The subject of the practicability of hate speech bans deserves special attention, however. Opponents to bans may worry that the suppression of hate speech is likely to backfire, not only by failing to reduce hatred, but by increasing the sense of oppression and victimization that many bigots thrive on, leading to an escalation of racist violence (Baker, 2012, 77). Again, as an empirical hypothesis, it cannot be settled simply from the armchair. Still, a further response available on behalf of hate speech bans would be to question the legitimacy of this objection. If, by hypothesis, bans generated an increase in violence, it would still be the responsibility of the state to manage this violence effectively. The role of the state is not exhausted by implementing a ban, but must be seen alongside its enforcement.

This, however, leads to a slightly different objection. The opponent of bans may worry that the enforcement of laws against hate speech would divert the state’s energies away from more effective measures against hated, such as “those directed at changing material conditions in which racism festers, material conditions of both the purveyors and targets of hate” (Baker, 2012, 77). That is, the energies and resources that would be directed towards establishing and enforcing hate speech bans may be better spent on alternative policies. The guiding thought rests on two important points. First, that the intended ends of hate speech bans (e.g., reduction in the harms of hate speech that fall on those targeted by it, mitigation of the expansion of racist attitudes, lessening occurrences of violent hate crimes) may be more effectively achieved via different means, such as reducing inequality, improving social safety nets, political empowerment, and more. Second, though the state can do more than one thing at once, it is nonetheless working with limited resources, and efficiency is a value. That these alternative policy options may indeed be more effective is an unresolved empirical matter. And it remains an open question whether indirect approaches like this would fail to achieve the expressive ends of hate speech bans, which more directly communicate to those targeted by hate speech that they are valued members society.

Many of the claims made above, both on behalf of bans and in opposition, raise theoretical and empirical issues whose proper examination spans many articles and books. Suffice to say that the debate over bans is a highly contested one, and each position rests on an understanding of such issues as the value of free expression, the harm of hate speech, the likely effects a ban might have in a particular context, and so on. For instance, one who believes that free expression is valuable in part because of its role in democratic decision-making may maintain that specifically political speech deserves increased protections, and that some of what others regard as hate speech might fall into this category, escaping regulation. Alternatively, one may view the immunity for political speech as perhaps a red herring. On the speech act theoretic framework outlined above, some forms of racist hate speech are functionally identical to a ‘Whites Only’ sign hanging in a public restaurant (McGowan 2012; McGowan and Maitra 2009). The latter expresses a political opinion in the same way as the former expression does, but it is also regarded as unlawful racially discriminatory. The same considerations—legal sanction—might therefore apply to the verbal utterance as the written sign, and the appeal to the political content of the message is irrelevant.

The preceding summarizes the two main positions in the debate over hate speech: on the one hand, there are those who defend prohibitions, and on the other, those who maintain hate speech as protected under a wide conception of freedom of expression, and so oppose laws that aim at its prohibition. A third position aims to avoid some of the impasses that haunt this debate. On this view, this impasse is the result of a failure by those who oppose hate speech bans (and, as a result, tend to favor ‘more speech’) to acknowledge the strength of one of the main arguments from those who advocate for bans, namely, that hate speech is a type of assault that often renders one unable to respond. This, along with a failure of those who defend bans from considering non-punitive options for mitigating the harms of hate speech, leads to stalemate. On this understanding, both sides of the debate over bans see the only alternatives as either increased governmental powers to punish, or absent that, ‘unsupported’ counterspeech on the part of those targeted by hate speech (see Gelber, 2012a; 2012b).

By contrast, the “supported counterspeech” alternative aims to recognize the specific harms inflicted by hate speech and provide state support to empower those who are harmed. Gelber, an advocate for this alternative, places it within the capabilities approach originally developed by Amartya Sen (1992) and Martha Nussbaum (2000; 2003). “If hate-speech acts harm their targets’ capacity to develop human capabilities,” Gelber says, then “this is what needs to be remedied” (2012a, 54). The impetus for this approach therefore begins from the idea that we must think about remedies to hate speech beyond restrictions and punishment, as neither of these approaches achieve the goal of empowering the target of hate speech. (This is especially true of the latter, punishment, which also carries with it all the negative consequences that anti-carceral advocates have noted.) The supported counterspeech policy is therefore not focused on hate speakers, but rather the targets of hate speech more directly.

The core of this approach lies in an enlarged conception of counterspeech as well as a commitment by the state to provide the material conditions necessary for this speech. In practice, this would mean that the state is committed to responding to an incident of hate speech by empowering its targets to engage in more speech, after the fact. The specific forms this support may take will depend on the conditions of different contexts, along with calibration for the specifics of the incident it is meant as a response to, as well as the needs of the particular communities. Still, to give a sense of what this may entail, examples of the sort of supported counterspeech that this position recommends include things such as: assistance in the production of a community newsletters, op-eds, radio broadcasts, or television advertisements; the development of antiracism awareness programs, or anti-hate-speech workshops; subsidizing community-led art projects; etc.

In each case, the aim of supported counterspeech is to empower the targets of hate speech, and to increase their capacity for engaging in counterspeech. The goal is thus to undo (as much as one can) the specific harms of hate speech, while avoiding the pitfalls of “private remedies” (as critiqued by Matsuda, 1993). While supported counterspeech could be taken as either an alternative to bans or a supplement to them, it remains an under-explored avenue for considering responses tailored to the particular harms of hate speech.

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• Swanson, Eric, 2015, “ Slurs and Ideology ,” unpublished manuscript
• American Library Association, “ Hate Speech and Hate Crime ”
• European Commission against Hate Speech and Violence
• UN Strategy and Plan of Action on Hate Speech
• UNESCO, “ Countering Online Hate Speech ”
• Rights for Peace, “ Hate Speech ”
• Anti-Defamation Leage, “ Resources for Responding to Hate Speech in the Community ”
• Library of Parliament Research Publication, “ Hate Speech and Freedom of Expression: Legal Boundaries in Canada ”

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hate speech

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• Stanford Encyclopedia of Philosophy - Hate Speech
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hate speech , speech or expression that denigrates a person or persons on the basis of (alleged) membership in a social group identified by attributes such as race, ethnicity , gender, sexual orientation , religion, age, physical or mental disability, and others.

Typical hate speech involves epithets and slurs, statements that promote malicious stereotypes , and speech intended to incite hatred or violence against a group. Hate speech can also include nonverbal depictions and symbols. For example, the Nazi swastika , the Confederate Battle Flag (of the Confederate States of America), and pornography have all been considered hate speech by a variety of people and groups. Critics of hate speech argue not only that it causes psychological harm to its victims, and physical harm when it incites violence, but also that it undermines the social equality of its victims. That is particularly true, they claim, because the social groups that are commonly the targets of hate speech have historically suffered from social marginalization and oppression. Hate speech therefore poses a challenge for modern liberal societies, which are committed to both freedom of expression and social equality. Thus, there is an ongoing debate in those societies over whether and how hate speech should be regulated or censored.

The traditional liberal position regarding hate speech is to permit it under the auspices of freedom of expression. Although those who take that position acknowledge the odious nature of the messages of hate speech, they maintain that state censorship is a cure that causes more harm than the disease of bigoted expression. They fear that a principle of censorship will lead to the suppression of other unpopular but nevertheless legitimate expression, perhaps even of the criticism of government, which is vital to the political health of liberal democracy . They argue that the best way to counter hate speech is to demonstrate its falsity in the open marketplace of ideas.

Proponents of censorship typically argue that the traditional liberal position wrongly assumes the social equality of persons and groups in society and neglects the fact that there are marginalized groups who are especially vulnerable to the evils of hate speech. Hate speech, they argue, is not merely the expression of ideas, but rather it is an effective means of socially subordinating its victims. When aimed at historically oppressed minorities, hate speech is not merely insulting but also perpetuates their oppression by causing the victims, the perpetrators, and society at large to internalize the hateful messages and act accordingly. Victims of hate speech cannot enter the “open marketplace of ideas” as equal participants to defend themselves, because hate speech, in conjunction with a broader system of inequality and unjust discrimination that burdens the victims, effectively silences them.

The court system of the United States has, on the basis of the First Amendment and its principle of freedom of speech , generally ruled against attempts to censor hate speech. Other liberal democracies such as France, Germany , Canada , and New Zealand have laws designed to curtail hate speech. Such laws have proliferated since World War II .

Defining Hate Speech

Andy Sellars

There is no shortage of opinions about what should be done about hate speech, but if there is one point of agreement, it is that the topic is ripe for rigorous study. But just what is hate speech, and how will we know it when we see it online? For all of the extensive literature about the causes, harms, and responses to hate speech, few scholars have endeavored to systematically define the term. Where other areas of content analysis have developed rich methodologies to account for influences like context or bias, the present scholarship around hate speech rarely extends beyond identification of particular words or phrases that are likely to cause harm targeted toward immutable characteristics. 

This essay seeks to review some of the various attempts to define hate speech, and pull from them a series of traits that can be used to frame hate speech with a higher degree of confidence. In so doing, it explores the tensions between hate speech and principles of freedom of expression, both in the abstract and as they are captured in existing definitions. It also analyzes historical attempts to define the term in the United States, from the brief period of time when the United States punished hate speech directly. From this analysis, eight traits are surfaced that can be used for the development of a confidence scoring system to help ascertain whether a particular expression should be considered one of hate speech or not.

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Harmful speech online.

The Berkman Klein Center for Internet & Society is in the third year of a research, policy analysis, and network building effort devoted to the study of harmful speech, in close…

Combating Hate Speech

What is hate speech and why is it a problem.

Hate speech is a complex and multidimensional phenomenon that has far-reaching and dangerous consequences for human rights, rule of law in democratic societies. Preventing and combating online hate speech poses specific challenges. The persistence and impact have been documented by the monitoring bodies of the Council of Europe and other international agencies.

Hate Speech not only affects the dignity and human rights of the individual directly targeted , but also of persons belonging to the same minority or group as those directly targeted. Hate speech leads to dangerous divisions in society as a whole, affects the participation and inclusion of all those targeted by it and threatens democracy. The targets of hate speech become increasingly excluded from society, forced out of the public debate and silenced. History shows that hate speech has also been intentionally used to mobilise groups and societies against each other in order to provoke violent escalation, hate crime, war and genocide.

• In recent years, hate speech has increasingly been spread through the internet. Preventing and combating online hate speech poses specific challenges, as it can be disseminated as never before across the world in a matter of seconds.
• The persistence and worrying increase of hate speech, especially online, and its impact on the enjoyment of human rights and democracy in Europe have been documented by the monitoring bodies of the Council of Europe, the European Union Agency for Fundamental Rights (FRA), various other intergovernmental organisations, civil society organisations, internet intermediaries, and other bodies.
• In its recent country monitoring and annual reports, the European Commission against Racism and Intolerance (ECRI) describes, based on detailed statistics and studies, the persistence and increase of ultra-nationalistic, xenophobic, racist, and LGBTI-phobic hate speech in various member States.
• To avoid such dangerous escalation and rather establish and maintain inclusive societies, it is important that member States take effective and sustainable measures to prevent and combat hate speech.

Council of Europe’s work on hate speech

Recommendation on Combating Hate Speech

Committees working on hate speech

 Contact us

Defining Hate Speech

Berkman Klein Center Research Publication No. 2016-20

Boston Univ. School of Law, Public Law Research Paper No. 16-48

33 Pages Posted: 10 Dec 2016 Last revised: 10 Jan 2017

Andrew Sellars

Boston University School of Law; Berkman Klein Center for Internet & Society

Date Written: December 1, 2016

There is no shortage of opinions about what should be done about hate speech, but if there is one point of agreement, it is that the topic is ripe for rigorous study. But just what is hate speech, and how will we know it when we see it online? For all of the extensive literature about the causes, harms, and responses to hate speech, few scholars have endeavored to systematically define the term. Where other areas of content analysis have developed rich methodologies to account for influences like context or bias, the present scholarship around hate speech rarely extends beyond identification of particular words or phrases that are likely to cause harm targeted toward immutable characteristics. This essay seeks to review some of the various attempts to define hate speech, and pull from them a series of traits that can be used to frame hate speech with a higher degree of confidence. In so doing, it explores the tensions between hate speech and principles of freedom of expression, both in the abstract and as they are captured in existing definitions. It also analyzes historical attempts to define the term in the United States, from the brief period of time when the United States punished hate speech directly. From this analysis, eight traits are surfaced that can be used for the development of a confidence scoring system to help ascertain whether a particular expression should be considered one of hate speech or not.

Suggested Citation: Suggested Citation

Andrew Sellars (Contact Author)

Boston university school of law ( email ).

765 Commonwealth Avenue Boston, MA 02215 United States

Berkman Klein Center for Internet & Society ( email )

Harvard Law School 23 Everett, 2nd Floor Cambridge, MA 02138 United States

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Understanding hate speech

Hate speech versus freedom of speech

The need to preserve freedom of expression from censorship by States or private corporations’ is often invoked to counter efforts to regulate hateful expression, in particular online.

Freedom of opinion and expression are, indeed, cornerstones of human rights and pillars of free and democratic societies. These freedoms support other fundamental rights, such as to peaceful assembly, to participate in public affairs, and to freedom of religion. It is undeniable that digital media, including social media, have bolstered the right to seek, receive and impart information and ideas. Therefore, legislative efforts to regulate free expression unsurprisingly raise concerns that attempts to curb hate speech may silence dissent and opposition.

To counter hate speech, the United Nations supports more positive speech and upholds respect for freedom of expression as the norm. Therefore, any restrictions must be an exception and seek to prevent harm and ensure equality or the public participation of all. Alongside the relevant international human rights law provisions, the UN Rabat Plan of Action provides key guidance to States on the difference between freedom of expression and “incitement” (to discrimination, hostility and violence), which is prohibited under criminal law. Determining when the potential of harm is high enough to justify prohibiting speech is still the subject of much debate. But States can also use alternative tools – such as education and promoting counter-messages – to address the whole spectrum of hateful expression, both on and offline.

“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous, particularly incitement to discrimination, hostility and violence, which is prohibited under international law.”

— United Nations Secretary-General António Guterres, May 2019

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Roseanne's tweet.

NFL players kneeling.

The President blocking people on Twitter.

These stories are all about the same thing: what is free speech? Who gets to decide? And what happens when one person's speech offends another?

As Sam observes in this episode, those questions are part of a national conversation that sounds very different on the left and on the right. Nadine Strossen's new book attempts to dispel misunderstandings on both sides. It's called Hate: Why We Should Resist It With Free Speech, Not Censorship. Strossen spoke to Sam about several recent news stories with free speech entanglements, and laid out her argument for why the best response to hate speech is more speech.

--Producer Brent Baughman

Interview Highlights

Former ACLU President Nadine Strossen

On the central argument of her book

The most effective way to counter the potential negative effects of hate speech — which conveys discriminatory or hateful views on the basis of race, religion, gender, and so forth — is not through censorship, but rather through more speech. And that censorship of hate speech, no matter how well-intended, has been shown around the world and throughout history to do more harm than good in actually promoting equality, dignity, inclusivity, diversity, and societal harmony.

On hateful speech and why it's legal (most of the time)

You very frequently get public officials and even lawyers saying "hate speech is not free speech." But that is not correct! The Supreme Court never has created a category of speech that is defined by its hateful conduct, labeled it hate speech, and said that that is categorically excluded by the first amendment. Speech cannot be punished just because of its hateful con tent . But when you get beyond content and look at context, speech with a hateful message may be punished, if in a particular context it directly causes certain specific, imminent, serious harm — such as a genuine threat that means to instill a reasonable fear on the part of the person at whom the threat is targeted that he or she is going be subject to violence.

On feeling physically threatened by hateful speech

Not only threatened. You can feel emotionally disturbed. You can feel psychic trauma, which can have physiological manifestations. You can feel silenced. These are all real harms that may be suffered by people who are subject to hate speech that is not punishable.

[Because] even though we acknowledge those harms, loosening up the constraints on government to allow it to punish speech because of those less tangible, more speculative, more indirect harms — that censorial power will do more harm that good, precisely because the pendulum can swing. Not that shockingly long ago it was left-wing speakers, communists and socialist, who were kept off campuses. And civil rights activists were kept off many campuses, because their ideas were certainly hated, certainly seen as dangerous and insulting. And today, there are serious government officials who are saying that Black Lives Matter is a hate group.

Students gather in response to the election of Donald Trump at the University of California Los Angeles on November 10, 2016. College campuses have become a focal point in the free speech debate. Frederic J. Brown/AFP/Getty Images hide caption

Students gather in response to the election of Donald Trump at the University of California Los Angeles on November 10, 2016. College campuses have become a focal point in the free speech debate.

On the right of colleges to refuse to allow a controversial speaker due to security costs

First of all, nobody has a right necessarily to speak on a particular campus. Campuses can set viewpoint-neutral time-, place-, and manner-rules to allocate this scarce resource of the opportunity to speak on campus. Just the way in the city of New York, you can't automatically get a parade permit — it's first-come, first-served.

And make no mistake about it, in an ACLU case — I'm proud to say, quite a few years ago — the Supreme Court held that imposing higher security costs on the speaker because the viewpoint is seen to be more controversial and therefore it's more likely to generate protests and therefore security costs — that that is just an indirect way of discriminating against the viewpoint. And you cannot do that.

On the ACLU's public image perception becoming more aligned with the left under President Trump

That's always been a misconception. People tend not to look at the underlying principle, but instead they look at whose ox is gored in the underlying case. And the reason that we're attacking specific policies of Trump is that those specific policies violate civil liberties principles. We did the same with Barack Obama, with Bill Clinton. The ACLU will issue criticism or praise on an issue-by-issue basis. Trump, no doubt, as a record number of issues on which he is earning criticism. But I don't think there is a single official about whom we cannot issue at least some praise and some criticism.

On the ACLU defending the speech rights of groups like the KKK and NAMBLA, and whether it was ever too much for her to stomach

I think the one that to me was the most vile was the North American Man/Boy Love Association. That to me — they are advocating what I see as a form of child abuse. But I do agree with the Supreme Court that advocacy of illegal conduct, including child abuse, is constitutionally protected. And people may be surprised to hear that. [The Supreme Court] drew a distinction between advocacy of illegal conduct versus intentional incitement of illegal conduct.

Because if we say, 'Oh, well, mere advocacy as opposed to intentional incitement will be enough for this speech that's particularly distasteful to me' — well once you make one exception, you can't hold the line. I know that if we loosened the standard for what was deemed to be advocacy that might be dangerous, Black Lives Matter would probably be the first thing that's endangered. So I think you have to look at the abstract principle and just tell yourself: that is what I'm defending.

On whether the NFL's new rule against player protests violates their free speech

Most people don't know and are somewhat disappointed to find out the first amendment — with its free speech guarantee — only applies to the government. Any private-sector entity, including such a powerful one as the NFL, is not constrained by constitutional free speech guarantees. That said, one can make an argument that they should voluntarily choose to protect such a quintessential patriotic value as freedom of speech.

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Hate Speech on Social Media: Global Comparisons

• Hate speech online has been linked to a global increase in violence toward minorities, including mass shootings, lynchings, and ethnic cleansing.
• Policies used to curb hate speech risk limiting free speech and are inconsistently enforced.
• Countries such as the United States grant social media companies broad powers in managing their content and enforcing hate speech rules. Others, including Germany, can force companies to remove posts within certain time periods.

Introduction

A mounting number of attacks on immigrants and other minorities has raised new concerns about the connection between inflammatory speech online and violent acts, as well as the role of corporations and the state in policing speech. Analysts say trends in hate crimes around the world echo changes in the political climate, and that social media can magnify discord. At their most extreme, rumors and invective disseminated online have contributed to violence ranging from lynchings to ethnic cleansing.

The response has been uneven, and the task of deciding what to censor, and how, has largely fallen to the handful of corporations that control the platforms on which much of the world now communicates. But these companies are constrained by domestic laws. In liberal democracies, these laws can serve to defuse discrimination and head off violence against minorities. But such laws can also be used to suppress minorities and dissidents.

How widespread is the problem?

• Radicalization and Extremism
• Social Media
• Race and Ethnicity
• Censorship and Freedom of Expression
• Digital Policy

Incidents have been reported on nearly every continent. Much of the world now communicates on social media, with nearly a third of the world’s population active on Facebook alone. As more and more people have moved online, experts say, individuals inclined toward racism, misogyny, or homophobia have found niches that can reinforce their views and goad them to violence. Social media platforms also offer violent actors the opportunity to publicize their acts.

Social scientists and others have observed how social media posts, and other online speech, can inspire acts of violence:

• In Germany a correlation was found between anti-refugee Facebook posts by the far-right Alternative for Germany party and attacks on refugees. Scholars Karsten Muller and Carlo Schwarz observed that upticks in attacks, such as arson and assault, followed spikes in hate-mongering posts .
• In the United States, perpetrators of recent white supremacist attacks have circulated among racist communities online, and also embraced social media to publicize their acts. Prosecutors said the Charleston church shooter , who killed nine black clergy and worshippers in June 2015, engaged in a “ self-learning process ” online that led him to believe that the goal of white supremacy required violent action.
• The 2018 Pittsburgh synagogue shooter was a participant in the social media network Gab , whose lax rules have attracted extremists banned by larger platforms. There, he espoused the conspiracy that Jews sought to bring immigrants into the United States, and render whites a minority, before killing eleven worshippers at a refugee-themed Shabbat service. This “great replacement” trope, which was heard at the white supremacist rally in Charlottesville, Virginia, a year prior and originates with the French far right , expresses demographic anxieties about nonwhite immigration and birth rates.
• The great replacement trope was in turn espoused by the perpetrator of the 2019 New Zealand mosque shootings, who killed forty-nine Muslims at prayer and sought to broadcast the attack on YouTube.
• In Myanmar, military leaders and Buddhist nationalists used social media to slur and demonize the Rohingya Muslim minority ahead of and during a campaign of ethnic cleansing . Though Rohingya comprised perhaps 2 percent of the population, ethnonationalists claimed that Rohingya would soon supplant the Buddhist majority. The UN fact-finding mission said, “Facebook has been a useful instrument for those seeking to spread hate, in a context where, for most users, Facebook is the Internet [PDF].”
• In India, lynch mobs and other types of communal violence, in many cases originating with rumors on WhatsApp groups , have been on the rise since the Hindu-nationalist Bharatiya Janata Party (BJP) came to power in 2014.
• Sri Lanka has similarly seen vigilantism inspired by rumors spread online, targeting the Tamil Muslim minority. During a spate of violence in March 2018, the government blocked access to Facebook and WhatsApp, as well as the messaging app Viber, for a week, saying that Facebook had not been sufficiently responsive during the emergency.

Does social media catalyze hate crimes?

The same technology that allows social media to galvanize democracy activists can be used by hate groups seeking to organize and recruit. It also allows fringe sites, including peddlers of conspiracies, to reach audiences far broader than their core readership. Online platforms’ business models depend on maximizing reading or viewing times. Since Facebook and similar platforms make their money by enabling advertisers to target audiences with extreme precision, it is in their interests to let people find the communities where they will spend the most time.

Users’ experiences online are mediated by algorithms designed to maximize their engagement, which often inadvertently promote extreme content. Some web watchdog groups say YouTube’s autoplay function, in which the player, at the end of one video, tees up a related one, can be especially pernicious. The algorithm drives people to videos that promote conspiracy theories or are otherwise “ divisive, misleading or false ,” according to a Wall Street Journal investigative report. “YouTube may be one of the most powerful radicalizing instruments of the 21st century,” writes sociologist Zeynep Tufekci .

YouTube said in June 2019 that changes to its recommendation algorithm made in January had halved views of videos deemed “borderline content” for spreading misinformation. At that time, the company also announced that it would remove neo-Nazi and white supremacist videos from its site. Yet the platform faced criticism that its efforts to curb hate speech do not go far enough. For instance, critics note that rather than removing videos that provoked homophobic harassment of a journalist, YouTube instead cut off the offending user from sharing in advertising revenue.  

How do platforms enforce their rules?

Social media platforms rely on a combination of artificial intelligence, user reporting, and staff known as content moderators to enforce their rules regarding appropriate content. Moderators, however, are burdened by the sheer volume of content and the trauma that comes from sifting through disturbing posts , and social media companies don’t evenly devote resources across the many markets they serve.

A ProPublica investigation found that Facebook’s rules are opaque to users and inconsistently applied by its thousands of contractors charged with content moderation. (Facebook says there are fifteen thousand.) In many countries and disputed territories, such as the Palestinian territories, Kashmir, and Crimea, activists and journalists have found themselves censored , as Facebook has sought to maintain access to national markets or to insulate itself from legal liability. “The company’s hate-speech rules tend to favor elites and governments over grassroots activists and racial minorities,” ProPublica found.

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Addressing the challenges of navigating varying legal systems and standards around the world—and facing investigations by several governments—Facebook CEO Mark Zuckerberg called for global regulations to establish baseline content, electoral integrity, privacy, and data standards.

Problems also arise when platforms’ artificial intelligence is poorly adapted to local languages and companies have invested little in staff fluent in them. This was particularly acute in Myanmar, where, Reuters reported, Facebook employed just two Burmese speakers as of early 2015. After a series of anti-Muslim violence began in 2012, experts warned of the fertile environment ultranationalist Buddhist monks found on Facebook for disseminating hate speech to an audience newly connected to the internet after decades under a closed autocratic system.

Facebook admitted it had done too little after seven hundred thousand Rohingya were driven to Bangladesh and a UN human rights panel singled out the company in a report saying Myanmar’s security forces should be investigated for genocidal intent. In August 2018, it banned military officials from the platform and pledged to increase the number of moderators fluent in the local language.

How do countries regulate hate speech online?

In many ways, the debates confronting courts, legislatures, and publics about how to reconcile the competing values of free expression and nondiscrimination have been around for a century or longer. Democracies have varied in their philosophical approaches to these questions, as rapidly changing communications technologies have raised technical challenges of monitoring and responding to incitement and dangerous disinformation.

United States. Social media platforms have broad latitude [PDF], each establishing its own standards for content and methods of enforcement. Their broad discretion stems from the Communications Decency Act . The 1996 law exempts tech platforms from liability for actionable speech by their users. Magazines and television networks, for example, can be sued for publishing defamatory information they know to be false; social media platforms cannot be found similarly liable for content they host.

Recent congressional hearings have highlighted the chasm between Democrats and Republicans on the issue. House Judiciary Committee Chairman Jerry Nadler convened a hearing in the aftermath of the New Zealand attack, saying the internet has aided white nationalism’s international proliferation. “The President’s rhetoric fans the flames with language that—whether intentional or not—may motivate and embolden white supremacist movements,” he said, a charge Republicans on the panel disputed. The Senate Judiciary Committee, led by Ted Cruz, held a nearly simultaneous hearing in which he alleged that major social media companies’ rules disproportionately censor conservative speech , threatening the platforms with federal regulation. Democrats on that panel said Republicans seek to weaken policies  dealing with hate speech and disinformation that instead ought to be strengthened.

European Union. The bloc’s twenty-eight members all legislate the issue of hate speech on social media differently, but they adhere to some common principles. Unlike the United States, it is not only speech that directly incites violence that comes under scrutiny; so too does speech that incites hatred or denies or minimizes genocide and crimes against humanity. Backlash against the millions of predominantly Muslim migrants and refugees who have arrived in Europe in recent years has made this a particularly salient issue, as has an uptick in anti-Semitic incidents in countries including France, Germany, and the United Kingdom.

In a bid to preempt bloc-wide legislation, major tech companies agreed to a code of conduct with the European Union in which they pledged to review posts flagged by users and take down those that violate EU standards within twenty-four hours. In a February 2019 review, the European Commission found that social media platforms were meeting this requirement in three-quarters of cases .

The Nazi legacy has made Germany especially sensitive to hate speech. A 2018 law requires large social media platforms to take down posts that are “manifestly illegal” under criteria set out in German law within twenty-four hours. Human Rights Watch raised concerns that the threat of hefty fines would encourage the social media platforms to be “overzealous censors.”

New regulations under consideration by the bloc’s executive arm would extend a model similar to Germany’s across the EU, with the intent of “preventing the dissemination of terrorist content online .” Civil libertarians have warned against the measure for its “ vague and broad ” definitions of prohibited content, as well as for making private corporations, rather than public authorities, the arbiters of censorship.

India. Under new social media rules, the government can order platforms to take down posts within twenty-four hours based on a wide range of offenses, as well as to obtain the identity of the user. As social media platforms have made efforts to stanch the sort of speech that has led to vigilante violence, lawmakers from the ruling BJP have accused them of censoring content in a politically discriminatory manner, disproportionately suspending right-wing accounts, and thus undermining Indian democracy . Critics of the BJP accuse it of deflecting blame from party elites to the platforms hosting them. As of April 2018, the New Delhi–based Association for Democratic Reforms had identified fifty-eight lawmakers facing hate speech cases, including twenty-seven from the ruling BJP. The opposition has expressed unease with potential government intrusions into privacy.

Japan. Hate speech has become a subject of legislation and jurisprudence in Japan in the past decade [PDF], as anti-racism activists have challenged ultranationalist agitation against ethnic Koreans. This attention to the issue attracted a rebuke from the UN Committee on the Elimination of Racial Discrimination in 2014 and inspired a national ban on hate speech in 2016, with the government adopting a model similar to Europe’s. Rather than specify criminal penalties, however, it delegates to municipal governments the responsibility “to eliminate unjust discriminatory words and deeds against People from Outside Japan.” A handful of recent cases concerning ethnic Koreans could pose a test: in one, the Osaka government ordered a website containing videos deemed hateful taken down , and in Kanagawa and Okinawa Prefectures courts have fined individuals convicted of defaming ethnic Koreans in anonymous online posts.

What are the prospects for international prosecution?

Cases of genocide and crimes against humanity could be the next frontier of social media jurisprudence, drawing on precedents set in Nuremberg and Rwanda. The Nuremberg trials in post-Nazi Germany convicted the publisher of the newspaper Der Sturmer ; the 1948 Genocide Convention subsequently included “ direct and public incitement to commit genocide ” as a crime. During the UN International Criminal Tribunal for Rwanda, two media executives were convicted on those grounds. As prosecutors look ahead to potential genocide and war crimes tribunals for cases such as Myanmar, social media users with mass followings could be found similarly criminally liable.

Recommended Resources

Andrew Sellars sorts through attempts to define hate speech .

Columbia University compiles relevant case law from around the world.

The U.S. Holocaust Memorial Museum lays out the legal history of incitement to genocide.

Kate Klonick describes how private platforms have come to govern public speech .

Timothy McLaughlin chronicles Facebook’s role in atrocities against Rohingya in Myanmar.

Adrian Chen reports on the psychological toll of content moderation on contract workers.

Tarleton Gillespie discusses the politics of content moderation .

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Hate Speech Laws: The Best Arguments for Them—and Against Them

Hate speech is a problem, but hate speech laws are not a solution..

What is hate speech, and why is it so controversial?

Hate speech is tricky to define (more on that later), but a workable definition is:

“ Any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons on the basis of race, religion, skin color[,] sexual identity, gender identity, ethnicity, disability, or national origin.”

Hate speech can have severely negative impacts on its targets, which is one reason people on every side of this issue condemn it.

Yet whether or not hate speech should be prohibited by force of law is less clear.

Those who would ban hate speech cite the impact it has on victims. They also contend that a culture of hate speech leads to criminal violence, even genocide.

Most defenders of free speech condemn hate speech but defend the right to utter it. They contend that legislating hate speech doesn’t work, and often backfires. They also argue that we should distinguish vices from crimes , and that vices are better handled through non-governmental action.

Vices vs Crimes

What is a vice, and how is it different from a crime? This distinction is at the heart of why so many free speech supporters consider it unjust for the government to imprison, fine, or censor someone over hateful speech.

As the great abolitionist lawyer Lysander Spooner wrote in his essay Vices Are Not Crimes , “Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another.”

A vice also may cause distress to those around us, but doing something someone dislikes is not in and of itself a rights violation.

Spooner argued that only acts that violate someone else’s rights—that is, their person or property—should be considered crimes.

Lying around the house all day in a drunken stupor is a vice. It’s obnoxious, and it imposes social costs on your friends and family. But it doesn’t violate anyone’s rights. If your friends and family get tired of you, they can simply exercise their own right to stop spending time with you.

Burning down your neighbor’s house, by contrast, is a crime. It violates your neighbor’s property rights. Those who commit crimes are subject to the use of force (including governmental force) so as to defend and restore victims.

Hate speech is a vice. Like daily drunkenness, it’s bad behavior that can be distressful to those who associate with you.

But vices are not crimes. The relevant question is not, “is X vice good or bad?” The relevant question is, “are we justified in sending people with guns to threaten and imprison people who do X vice?”

The answer is an emphatic no . The use of government force (such as the state sending police to haul someone off to jail) is only justified in response to rights violations (such as murder or arson). Imprisoning someone for using a racial slur is morally indefensible; it’s a solution that’s far worse than the problem it tries to solve.

The Right to Freedom of Speech

How do we distinguish crimes from non-crimes (including both vices and virtues)? We spoke above about rights , but what exactly does that mean?

According to classical liberalism—the political philosophy underpinning the US Declaration of Independence and Bill of Rights—the foundational right from which all other rights spring is the right to ownership. The right to ownership isn’t merely the right to own land. Instead, this right is composed of two elements:

1) Self-ownership. As a human being, you have an inalienable right to your own person. Anyone who physically assaults you, holds you captive, or coerces you violates that right.

2) Property in goods. You also have the right to own external goods. For example, if you make a printing press, you have a right to use that press as you see fit. Now maybe you didn’t make the press yourself, but bought it. In that case you still have an inalienable right to it, because you traded the products of your body (the goods or services you produced) for money which you used to purchase the printing press.

The great philosopher John Locke puts it succinctly in The Second Treatise of Government : “every Man has a Property [that is, ownership] in his own Person . This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” (emphasis in original).

In this conception, free speech flows inevitably from the concept of ownership rights. You have absolute ownership over your own vocal cords, therefore you can speak whatever words you wish. You can also acquire ownership of a printing press (or a website) and use those tools however you wish.

In this sense, the right to say words that most people consider vile or blasphemous—including the right to publish those words using tools you own, or contract with others who own those tools—cannot morally be curtailed. The right over your own body is fundamental to what it means to be a human.

By contrast, while some people are (justifiably) offended by racial and sexual slurs, there is not and cannot be a right to not be offended.

On a moral level, you cannot be held responsible for someone else’s thoughts and feelings. The assumption of that positive right (a positive right is one that imposes burdens on other people’s behaviors) would curtail your own rights.

On a practical level, laws based on a supposed positive right to not be offended are a disaster. The reason is that offense is inherently subjective; speech that offends one person can make another simply shrug (and vice versa).

The United Kingdom provides a chilling example of what happens when the law authorizes throwing people in jail for causing offense. The Hampshire government recently passed a law banning , “malicious communication,” that is, communication sent, “with the intent to cause the recipient distress or anxiety.” The criteria for determining what constitutes malicious communication are inherently subjective: they depend on the communication’s “potential impact” and (most concerning) “how the other party might interpret your behavior.”

What was the result of this law? People started being arrested for making memes on social media. One man made a meme of the trans rights flag that’s shaped like a Swastika. Police officers showed up to take him into custody. As they explained to the meme-maker, “Someone has been caused anxiety based on your social media post. And that is why you’re getting arrested.”

Beyond being a gross violation of civil liberties, the idea that causing anxiety should be illegal is hardly a good legal standard. One wonders if the victim of the arrest could have the officers themselves arrested, on the grounds that throwing him in jail caused him anxiety.

The First Amendment

Speech is not a crime; that is, even hateful speech doesn’t violate anyone else’s rights. By contrast, throwing someone in prison for speech would be a crime, because it unjustly curtails their right over their own person and property.

The First Amendment is grounded in this classical liberal idea of ownership rights. As George Stephens notes in an article with the classical liberal John Locke Foundation, Locke’s ideas of ownership rights (what Locke called property rights) were foundational to the United States’ founding documents.

When the Amendment was written, governments already had a long history of imprisoning citizens for speech they didn’t approve of. As Jacob Mchangama documents in his book Free Speech: A History from Socrates to Social Media , England’s King Henry VIII outlawed books and other writings that insulted the royal person or made claims that Henry VIII determined to be false.

By guaranteeing the rights to speech and assembly and the press, the Founding Fathers hoped to protect the fledgling country from any government that tried to throw citizens in jail for speaking their mind.

But defense of the First Amendment isn’t just a libertarian principle. The left-leaning American Civil Liberties Union (ACLU) has defended the speech rights of Nazis and of KKK members . One reason for the ACLU’s decades of principled defense is this: if we empower the government to censor people whose views we find abhorrent, sooner or later that same power will be turned against people whose views we find noble.

As Nadine Strossen, president of the ACLU from 1991 to 2008, puts it , “It is precisely those who lack political or economic power who are the most dependent on robust freedom of speech.”

Liberal titan Noam Chomsky puts it even more bluntly : “If we don’t believe in freedom of expression for those we despise, we don’t believe in it at all.”

Why Do People Want to Ban Hate Speech?

Why do some people want to ban hate speech? Their arguments, in brief, are as follows:

1) The idea that hate speech can cause physical harm to its victims

2) The idea that hate speech has nothing to offer the marketplace of ideas

3) The idea that legal hate speech creates a cultural norm supporting racial slurs, demoralizing current and potential victims

4) The idea that hate speech primes the pump for violence and genocide

5) The idea that legalizing hate speech is defending the bad guys

Let’s consider each of these arguments in turn.

1) The Idea That Hate Speech Can Cause Physical Harm to Its Victims

The first argument is the idea that hate speech isn’t just irritating; it can cause real damage to its victims. Richard Delgado and Jean Stefancic lay out the case in their article “Four Observations about Hate Speech” published by Wake Forest Law Review :

“Although some courts and commentators describe the injury of hate speech as mere offense, the harm associated with the face-to-face kind, at least, is often far greater than that and includes flinching, tightening of muscles, adrenaline rushes, and inability to sleep. Some victims may suffer psychosocial harms, including depression, repressed anger, diminished self-concept, and impairment of work or school performance. Some may take refuge in drugs, alcohol, or other forms of addiction, compounding their misery.”

In a New York Times op-ed titled “When is speech violence?”, clinical psychologist Lisa Feldman Barrett makes a similar argument : “If words can cause stress, and if prolonged stress can cause physical harm, then it seems that speech—at least certain types of speech—can be a form of violence.”

If the targets of hate speech suffer physical harm—by causing stress, by robbing them of sleep, by increasing their blood pressure —then, the argument goes, perhaps we are justified in using the power of the state to protect victims from that harm.

Counterpoint to This Claim

The claim that we should ban hate speech because it can cause harm to its victims rests on a confusion of two terms. In reality, hate speech can (but doesn’t always) lead to distress ; it does not lead to harm .

What’s the difference? Harm, in the classically liberal sense, is a rights violation. Being punched in the nose causes harm. Distress is unpleasant, but a feeling of distress does not mean that your rights were violated.

Hate speech can lead to distress, but it doesn’t follow that we should ban hate speech.

Writing in The Atlantic , social psychologist Jonathan Haidt acknowledges that hateful speech can cause distress while rejecting the idea that we should therefore ban said speech. As Haidt notes, other behaviors that can cause distress include, “gossiping about a rival” or “giving one’s students a lot of homework.” As Haidt explains, “Both practices can cause prolonged stress to others, but that doesn’t turn them into forms of violence [i.e. harm].”

Haidt’s examples further illustrate the central distinction between vices and crimes. Banning crimes (i.e. things that cause harm) is important in a free society. A ban on vices, be it hateful speech or gossiping about a rival, would be a tyrannical restriction of people’s freedom. Essential to the very concept of freedom is the freedom of others to do and say things that we personally do not approve of.

The argument that we should ban hate speech because of the distress that hate speech can cause also rests on the mistaken view of “naive statism.” It assumes that hate speech laws (or any law, for that matter) will work precisely as intended: X is bad, so you ban X and that’s the end of the story. In this fairy tale, there are no unintended consequences, and bans on X don’t backfire.

In reality, the impact of hate speech laws is very different from what proponents imagine. What is their actual impact?

Hate Speech Laws Empower Politicized Censors

First off, hate speech has no agreed-upon definition. It’s inherently subjective. Further, these laws cannot be narrowly tailored. The law is a blunt instrument, made more blunt when it goes after behavior that cannot—by its very nature—be nailed down.

To see precisely how hard it is to nail down what is and isn’t hate speech, let’s consider some examples.

Should the n-word be banned? Many people consider that a clear-cut example of hate speech. But what about when it’s uttered by a professor who’s reading verbatim from the James Baldwin book The Fire Next Time (a book about racial injustice in the 20th century)?

Should anti-trans speech be banned? Many commentators seem to think so, but what would that mean? Would “deadnaming” a trans person (referring to them by their pre-transition name or gender) qualify? What about a parent refusing to call their trans child by preferred pronouns; should that parent be locked in prison ( as has happened in Canada )?

These are just a couple of the endless edge cases that cannot be decided in advance and that any hate speech law must therefore leave to the broad discretion of state authorities.

Bans against XYZ hate speech are enforced by those in power. Any bans will be politicized by their very nature, because one person’s righteous anger is another person’s hate speech. We can see this on Twitter, which combines censorious impulses with far-left politics to create shockingly politicized bans. Sarah Jeong, former editorial writer for the New York Times , made hateful tweets such as , “Are white people genetically predisposed to burn faster in the sun, thus logically being only fit to live underground like groveling goblins,” and, “oh man it’s kind of sick how much joy I get out of being cruel to old white men.”

In spite of the fact that Jeong’s tweets vilified people on the basis of race, Jeong is still active on Twitter.

Across the aisle, though, the Christian satire outlet The Babylon Bee wrote an article naming Rachel Levine (a transgender woman and US Assistant Secretary For Health at the US Department of Health and Human Services) as “Man of the Year.” Twitter decided that that satire was more hateful than Jeong’s tweets, and suspended The Babylon Bee for their post. ( The Bee was reinstated after Elon Musk’s purchase of Twitter.) 

When censorious laws are applied by people with political biases (that is, by human beings) they will inherently be applied unevenly. Imagine your political opponents having the power to ban subjective hate speech. Republicans might ban any discussion of Critical Race Theory. Democrats might ban any criticism of the transgender rights movement.

This isn’t hypothetical, and it doesn’t just happen on Twitter. These kinds of laws are always applied by those in power to punish ideas they don’t like. In the United States in the 1950s, “criminal syndicalism” statutes made it a crime to advocate violence in order to achieve a certain political end. These laws were weaponized against political ideas that US rulers didn’t like. Writing for the American Enterprise Institute , Tom Snyder notes that :

“While framed in general terms, those statutes were mostly intended to make it illegal to advocate the adoption of Marxism, communism, and most forms of socialism – all of which preached the need for a violent workers revolution – in the US. Criminal syndicalism statutes could thus criminalize not only pure speech advocating Marxism, but also being a member of a party that advocated Marxism.”

The result was the widespread purge of leftists known as McCarthyism. Censorship advocates should be wary of ushering in another purge.

Hate Speech Laws Drive Bigots Underground

Even when hate speech laws actually target genuine hatred, they don’t eliminate it; they just drive bigots underground. This actually makes it harder to root out bigotry and to confront prejudiced people with the ideas necessary to help them move past their prejudice.

Daryl Davis is a black jazz musician who befriends KKK members and convinces them to disavow their racist beliefs. He finds them, talks to them in earnest, listens to their hatred…and changes their minds. To date, he’s convinced more than 200 KKK members to hang up their robes, including an Imperial Wizard (the highest-ranking member of the Klan).

In a world where white supremacists weren’t free to utter their noxious beliefs, Davis’ work would be impossible. He wouldn’t know who to target.

Davis’ work requires that KKK members be free to express their ideas, because only then can he counter them. He tells the story of a KKK member who told him that, “Well we all know that all black people have within them a gene that makes them violent.” By listening to the white supremacist, Davis was able to flip the script and offer a counterargument. Davis responded, “Well, we all know that all white people have a gene within them that makes them a serial killer.” When the KKK member got offended, Davis responded with, “What I said was stupid, but no more stupid than what you said to me.”

According to Davis, after his rejoinder the white supremacist, “got very, very quiet and changed the subject. Five months later, based on that conversation he left the Klan.”

If bigots don’t air their ideas in public, they’re less likely to be exposed to a solid refutation of those ideas. If the KKK member who told Davis that all black people had a violent gene inside of them had never been able to air his ideas, Davis never would have been able to rebut them. Rather than hanging up his robes, the man would likely still be a part of the Klan.

Here’s the flip side of the same concept: driving bigots underground radicalizes them. In a world where their hateful ideas are banned, these men and women will only feel free to express their thoughts to people who already agree with them. That creates echo chambers.

Hate Speech Laws Rob Minorities of Key Information

Driving bigotry underground also robs minorities of important information.

For example, if you force Christians who think homosexuality is a sin to bake wedding cakes for same-sex couples, then same-sex couples cannot discriminate in their choice of a cake maker. They cannot vote with their dollars and give money to more tolerant Americans, while avoiding giving money to homophobes.

They also cannot factor a cake-maker’s beliefs about homosexuality into their decision of which cake maker to hire, even though those beliefs are highly relevant. A cake-maker who supports gay marriage is more likely to pour dedication and craftsmanship into the cake. A cake maker who opposes gay marriage, and resents being forced by law to violate his religious beliefs, is more likely to spit in the cake…or at least not put in his best work.

Hate Speech Laws Turns Bigots Into Martyrs

At the same time that hate speech laws drive many bigots underground—preventing the rest of society from being able to engage with and cure their prejudice—it turns the few who stand against the laws into martyrs.

Weimar Germany tried to censor Hitler and the Nazis before they rose to power. The state used hate speech laws aggressively in an attempt to crack down on Nazi ideology. The Weimar Republic shut down hundreds of Nazi newspapers and actually banned Hitler himself from speaking in many parts of Germany from 1925 until 1927.

Far from being crippled by these laws, the Nazis leveraged this censorship to build awareness and support for their ideas. One poster read, “Why is Adolf Hitler not allowed to speak? Because he is ruthless in uncovering the rulers of the German economy, the international bank Jews and their lackeys, the Democrats, Marxists, Jesuits, and Free Masons! Because he wants to free the workers from the domination of big money!” A 1920s cartoon said of Hitler, “He alone of two billion people on Earth may not speak in Germany.”

Greg Lukianoff, CEO of the Foundation for Individual Rights in Education, explains the net effect : “Far from being an impediment to the spread of National Socialist ideology, Hitler and the Nazis used the attempts to suppress their speech as public relations coups. The party waved the ban [on Hitler speaking] like a bloody shirt to claim they were being targeted for exposing the international conspiracy to suppress ‘true’ Germans.”

This was especially effective because Nazi ideology already posited an international Jewish conspiracy to disempower Aryan Germans. Hitler was able to spin the censorship as evidence of those claims: the powers that be wanted him silenced because he was exposing their secrets.

Reporting on hate speech trials similarly empowers hateful actors by elucidating the bigots’ ideas. In Canada, where denying the Holocaust is seen as a criminal offense, a Holocaust denier was brought to court in 1985. Journalists at the New York Times who covered the case had to explain his ideas and reasoning in order to inform their readers of the controversy. It is hard to imagine a more effective PR vehicle.

Crucially, this reporting amplifies bigots’ ideas in a way that doesn’t encourage meaningful discussion. More people were exposed to the claim that the Holocaust wasn’t real, but Holocaust deniers weren’t given a chance to discuss their arguments and therefore change their minds. It therefore represents the worst of both worlds: media coverage elevates bigots’ ideas without providing a vehicle to cure them of their prejudice.

Hate Speech Laws Create More Bigotry

Hate speech laws can backfire in another way, too: they can create the illusion that prejudice is both popular and based on sound ideas, inadvertently strengthening the case of bigots in society.

In an email to me, Lukianoff described how hate speech laws can create the illusion that hatred is widely popular in society.

“…[B]anning certain opinions often leads many people to believe that those opinions are so dangerous and sufficiently widely held that they must be banned with the extraordinary force of law…This not only can but will send a message that more people hold certain views than actually do.

This results in what John L. Jackson dubbed ‘racial paranoia,’ the sense that the only reason why white people aren’t espousing hateful rhetoric is because of the force of law, rather than because they do not in fact agree with such opinions and rhetoric.”

Speech suppression can embolden people with hateful views, because it creates the mistaken impression that the silent majority agrees with their prejudice. Even worse, this “racial paranoia” can actually lead people towards bigotry. Humans are social animals, after all. If we believe that most of our peers hold XYZ belief, we’re more likely to at least consider the belief in a positive light.

Bans against hate speech can also send the message that hateful ideas are too effective to counter with reasoned argument. As Tyrion Lannister said in A Clash of Kings (the second book in the A Song of Fire and Ice series that inspired the popular Game of Thrones TV show), “When you tear out a man’s tongue, you are not proving him a liar, you’re only telling the world that you fear what he might say.” Hate speech laws send the message that bigotry cannot be rebutted in the marketplace of ideas. After all, an idea that can be easily rebutted isn’t so dangerous it needs to be banned; it’s merely dumb.

Or as Lukianoff puts it: hate speech laws “can actually prompt people into seeking evidence for why the ‘bad guys’ might be onto something.”

This isn’t just theory. Many countries in Western Europe have passed aggressive hate speech laws, but their peoples are far more intolerant than US citizens. 24 percent of the total population in Western Europe harbors anti-Semitic attitudes, according to an index of anti-Semitism created by the Anti-Defamation League (a nonprofit dedicated to measuring and combating anti-Semitism). This is in spite of the fact that many Western European hate speech laws explicitly prohibit Holocaust denial.

In the United States, the number of folks who harbor anti-Semitic attitudes is just 10 percent.

Hate speech laws may even contribute to bigotry. As Lukianoff explains, “…[I]n practically every country that passed laws against anti-Semitism in Europe reported rates of anti-Semitism have gone up, and substantially. America which has not enacted such laws has not seen a similar increase.”

In 1987, the United Kingdom passed a law against , “words or behaviour … likely to stir up racial hatred.” In the following years, racial tolerance actually declined .

According to a 2017 study published in the European Journal of Political Research , the recent rise in Western European extremism was partly fueled by, “extensive public repression of radical right actors and opinions.”

2) The Idea That Hate Speech Has Nothing to Offer the Marketplace of Ideas

The second argument used by proponents of hate speech bans is that hate speech isn’t useful to society, so we lose nothing by banning it.

Understanding this argument fully requires us to back up for a moment, into one of the defenses of free speech. Some free speech defenders argue that we shouldn’t ban certain words or ideas, because freedom is essential to the “marketplace of ideas.” That is, if we create an open marketplace wherein ideas of all kinds are free to battle it out, then we as a society will eventually move closer to truth. Everyone benefits.

But proponents of banning hate speech argue that hate speech doesn’t contribute anything of value to this marketplace. It doesn’t improve us as a society, and it doesn’t help society get anywhere we should want to go; so there’s no downside to banning it. As David Shih writes for NPR , “It might mean that racist hate speech is not a ‘necessary evil’ that jumpstarts racial justice within a liberal marketplace but is — for the foreseeable future — nothing more than state-sanctioned injury of people of color.”

Counterargument to This Claim

The idea that so-called hate speech contributes nothing of value to society rests on two mistaken premises.

First, “hate speech” doesn’t just mean racial slurs. Hate speech laws are applied selectively by those in power, and throughout history governments have criminalized lots of ideas that we now think have value.

In 2014, a Brooklyn graffiti artist was arrested on hate crime charges. Her alleged crime? Spraypainting messages like, “NYPD pick on the harmless” and “a wrongful arrest is a crime.”

Across the aisle, radical feminists in England have run afoul of hate crime laws. Their alleged crime? Insisting that men and women are marked by biological differences. Say what you will about trans rights, but it’s hard to see how stating biological facts doesn’t contribute at least something to our national discourse.

A few years ago, the “lab leak” theory of the COVID-19 outbreak (that the virus might have originated from a lab in Wuhan, China) was dubbed a hateful and racist idea . Now evidence is emerging that the theory might be true . This showcases a fundamental problem with attempts to outlaw hate speech: yesterday’s fringe conspiracy theories can become today’s plausible arguments. Prominent journalists smeared and dismissed the “lab leak” theory, which hurt our overall understanding of the pandemic.

But even if we only look at racist and sexist slurs, the idea that hate speech has no value to society rests on a flawed understanding of why free speech is important.

It’s true that racial epithets don’t contribute to the marketplace of ideas, but that’s not the only value of free speech. There’s another value in letting people speak freely, which is that free speech helps us all understand each other—and the society in which we live—a little better.

Greg Lukianoff calls this the “Lab in the Looking Glass” theory. As he describes it :

“Imagine being a scientist and showing up to a new fully staffed laboratory with all of the best equipment that’s ever been invented. You have not been told about the project you will be working on, but there is a huge curtain in front of you. The director of the project announces that the study is the most challenging that has ever been undertaken and you will not be able to finish it in your lifetime, but even knowing a little bit more about the subject will be of nearly limitless value. He pulls back the curtain to reveal a gigantic mirror looking right back at you.”

“You and your colleagues are to be the subjects. The project: to know everything about you and everything related to you.” (emphasis in original).

If we want to understand human nature, and the society that we live in, then of course letting bigots speak is essential. Prejudice is an unfortunate part of many folks’ psychology, and understanding that prejudice requires listening to them.

This understanding isn’t just useful for abstract philosophy either. More practically, we can only treat an illness when we fully understand it. If data came out tomorrow that 30 percent of Americans think black people are inferior, that would be terrible. It would also represent essential information for us to know about our society, because only when we are armed with this information can we craft any kind of useful response.

Curing prejudice requires understanding it. Understanding it requires letting the carriers of that prejudice speak.

3) Hate Speech Creates Social Contagion of Bigotry

The third argument used by proponents of hate speech bans represents a “social contagion” view of hate speech. The idea is that if John calls a black man the n-word in public, then people around John will start to think this kind of rhetoric is acceptable. Bigots will feel more free to express themselves, and social norms will change to encourage racism as white folks on the fence start to wonder if John is on to something with his racial hatred.

Delgado and Stefancic sum up this perspective: John’s actions may “giv[e] onlookers the impression that baiting minorities is socially acceptable, so that they may follow suit.” For Delgado and Stefancic, this open acceptance of racial slurs can even produce racism: “many Americans harbor measurable animus toward racial minorities. Might it be that hearing hate speech, in person or on the radio, contributes to that result?”

The biggest problem with this “social contagion” theory is that it gets the facts precisely backwards. Hearing hateful speech doesn’t make someone more likely to become prejudiced. In his book, Free Speech: A History from Socrates to Social Media , Jacob Mchangama makes this point using one of the most starkly hateful regimes from human history. Nazi Germany didn’t just legalize anti-Semitic hate speech, they used government organs to pump out non-stop propaganda about Jews. If the “social contagion” theory was remotely true, this firehose of state-sponsored hatred should have driven anti-Semitism through the roof.

What actually happened? Measures of anti-Semitism barely budged. Nazi propaganda got a foothold “in districts where anti-Semitism was already prevalent before the Nazi takeover.” In other parts of Germany—for example, among the working class and Catholics—Nazi propaganda didn’t generate the hoped-for hatred of Jewish people.

Why didn’t a flood of hate speech generate widespread anti-Semitism among the German people? Aldous Huxley, author of Brave New World , described the limits of propaganda in 1936:

“Propaganda gives force and direction to the successive movements of popular feeling and desire; but it does not do much to create these movements. The propagandist is a man who canalizes an already existing stream. In a land where there is no water, he digs in vain.”

Hate speech—even when made pervasive and pushed with all the power of a totalitarian government—can empower bigots to speak more openly, but is ineffective at actually creating more prejudice.

By contrast, as we saw in looking at Western Europe, banning hate speech can create more prejudice. There’s a reason that Western Europe has over twice the anti-Semitism on average as the United States.

It’s also worth noting that unlike Nazi Germany—or even large swathes of Western Europe—the United States is not a particularly hateful place. A white man shouting the n-word at a black man in a crowded area is unlikely to be met with cheers and applause. He’s far more likely to be met with boos, social condemnation, and even fists in certain parts of the country.

As Lukianoff, himself a liberal who’s never voted for a Republican, explained to me, “I think people like Delgado have misled young people into thinking that nobody thought about racism prior to 2020. Meanwhile, growing up in the 1980s, at least in the circles I was in, racism was already taken for granted to be a great evil. No law forced us to think that way.”

What about the idea that if we as a country allow hate speech, then those in power (i.e. We the People in a republic) are giving their tacit approval to bigotry? Lukianoff finds that argument more than a little absurd:

“The argument that if one opposes making any sort of speech illegal that he or she somehow agrees with or condones it is hard to take seriously. Even assuming the most constrained, minimal interpretation of free speech in which it only goes as far as absolutely necessary to maintain a democratic republic and therefore should only apply to speech relating to self-government, you still do not end up in a place where a decision not to make opinions, views, or kinds of speech illegal is the same as approving of them.”

As Lukianoff explained to me, the idea that if something is legal, it must follow that those in power support it, is hard to square with the ideals of a republic. That sort of logic might fly in a monarchy: the king dislikes something, ergo it is banned. But in a republic, we understand that freedom means the freedom to do things that those in power don’t approve of.

4) Hate Speech ‘Primes the Pump’ For Violence and Genocide

The fourth argument used by proponents of hate speech bans is that racist violence flows from racist speech. The demonization of one group in society encourages hatred against that group. Violence and genocide flow downstream from this hatred.

Or as United Nations Secretary-General Ban Ki-moon put it , “One of the key warning signs [of genocide] is the spread of hate speech in public discourse and the media that targets particular communities.” Based on this claim, he called for governments to “stand firm against hate speech and those who incite division and violence.”

Ban Ki-moon cited the 1994 Rwandan genocide as evidence that hate speech lays the groundwork for violence. Other commentators have cited the Third Reich’s demonization of Jews to back up the notion that hate speech leads to violence.

Both of these examples seem a little strange, because they’re examples of state-sponsored propaganda. That’s a completely different beast from simply legalizing hate speech.

Nazi Germany illustrates the difference well. As discussed above, Nazi propaganda was ineffective at generating anti-Semitic attitudes among adults. But there was one group where it was successful: young people.

Mchangama writes that, “Studies have shown that Nazi propaganda was most effective on young Germans—more impressionable, with little experience of living in a free society and subject to institutional indoctrination in schools and Hitler Youth organizations….”

This makes sense. If you take young people and subject them to endless propaganda from teachers and other leaders about how XYZ population is awful and must be scourged from the earth, then many of those young people will start to believe it. Schools mold minds.

But does anyone think that’s remotely applicable to a discussion of hate speech regulation? Do Delgado and Stafancic believe that, in the absence of laws banning hate speech, our schools are simply propaganda organs indoctrinating young people in the idea that racial minorities are inferior? The comparison is absurd.

The idea that the 1994 Rwandan genocide—in which Hutus, the ethnic majority, slaughtered an estimated half a million members of the Tutsi ethnic minority—represents an argument in favor of hate speech laws is similarly more than a little strange.

It’s true that the genocide was accompanied by a wave of speech demonizing the Tutsis. As former US ambassador to the United Nations Samantha Power described the genocide, the killers , “carried a machete in one hand and a transistor radio in the other.”

But this speech was created and propagated by state outlets. Radio stations that didn’t tow the governmental line were banned. There was an official state radio station, and most other stations were controlled by pro-government forces.

Lukianoff describes the importance of this distinction . “To use the authorized media of a genocidal state as evidence of the danger posed by excessive liberty suggests a failure to understand the core concept of liberty.”

Even if the radio messages had come from private individuals, they wouldn’t qualify as protected speech in the United States. These messages provided the names and addresses of Tutsis along with a call to kill them. That’s not protected speech; that’s incitement to commit murder, which is already illegal under existing United States law.

But what about the messages that didn’t rise to the level of incitement, but did still carry toxic messages about Tutsis? Here proponents of hate speech laws are on stronger ground, but only slightly.

It’s possible that this expression laid the groundwork for the genocide, but that claim is tenuous and experts are split on whether or not it’s plausible.

Political scientist Scott Strauss performed a deep analysis of radio reception and genocidal violence in Rwanda in order to ascertain to what effect radio messages drove the murders.

He found that radio broadcasts only reached 5-10 percent of the population. In 1994, only 10 percent of the population even owned a radio, and coverage was uneven. Further, the initial violence didn’t correlate with areas of broadcast coverage. He concluded that radio broadcasts had “marginal and conditional” effects, but that “radio alone cannot account for either the onset of most genocidal violence or the participation of most perpetrators.”

Richard Carver, who worked with both Amnesty International and Human Rights Watch, concluded that , “[t]he massacres would have taken place with or without the RTLM [Radio Television des Mille Collines, the primary radio station in Rwanda at the time] broadcasts.”

When we look at the impact of actual hate speech laws, rather than government propaganda designed to incite murder, the idea that private hate speech leads to violence just doesn’t hold up.

Denmark , Germany , and the United Kingdom all have strong hate speech laws, while the United States does not. If legal hate speech truly primed the pump for violence, then we should expect the United States to have more hate crimes than these three countries.

In fact, we see the opposite pattern. In Denmark in 2019, there were 8.08 hate crimes per 100,000 people. In Germany, the number was 10.34 per 100,000 people. In the United Kingdom, it was a staggering 157.67 per 100,000 people.

The United States saw just 2.61 hate crimes per 100,000 people . That’s still far too many, but it paints a clear picture: hate speech laws don’t reduce violence against minorities, and might just create more of it.

5) The Idea That Legalizing Hate Speech Is Defending the Bad Guys

The fifth argument put forward by proponents of banning hate speech conceptualizes the fight against racism as a simplistic struggle in which you are either helping racists or hurting them. In this view, free speech isn’t the universal principle that Chomsky and Strossen describe. Rather, free speech is a tool that some groups of people use to gain power. Supporting the rights of X group thus entails supporting the group itself. Restricting their speech is a way to restrict the power of X group.

Noah Berlatsky summarizes this view in an article for NBC News calling for new hate speech laws, subtitled, “Maybe it’s time we stop defending Nazis.”

Going deeper on his “us versus them” conception of how law works, Berlatsky writes, “”Free speech!’ is a battle cry that has been picked up by neo-Nazis and white supremacists . They see First Amendment advocates as allies—and it’s not because they love freedom.”

In this view, if “neo-Nazis and white supremacists” see First Amendment advocates as allies, maybe it means there’s something wrong with the First Amendment. If a tool empowers our enemies, then we should reform or gut that tool.

This argument rejects the Enlightenment perspective of law as a universal principle. It rejects the idea that the law should treat everyone equally, and instead sees the law as a tool to empower or disempower certain groups.

Such an argument is deeply mistaken. Defending the free speech of neo-Nazis doesn’t just protect skinheads; it protects all of us, because that’s how freedoms work. If you empower censors to target your opponents, then soon those same censors will target your friends. That’s especially true in a republic, in which power changes hands on a regular basis.

When the ACLU defended the rights of Nazis to march, they protected that same freedom for future marginalized groups such as Black Lives Matter.

There Can Be No Free Speech Without the Freedom to Utter Hate Speech

The essence of the argument against hate speech laws is this: without legal hate speech, there can be no free speech.

Hate speech laws are subjective and are therefore employed at the discretion of those in power. In practice, hate speech is essentially saying things that those in power do not like.

China, for instance, recently made it a crime to mock the country’s heroes. The Chinese Communist Party routinely arrests people who criticize communism.

It’s not just China; governments always and everywhere use censorship as a tool to crack down on the types of speech they don’t like. Human rights activist and staunch liberal Glenn Greenwald published a lengthy article detailing how hate speech laws are used to punish progressives. After citing examples from a half-dozen countries, he notes that :

“This is how hate speech laws are used in virtually every country in which they exist: not only to punish the types of right-wing bigotry that many advocates believe will be suppressed, but also a wide range of views that many on the left believe should be permissible, if not outright accepted. Of course that’s true: Ultimately, what constitutes ‘hate speech’ will be decided by majorities, which means that it is minority views that are vulnerable to suppression.”

There can be no freedom of speech without the right to say what those in power do not want said.

Is Hate Speech Constitutionally Protected?

In the United States, the First Amendment clearly protects speech that some people deem hateful.

The Supreme Court has long considered free speech to be a bedrock American principle that can only be curtailed in very narrow cases. These cases include defamation, harassment, obscenity, fighting words, and true threats. The Court has wisely not interpreted the First Amendment to ban hate speech, for many of the reasons cited in this article, including that such a ban would be inherently subjective and morally wrong.

Of course, the question of whether X behavior is legal is a different question than whether it’s moral. Racist and sexual slurs are deeply immoral. But the Supreme Court has widely and consistently recognized that there are more effective ways to counteract hate speech than blunt laws.

If Hate Speech Laws Don’t Work, What Can We Do to Reduce Bigotry In Society?

There are two powerful ways to combat bigotry, which don’t rely on governmental force: counterspeech, and giving bigots enough rope to hang themselves.

Counterspeech—essentially calling out hateful speech when we see it, and producing powerful arguments against hateful ideas—is the best way to combat prejudice. Supreme Court justice Anthony Kennedy describes it well :

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”

Counterspeech is more effective than laws banning hate speech, because counterspeech offers the possibility of convincing people out of their bad ideas rather than simply threatening them into silence. As the United Nations puts it , “ As the key means to counter hate speech, the United Nations supports more speech – not less – and holds the full respect of freedom of expression as the norm .” (emphasis in original)

As Lukianoff said in an email to me, “I don’t think even the most strident proponents of hate speech laws would argue that a highly tolerant culture, one that rejects racism, is more effective at impeding racism than a law imposed on an intolerant people.”

The second way to combat prejudice is to give bigots a microphone. Most Americans are decent people, and even supporters of white nationalists like Richard Spencer are quick to distance themselves once the speakers’ more odious views become known.

Hate Speech Is a Problem, But Hate Speech Laws Aren’t the Solution

Bigotry is a real problem in any large society, but hate speech laws aren’t the solution.

They drive prejudice underground and let it fester. There’s strong evidence that they may actually foster prejudice rather than reduce it.

Hate speech laws also represent unethical curtailments of our inalienable rights. No human is truly free who can be imprisoned for saying something the powers-that-be do not like.

What we need to combat hate speech is counterspeech and a culture of respect towards our fellow human, not enforced silence.

Julian is a former political op-ed writer and current nonprofit marketer. His work has been featured in FEE, National Review, Playboy, and Lawrence Reed's economics anthology  Excuse Me, Professor .

More By Julian Adorney

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Home — Essay Samples — Social Issues — Discrimination and Prejudice — Hate Speech

Essays on Hate Speech

In the contemporary digital age, the issue of hate speech has become increasingly prevalent, sparking debates around freedom of expression, the limits of speech, and the impact on targeted communities. Essays on hate speech offer a critical platform to explore the nuances of aggressive communication, its societal implications, and the legal and ethical boundaries that govern it.

Exploring the Dimensions of Hate Speech

Hate speech encompasses a range of expressions intended to demean, intimidate, or harm individuals based on race, ethnicity, religion, gender, sexual orientation, or other identity markers. Essays on this subject might examine:

• The Origins and Evolution of Hate Speech: Tracing the historical context and how hate speech has evolved with technological advancements, particularly through social media platforms.
• Legal Perspectives on Hate Speech: Analyzing the balance between protecting freedom of speech and curbing expressions that incite violence or discrimination, including a comparison of different countries' legal frameworks.
• Psychological and Societal Impact: Investigating the effects of hate speech on individuals and communities, including mental health repercussions and the potential for inciting real-world violence.
• Strategies for Combating Hate Speech: Discussing the role of governments, NGOs, social media companies, and individuals in addressing and mitigating the spread of hate speech.

Leveraging Hate Speech Essay Samples

Utilizing essay samples on hate speech can significantly aid students by:

• Providing Structure and Format Examples: Samples offer insights into effective ways to structure essays, develop arguments, and conclude discussions.
• Broadening Understanding: By reviewing different essays, students can encounter a variety of perspectives and methodologies used to examine hate speech.
• Illustrating Research Integration: Samples demonstrate how to effectively incorporate academic research, legal statutes, and real-world examples to support claims.
• Inspiring Original Analysis: Engaging with diverse essays encourages deeper reflection and the development of unique viewpoints on hate speech.

Tips for Crafting an Insightful Hate Speech Essay

Crafting a compelling essay on hate speech involves several key strategies:

• Narrow Down Your Focus: Hate speech is a broad topic; choosing a specific aspect, such as its impact on a particular community or the effectiveness of legal responses, can provide depth to your analysis.
• Use Credible Sources: Incorporate data and studies from reputable sources to bolster your arguments, including legal documents, psychological research, and case studies.
• Address Counterarguments: Consider and critically evaluate opposing viewpoints to strengthen your essay’s persuasive power.
• Discuss Potential Solutions: Beyond identifying problems, propose feasible solutions or preventive measures to address hate speech.

Navigating the Complexities of Hate Speech

Writing a hate speech essay is an opportunity to delve into one of the most pressing issues of our time, offering insights into the delicate balance between freedom of expression and the protection of individuals from harm. Through careful research, critical thinking, and nuanced argumentation, students can contribute meaningful perspectives to the ongoing debate on how to effectively address hate speech in society.

The exploration of hate speech is not only an academic exercise but also a call to action for fostering more inclusive, respectful, and safe spaces for dialogue and interaction. By examining the roots, implications, and responses to hate speech, students can play a part in shaping a more equitable and compassionate world.

The Role of Hate Speech in Social Media

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The Issue of Free Speech and Hate Speech on Campus

Hate speech should not be tolerated inside school campus, the use of artificial intelligence in detecting hate speech, cyber racism – the growth of right-wing extremists and hate speech, the case of social stigma of hiv patients in south africa, stop the hate: understanding and combating prejudice, addressing far-right propaganda and hate speech in the social media age.

1. Howard, J. W. (2019). Free speech and hate speech. Annual Review of Political Science, 22, 93-109. (https://www.annualreviews.org/doi/abs/10.1146/annurev-polisci-051517-012343) 2. Fortuna, P., & Nunes, S. (2018). A survey on automatic detection of hate speech in text. ACM Computing Surveys (CSUR), 51(4), 1-30. (https://dl.acm.org/doi/abs/10.1145/3232676) 3. Baker, E. (2008). Hate speech. Public Law Research Paper, (08-09). (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1105043) 4. Rosenfeld, M. (2002). Hate speech in constitutional jurisprudence: a comparative analysis. Cardozo L. Rev., 24, 1523. (https://heinonline.org/HOL/LandingPage?handle=hein.journals/cdozo24&div=53&id=&page=) 5. MacAvaney, S., Yao, H. R., Yang, E., Russell, K., Goharian, N., & Frieder, O. (2019). Hate speech detection: Challenges and solutions. PloS one, 14(8), e0221152. (https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0221152) 6. Brown, A. (2015). Hate speech law: A philosophical examination. Taylor & Francis. (https://library.oapen.org/handle/20.500.12657/25902) 7. Banks, J. (2010). Regulating hate speech online. International Review of Law, Computers & Technology, 24(3), 233-239. (https://www.tandfonline.com/doi/abs/10.1080/13600869.2010.522323) 8. Brown, A. (2017). What is hate speech? Part 2: Family resemblances. Law and Philosophy, 36, 561-613. (https://link.springer.com/article/10.1007/s10982-017-9300-x)

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Stephen rohde, review essay: is ‘hate speech’ free speech – first amendment news 414.

• Ronald K. L. Collins

What follows is a review essay by Stephen Rohde of “ Hate Speech Is Not Free: The Case Against First Amendment Protection ” (2024) by W. Wat Hopkins. Professor Hopkins was invited to reply but declined — though he did note, “While I disagree with much of the review, I am heartened that the book is prompting debate on the issue.”

Our usual profile of cases, news items, books, and articles follows Rohde’s review. – rklc 

Is “hate speech” protected by the First Amendment? Professor  W. Wat Hopkins doesn’t think so. 

In his new book, “Hate Speech Is Not Free: The Case Against First Amendment Protection,” Hopkins argues that “hate speech” is nothing more than a “verbal attack.” It contains “no ideas of value” and is not part of the marketplace of ideas because its “purpose is not to communicate an idea, but to harm.”

Hopkins, professor emeritus at Virginia Tech, where he taught communications and cyberspace law, is a former editor of the journal Communications Law and Policy. In his slim but densely argued book, he first surveys over a hundred years of First Amendment law and then distills his case into several overlapping arguments. But all told he fails to make a convincing case that “hate speech” should be excluded from constitutional protection. 

Indeed, Hopkins’ arguments remind us why  not  creating a new exception to the First Amendment for hate speech promotes a free and open democracy. Granted, Hopkins’ motive is noble — to combat racism, bigotry, and hate. But those of us who support robust and wide-open free speech believe, along with Frederick Douglass, Dr. Martin Luther King Jr., and many others, that free speech is the friend, not the enemy, of the struggle to achieve equality and human dignity for every person. 

Throughout this review, I put “hate speech” in quotation marks because it is a term of art that means different things to different people, including different judges. The quotation marks remind us that “hate speech” has yet to command any consensus on which to build a new regime of censorship.

Hopkins’ case against affording ‘hate speech’ First Amendment   protection

Hopkins begins by arguing that “the defining feature of hate speech is that ‘it incurs harm discursively when [it] is uttered,’” and its purpose “isn’t to communicate ideas, but to induce psychological harm,” citing articles by Katharine Gelber and Steven H. Shiffrin. He says that noted linguist George Lakoff believes that “hate speech” can “change the brain in ways that is [sic] more harmful than a physical attack.” Consequently, “[h]ate speech can inflict injury by its very utterance” and therefore is prohibited speech under  Chaplinsky v. New Hampshire , a 1942 Supreme Court case that recognized certain exceptions to the First Amendment including obscenity, profane and slanderous speech, and what the Court called “fighting words.”  

Hopkins also asserts that “hate speech” is valueless. “The fact that its sole purpose is to cause harm is sufficient evidence of its lack of value, but its intent and content also make it valueless.” He argues that just like fighting words and obscenity, “hate speech” is unprotected because, citing  Chaplinsky , it is “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” 

“Hate speech,” he adds, is closely related to unprotected fighting words, threatening speech, and some categories of intimidating speech, because a defining characteristic of “hate speech” is that it is designed to “directly attack” individuals and groups. He argues that protecting persons from fear is a valid reason for prohibiting “hate speech.”

Finally, invoking the views of free speech scholar  Alexander Meiklejohn , Hopkins argues that First Amendment protection should extend no further than speech of “self-governing importance” because “a verbal attack has no relation to the business of government.”

Rebutting Hopkins and defending First Amendment protection for ‘hate speech’

Definitional difficulties

The response to Hopkins must begin with his failure to offer a cogent, workable, legally enforceable definition of “hate speech.” He admits that such a definition “is essential if hate speech is to be regulated or, beyond that, cast from First Amendment protection.” He even cites a leading  2020 treatise devoted entirely to “hate speech” which concedes that “hate speech” is “a messy, highly contested concept used in political theory, legal theory, legal documents and in simple common usage with its meaning changing depending on the context of who is using it and to what ends.” 

Hopkins cites, by my count, 17 different definitions of “hate speech,” some of which refer to speech that “threatens,” “insults,” or “attacks” people based on their race, ethnicity, national origin, age, religion, gender, or disability. But he doesn’t even attempt to provide a single definition that would meet constitutional requirements. For almost 100 years, the Supreme Court has insisted that all laws, and especially laws affecting speech, “must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. . . . [A]nd a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” 

In a book whose single purpose is to ostracize an entire category of speech from public discourse and subject it to criminal, civil, and disciplinary punishment, the author has a special responsibility to define what is and is not “hate speech.”

Is it “hate speech” to accuse the Jewish state of Israel of genocide or apartheid? To accuse the Palestinian organization Hamas of genocide or terrorism? Is it “hate speech” for Palestinian protesters to chant “from the river to the sea”? For defenders of Israel to call for killing all members of Hamas? When it comes to “hate speech” based on age or disabilities, what about attacks on 81-year-old Joe Biden and 77-year-old Donald Trump? And if it is none of these things, then what is it?

If by any definition, “hate speech” directed at individuals already qualifies as fighting words, a true threat, incitement, or part of a criminal act, why do we need a new separate exception that is “so vague that men of common intelligence must necessarily guess at its meaning”? 

Other fundamental flaws  

There are other fundamental flaws in Hopkins’ argument. He relies heavily on  Chaplinsky . There, a member of the Jehovah’s Witnesses was arrested for lashing out at a town marshal, shouting, “You are a God-damned racketeer” and “a damned Fascist.” Characterizing the outburst as “fighting words,” the Supreme Court upheld his criminal conviction. But Hopkins readily admits that “the fighting words doctrine has all but died.” Today, would we actually want someone to go to jail for calling, say, a former president, “a damned Fascist”?

What Hopkins really likes about  Chaplinsky is the notion that speech is unprotected when it is “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.”

No new First Amendment exceptions

In the eighty-plus years since it was decided,  Chaplinsky has not given birth to any newly announced Supreme Court exceptions to the First Amendment. Instead, the trajectory of free speech law has been in the opposite direction. Certain forms of libel were never considered protected speech under the First Amendment until  New York Times v. Sullivan   (1964) held that libel involving public officials, public figures, and matters of public interest, made without knowledge of falsity or in reckless disregard of the truth, is entitled to First Amendment protection. Likewise, obscenity was never considered protected speech until  Miller v. California   (1973) held that only an obscene work, which, “taken as a whole, lacks serious literary, artistic, political, or scientific value,” can be denied First Amendment protection.

The Court has routinely refused Hopkins’ invitation to use the language in  Chaplinsky to expand the number of exceptions to the First Amendment. In  United States v. Stevens (2010), the Court refused to exclude so-called “crush videos,” containing depictions of animal cruelty, from First Amendment protection. And in  Ashcroft v. Free Speech Coalition (2002), the Court refused to create a new First Amendment exception for virtual child pornography, including computer-generated images, or "any sexually explicit image” that was advertised “in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct.”

At its core, Hopkins’ theoretical argument is divorced from the realities of how debates over race, religion, gender, nationalities, and ethnicities are actually conducted in the real world. Much of what he would label “hate speech” is in fact  political  speech expressed in controversial, hyperbolic, outrageous, and even offensive terms, all of which deserve full First Amendment protection. 

Constitutionally protected political ideas

Hopkins repeatedly claims that the essence of “hate speech” “is to cause harm without the expression of any ideas.” But in doing so he has set a trap for himself. If speech does in fact express an idea — any idea — then it falls outside of Hopkins’ definition and is therefore entitled to First Amendment protection.

Expressions of hatred toward Adolph Hitler and celebration of his death are  political ideas and are therefore constitutionally protected. Expressions of hatred toward Ismail Haniyeh, the political leader of Hamas, and calls for his assassination, or expressions of hatred toward Benjamin Netanyahu, Prime Minister of Israel, and calls for his assassination, are all  political  ideas and are therefore constitutionally protected. These expressions are not to be banished from political debate because Haniyeh is Muslim and Netanyahu is Jewish. And our commitment to robust and wide-open debate does not require that we sanitize these political views by requiring that they be spoken in polite and demur phases like “I oppose Hamas” or “I oppose Israel.” 

Using the  Chaplinsky framework on which Hopkins bases his entire argument, these expressions of hatred are in fact an “essential part” of the “exposition of ideas,” because they possess significant “social value as a step to truth” which should not be silenced by a generalized “interest in order and morality.”

As Justice Holmes  wrote in 1929 : “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

Slippery slopes

Our law, the Supreme Court, and America itself will slide down a very dangerous slippery slope if we accept Hopkins’ invitation to censor whatever he means by “hate speech.” Today, we may applaud the punishment of speech we loathe, but tomorrow we will rue the day that speech we cherish cannot be spoken. U.S. law has fashioned a few narrow exceptions for fighting words, true threats, incitement, harassment, and speech used in the commission of a crime to deal with speech outside the purview of the First Amendment. We don’t need a new vague and ambiguous exception for “hate speech.” 

Instead of policing speech, we need to devote ourselves to the more difficult task at hand: the unfinished business of dismantling the political, social, economic, and societal institutions that perpetuate racism, sexism, discrimination, and bigotry in our country.

Forthcoming book: Rabban on Academic freedom and the First Amendment

• David Rabban, “ Academic Freedom: From Professional Norm to First Amendment Right ” (Harvard University Press, August 2024)

A definitive interpretation of academic freedom as a First Amendment right, drawing on a comprehensive survey of legal cases. Is academic freedom a First Amendment right? Many think so, yet its relationship to free speech as guaranteed by the Constitution is anything but straightforward. David Rabban examines the extensive case law addressing academic freedom and free speech at American universities, developing a robust theory of academic freedom as a distinctive subset of First Amendment law. In subsuming academic freedom under the First Amendment, Rabban emphasizes the societal value of the contribution to knowledge made by the expert speech of professors, the classic justification for academic freedom in the influential 1915 Declaration of the American Association of University Professors (AAUP). Any indication that professors might be disciplined because people without academic training disagree with their scholarly views would undermine confidence in the integrity of their work and therefore their ability to perform this vital function on behalf of the public. Rabban argues that academic freedom fosters two central First Amendment values recognized by courts in a wide range of contexts: the production and dissemination of knowledge and the contribution of free expression to democratic citizenship. The First Amendment right of academic freedom applies most directly to professors, but it also plausibly extends to the educational decisions of universities and to students’ learning interests. More broadly, this vision of academic freedom can guide in developing additional distinctive First Amendment rights to protect the expert expression of journalists, librarians, museum curators, and other professionals. At a time when academic freedom is under attack from many directions,  Academic Freedom  proposes a theoretically satisfying and practically useful guide to its meaning as a First Amendment right.

• Graham Piro, “ Amy Wax hearing report confirms fears over erosion of academic freedom at Penn ,” FIRE (March 4)

Florida ‘Stop WOKE’ law shot down by 11th Circuit panel

• Andrew Atterbury, “ Appeals court slams Florida’s ‘Stop-Woke’ law for committing ‘greatest First Amendment sin’ ,” Politico (March 4)

Florida is legally blocked from enforcing a key portion of the high-profile 2022 law restricting what Gov. Ron DeSantis called “woke” workplace trainings about race after a federal appeals court ruled Monday that the policy “exceeds the bounds of the First Amendment.” A three-judge panel of the 11th U.S. Circuit Court of Appeals dealt a blow to the DeSantis administration by deeming one of the Republican governor’s signature laws — the “Stop Woke” Act — unconstitutional, upholding a  previous ruling  that prevented it from taking hold. DeSantis officials, meanwhile, disagreed with the decision, signaling that the governor could ask the Supreme Court to weigh in. “By limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content,” Judge Britt C. Grant, an appointee of former President Donald Trump, wrote in  the opinion . “And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints — the greatest First Amendment sin.” Florida’s Republican-led Legislature passed the “anti-woke” legislation, FL HB 7 (22R), or the Individual Freedom Act, in 2022 with the backing of DeSantis. It expanded Florida’s anti-discrimination laws to prohibit schools and companies from leveling guilt or blame to students and employees based on race or sex, taking aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

First Amendment Watch Q&A with Alex Abdo on ‘Jawboning’ social media case

• Susanna Granieri, “ The Knight Institute’s Alex Abdo on ‘Jawboning’ Social Media Case Before the Supreme Court ,” First Amendment Watch (March 5)

Mis- and disinformation on major social media platforms grew exponentially during the 2016 presidential election and the COVID-19 pandemic, which prompted efforts by the U.S. government to communicate its concerns about the spread of such speech on major social media platforms. Years later, the Supreme Court is tasked with deciding whether the Biden administration’s efforts to curtail mis- and disinformation online violates the First Amendment. The case,  Murthy v. Missouri , was brought by the Republican Attorneys General in Missouri and Louisiana, as well as a group of five social media users, including physicians who claim their posts criticizing COVID-19 policies were unconstitutionally censored and the government overstepped in its attempt to discuss COVID-19 and election misinformation with social media platform executives. A federal judge in Louisiana  granted a preliminary injunction in July  blocking the Biden administration and key government agencies from communicating with the platforms, describing the government’s efforts as a “far-reaching and widespread censorship campaign.” That order was then significantly narrowed by the U.S. Court of Appeals for the Fifth Circuit, but the appellate court  said  officials cannot attempt to “coerce or significantly encourage” changes in online content. In its decision to take on the case in October, the Supreme Court  blocked the lower courts’ restrictions  on the administration’s communications with social media companies throughout the duration of the litigation. Oral arguments are scheduled on March 18. First Amendment Watch spoke with Alex Abdo, litigation director of the Knight First Amendment Institute at Columbia University, which filed an amicus brief on behalf of neither party in the case. Abdo discussed the importance of the social media cases before the court this term, the need for clarity on the constitutional line between persuasion and coercion, and expressed his belief that it’s important for the government to have the opportunity to express its own views to social media platforms that have the power to shape public opinion. [Q&A continues  here ]

Forthcoming scholarly article on revenge porn, elections, and the First Amendment

• Zachary Starks-Taylor and Jamie Miller, “ Politicians Live on Camera: Revenge Porn, Elections, and the First Amendment ,” New York University Law Review (2024)

Since our nation’s founding, the private sex lives of politicians have been a consistent topic of public concern. Sex scandals, such as those involving Alexander Hamilton, Bill Clinton, and Donald Trump, have consumed the focus of the public. With the advent of the internet and social media, a new dimension has been added to that conversation: now, details of a politician’s sex life often come accompanied by photo or video evidence. Outside of the election context, when someone shares an individual’s private explicit material without their consent, they have committed the crime of “revenge porn.”  Recent high-profile incidents have raised the question of whether the crime of revenge porn can still be prosecuted when the disclosure of private explicit materials involves a political candidate. In the election context, unique First Amendment concerns about chilling political speech result in heightened speech protections. Before prosecuting a case, prosecutors must grapple with the question: Does the First Amendment protect revenge porn when it is used to influence an election?  This Essay argues that the special First Amendment concerns about elections are diminished in the revenge porn context: the statutes are already tailored to address those concerns, and the state’s independent interest in enforcing revenge porn laws is still compelling. As such, it concludes that the First Amendment should not have extra force in a revenge porn case just because the disclosure occurred in the context of an election.

‘60 Minutes’ book-banning segment

• “ 97 Books ,” 60 Minutes (March 1)

Scott Pelley reports on the battle to ban 97 books in one South Carolina public school district and the role played by the national movement for “parental rights” inspired by a group called  Moms for Liberty .

• Gay Ivey, “ How teens benefit from being able to read ‘disturbing’ books that some want to ban ,” Free Speech Center (March 1)

‘So to Speak’ podcast on Taylor Swift and Satan . . . and more!

• “ Free speech news: NetChoice, Taylor Swift, October 7, and Satan ,” FIRE (Feb. 29)

On today's free speech news roundup, we discuss the recent NetChoice oral argument, Taylor Swift, doxxing, October 7 fallout on campus, and Satan in Iowa. Joining us on the show are Alex Morey, FIRE director of Campus Rights Advocacy; Aaron Terr, director of Public Advocacy; and Ronnie London, our general counsel.

• Lynn Greenky, “ Publishing Taylor Swift’s flight info: Stalking or protected free speech? ” Free Speech Center (March 5)

More in the news

• “ Trump’s Lawyers Fight DA’s Request for a Gag Order in His Hush-Money Criminal Case ,” First Amendment Watch (March 5)
• Eugene Volokh, “ Principal’s Libel Lawsuit Over Claims He Was Fired for Sexual Harassment Can Go Forward ,” The Volokh Conspiracy (March 5)
• “ Small Business Reporting Requirement Found Unconstitutional by Alabama Federal Judge ,” First Amendment Watch (March 5)
• Leslie Corby, “ American University silent amid concerns over sweeping speech bans ,” FIRE (March 5)
• Grayson Clary, “ In blockbuster First Amendment cases, US Supreme Court seems splintered ,” Reporters Committee (March 4)

2022-2023 SCOTUS term: Free expression and related cases

Cases Decided

McKesson v. Doe (Per Curiam: 7-1 with Thomas, J., dissenting: “[W]e conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights — without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We ex- press no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.”)

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (argued Oct. 31)
• Moody v. NetChoice, LLC   and   NetChoice, LLC v. Paxton   (argued Feb. 26)
• National Rifle Association of America v. Vullo  (argument: March 18)
• Murthy v Missouri   (argument: March 18)
• Speech First, Inc. v. Sands ( certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) ( Thomas and Alito, dissenting )

Pending petitions

• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Mckesson v. Doe
• M. C. v. Indiana Department of Child Services
• Pierre v. Attorney Grievance Commission of Maryland
• Brokamp v. James
• O’Handley v. Weber

State action

• Lindke v. Freed  (argued Oct. 31)

Review denied

• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of  certiorari . Justice Thomas, dissenting from the denial of  certiorari . (separate  opinion ) Justice Alito, dissenting from the denial of  certiorari . (separate  opinion )
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of  18 U.S.C.  §  1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also  Fischer v. United States

Previous regularly scheduled FAN

FAN 413 : “ Certainty and uncertainty: The tech platform cases ”

This article is part of  First Amendment News , an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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Hate Speech: A Threat to Peaceful Coexistence and Religious Tolerance

• Do You Want To File A Complaint? Get Advice From Our Professionals? Details

Hate speech on social media

Checked : Olivia S. , Vallary O.

Latest Update 21 Jan, 2024

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Hardly anybody would march up to a crowd in person and announce their hate for all members of a certain ethnic group, race or religion just out of the blue. However, this is sometimes an everyday occurrence online, where the anonymity of an online profile affords users the confidence to make bold statements on social media.

One would think that in this day and age, we live in relative harmony at least in our real lives. While people may still have their differences, they have mostly learned to keep it civil in the community and at the workplace. Most countries have laws protecting minority groups from discrimination, and there are numerous organizations that champion freedom, tolerance and diversity. However, with the prevalence of hate speech in the online world, one may question if people really are living in harmony these days or if they have simply taken their quarrels elsewhere.

Social media   is a golden platform for connecting people and allowing them to network, share news and air their personal opinions. Unfortunately, it is often also filled with negativity, one of which is hate speech. To share one’s personal views on social media is to open oneself up to a barrage of online attacks, sometimes fighting fire with fire. Many arguments over hate speech escalate into “flame wars”, where most commenters may not even remember what they were originally debating about, but rather resort to personal attacks and sometimes even threats. If words could kill, the participants would probably be dead many times over. Whether hate speech targets a single person or a group of people, it is undeniably destructive and violent.

What constitutes hate speech? There is no definite set of rules that can reliably identify hate speech for what it is. At its core, hate speech tends to attack people for having certain characteristics, such as their race, skin color, ethnic group, religion, gender or sexual orientation – essentially harassing, intimidating or calling for violence against people for who they are. Some hate speech comments may be general – for example, “I hate all members of a certain race”. Others may be targeted at a single person or generalizing all members of a group that the person belongs to. Hate speech can occur in varying severity, from voicing one’s opinion about a certain group or person to threatening them with violence, including statements about wanting to kill them.

There are also other forms of hate speech, such as the posting of violent images or images with such a connotation. For instance, some anti-Semitic groups post images of the Holocaust, including gas chambers, Nazi symbols or Adolf Hitler. Anti-black groups may post gory images from the Jim Crow era of African American victims. Even if no “speech” is technically used in such posts, the message is quite clear and is commonly regarded as hate speech.

The wealth of information on the Internet may have played its part in inciting hate speech. Many individuals still harbor prejudiced feelings towards members of certain demographic groups. For instance, racism, misogyny or homophobia very likely still lurk in the hearts of many, even if it is not visible in their daily lives. The Internet is home to critics, toxicity and “triggers” that can goad the inclined to violence. Additionally, word spreads quickly on social media, allowing people the ability to spread their ideas, threats and violent actions quickly – most of which tend to go viral once the online population fans the flames.

Some sociologists believe that the way social media platforms work is not helping to curb the spread of hate speech either. Social media platforms make money off advertising. These depend on maximizing the user’s browsing time so that more advertisements will be fed to them. Since it is in the social media platforms’ best interests to keep users on the page for as long as possible, algorithms are used to direct users to pages and media they would likely want to browse. This makes it easy for a user to chance upon violent or extremist views, which can then lead them to more similar posts.

Unfortunately, it often turns out that the more time people spend around these kinds of negative sentiments on social media, the more inclined they may be to air their honest views. In fact, the open policy of the Internet encourages people to post and respond freely, especially on social media pages and comments sections which are not moderated. Rarely is hate speech incited on its own. Usually,   media   coverage of an ongoing hot topic tends to provoke responses which are critical and condescending, which then provoke more responses and culminate in a chain reaction of hate speech. The media may also tend to paint some easy targets in a more negative light, resulting in stronger feelings from the public and thus stronger responses.

Under the policy of freedom of speech, hate speech is not illegal. In fact, hate speech is constitutionally protected in the United States under the First Amendment, as long as it does not contain a threat of violence. Most social media platforms and online forums are privately owned, allowing the owners to restrict the content allowed on their platform as per their own terms of service. However, while forums may be more strictly policed, social media tends to be looser in terms of what it defines as hate speech, since it deals with much higher volumes of content and is essentially each user’s own personal “space”.

Even platforms with the strictest policies on hate speech usually have to moderate it manually due to the many forms hate speech can take on. Systems can be trained to recognize word patterns, but it is more difficult to discern the context or intentions of those words. With the vast number of posts on popular social media platforms, it is usually up to individual users to report offensive posts and optionally block the offending user.

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Some may say that hate speech is harmless as long as it remains a verbal assault on the Internet. After all, the Internet is not meant for those with thin skin. Since hate speech is technically protected under freedom of speech, why should people not be allowed to air their personal opinions publicly?

It appears that the prevalence of hate speech can easily provoke people to violence. In recent years, there have been a number of hate crimes that have come about as a result of hate speech on social media. In June 2015, Dylann Roof shot and killed nine African American worshippers at a church in Charleston, thereafter describing his act in vivid detail and without remorse in a video which he posted on social media. It was believed that Roof had “self-radicalized” online through material containing violent white supremacist beliefs on the Internet, leading him to think that an appropriate course of action would be to resort to violence.

The Charleston church shooting is only one of many cases where perpetrators consumed online media that led them to develop extreme beliefs, leading to violent courses of action. While people are certainly entitled to their personal opinions, we should not underestimate the potential of social media in dividing mankind.

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Trump Derails Weird Speech on Crime to Complain Women Hate Him

Donald trump struggled to stay on message as he muttered his way through his speech..

Donald Trump gave his second sleepy address in as many days Tuesday during a stop in Howell, Michigan, diverting from his winding rant about crime to complain that women don’t seem to like him very much. 

During Trump’s low-energy speech , which was hosted in a shiny white garage at the Livingston County Sheriff’s office in front of parked police SUVs, the convicted felon candidate desperately attempted to frame his opponent, a former prosecutor, as being too lenient on crime. 

Trump alleged that Kamala Harris was “the ringleader for this pro-crime and anti-police crusade. It’s a real anti-police crusade. They just have it out for the police. Nobody knows why.”

He also called Harris “one of the first Marxist prosecutors in America” and “the godmother of sanctuary cities.”

Trump continued to falsely claim that Harris was responsible for passing a law that allows shoplifters in California to steal up to $950 in goods without being prosecuted, which Trump first claimed during his wild press conference last week in Bedminster, New Jersey.

“So, guys are walking into stores with calculators,” Trump said, turning to the officers standing behind him. “Did you know that they have calculators? They’re adding it up, they want to make sure they’re under $950. But it didn’t matter because they didn’t prosecute the ones that went over it.”

The Golden State’s penal code says nothing of the sort . Instead, it states that shoplifters who steal under $950 are charged with a misdemeanor, and those who steal more are charged with a felony. Even if the law said what Trump keeps insisting it does, which it doesn’t, it’s not clear that Harris had anything to do with the law being passed, or with “that horrible shoplifting epidemic” he blamed her for. 

While Trump’s speech was meant to focus on crime and safety, he was miraculously able to deliver the exact same talking points he’d made at every speaking event for the past week. He did make one new, but ultimately unsurprising claim, about his apparent lack of support from female voters.

The Republican nominee promised that if elected to the White House, he would stop the “plunder, rape, slaughter, and destruction of our American suburbs,” before detouring into a rant about women voters.  

“I think that women living in the suburbs—I keep hearing about ‘the suburban woman doesn’t like Trump,’ well, I think it’s a fake poll because why wouldn’t they like me? I keep the suburbs safe,” Trump claimed, arguing that women should be grateful that he kept undocumented immigrants out of their communities. 

“I think that they like me a lot, I think it’s a lot of fake polls ,” Trump insisted, claiming he had “won the big one,” despite what polls had predicted. Trump went on to argue that for women voters, safety was the most important issue. 

“Women want to have safety. They want to have a strong military. They want to have a strong police force. They want to be in the house, and they want to be safe. They don’t want to have people pouring into their doors and you can’t do anything about it. Right?” 

As the crowd clapped, Trump mused, “I hope they like my personality.”

He thought about it for a moment. “I have a nice personality. But to me, it wouldn’t be very important, the personality. They want to be safe,” Trump said. 

Trump: I keep hearing the suburban woman doesn’t like Trump. I think it’s a fake poll. Why wouldn’t they like me? I think they like me a lot. pic.twitter.com/JYOyHkFWIx — Acyn (@Acyn) August 20, 2024

Rather than actually craft a message that appeals to female voters, who could reasonably be disturbed by any part of Trump and J.D. Vance’s lackluster platform, including their overtly misogynistic rhetoric, Trump has repeatedly tried to woo women with his racist anti-immigrant fear-mongering. 

On Sunday, Trump shared a post on his Truth Social account showing video footage of a line of people of color walking on a dirt road with the caption, “If you’re a woman you can either vote for Trump or wait until one of these monsters goes after you or your daughter.”

Trump’s attempts to convince women to vote for him have been falling flat, and female voters have been moving steadily to the left, or as far away from Trump as they can manage. A New York Times /Siena poll published Saturday found that Kamala Harris had opened up a significant gender gap in some key battleground states, earning a 14-point lead over Trump among likely women voters in Arizona, Georgia, and Nevada, a group that had been evenly split between Joe Biden and Trump in May.

Trump’s speech had no shortage of the fear-mongering one has come to expect from the former president, even if he delivered it at a lower-energy frequency than normal.  He went on to repeat his oft-issued threat, that the world was on the precipice of World War III. 

He claimed he would never allow the military to become woke, before randomly turning to the officers standing behind him. “Do you promise you’ll never be woke? I don’t see a lot of wokeness, there’s not a lot of wokeness,” Trump said . “I don’t think so.”

Trump's incoherent, rambling "crime" speech in Michigan has now veered into fear-mongering about nuclear war and "woke." If events like this are a new part of his campaign strategy, it won't be long before they rethink it. pic.twitter.com/troCwzgev2 — Aaron Rupar (@atrupar) August 20, 2024

Trump Takes Fascist Threat to Next Level With New Proposal on Judges

Donald trump wants to make it a crime to criticize any judges who like him. imagine what that would mean..

Donald Trump thinks it should be “illegal” for the public to criticize the Supreme Court justices who rule in his favor.

In a bizarre speech over the weekend, between a bad Emmanuel Macron impression and claiming that he is better looking than Vice President Kamala Harris, Trump made a frightening declaration: He believes that those who criticize his judges should be punished.

“I really think it’s illegal what they do, with judges and justices. They’re playing the ref,” Trump said at a Saturday rally in Wilkes-Barre, Pennsylvania. “Remember the term. Playing the ref with our judges and justices should be punishable by very serious fines and beyond that.”

Trump on people who criticize the Supreme Court: Playing the ref with our judges and justices should be punishable by serious fines and beyond that. pic.twitter.com/bnQTHv6WIY — Acyn (@Acyn) August 17, 2024

But even as others get their First Amendment rights taken from them, Trump thinks he should still have a right to criticize the courts. “The New York court system is totally corrupt,” Trump said in the same Saturday speech, referring to the court that convicted him of 34 felonies in his hush-money trial. His rants about the judge, the prosecutors, and the witnesses in that trial were so extreme that he was slapped with a gag order back in March, part of which still remains in place.

Trump’s suggestion comes as the Supreme Court’s conservative justices are under greater scrutiny after multiple reports of corruption and ties to far-right groups . Last month, Representative Alexandria Ocasio-Cortez introduced articles of impeachment against Clarence Thomas and Samuel Alito.

Watch: J.D. Vance Cruelly Pushes for Domestic Abusers’ Right to Guns

Vance prioritized gun rights over women’s safety..

J.D. Vance argued Tuesday that access to firearms should only be restricted for those convicted of a crime—meaning that those under restraining orders should still be able to purchase weapons.

During a press conference in Kenosha, Wisconsin, Vance was asked what he thought about restricting firearms access for those convicted of stalking. Vance answered the question, and then some.

“Well look, I think that we certainly don’t want violent criminals to have access to weapons, and that includes people, I think, who have been convicted of stalking. But I think it’s important to say convicted,” Vance replied.

“And what a lot of those of us who are pro-Second Amendment, what we don’t want is, you know, we don’t want somebody to have their gun rights taken away when they haven’t actually been to court of law. Whether it’s a First Amendment right, a Second Amendment right, you are entitled to due process in this country,” Vance explained.

“Certainly, people who are convicted of a crime, they should not be able to carry a firearm. But people who have not gone through due process, they still have their rights,” he said.

Earlier this year, the Supreme Court upheld a New York law prohibiting domestic abusers under restraining orders from carrying firearms, with one lone dissenter: Justice Clarence Thomas. Thomas argued that the government could not “strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime.”

In the majority opinion, Chief Supreme Court Justice Roberts found that the New York law was in line with constitutional law. “Our tradition of firearm regulation allows the government to disarm individuals who present a credible threat to the physical safety of others,” Roberts wrote.

Trump and Vance, Tanking in Polls, Pick a Fight With Andy Beshear

Donald trump and running mate j.d. vance are straight up lying after kentucky governor andy beshear criticized their record on abortion..

J.D. Vance and Donald Trump are attacking Andy Beshear over comments the Kentucky governor made on MSNBC Tuesday morning.

“I mean, think about what some people have had to go through because of these laws,” Beshear told Mika Brzezinski on Morning Joe regarding Republican states’ laws against abortion.

“J.D. Vance calls pregnancy resulting from rape ‘inconvenient.’ Inconvenience is traffic. Make him go through this,” Beshear added.

The Trump-Vance campaign seized on the words and took them out of context, claiming that Beshear actually called for Vance’s family members to be raped. Vance’s spokesperson William Martin called for Kamala Harris to “immediately repudiate” Beshear’s comments.

The Republican vice presidential nominee chimed in himself, calling Beshear a “disgusting person.”

What the hell is this? Why is @AndyBeshearKY wishing that a member of my family would get raped?!? What a disgusting person. https://t.co/11Kp1h92MN — JD Vance (@JDVance) August 20, 2024

It’s pretty clear that the Trump campaign is deliberately misinterpreting Beshear’s words, looking to make an issue when in reality, Beshear was accusing Vance of downplaying pregnancies resulting from rape. Recent polls have shown that while the Harris-Walz campaign is surging , Trump and Vance are going in the opposite direction.

Vance could be attacking Beshear as a way to distract from his own views on abortion. Last week, he said that “ normal ” women don’t care about their reproductive rights, and, long before that, he said some weirder things about procreation and women who don’t have children. In any case, Vance and Trump have struggled to land any effective attack or criticism against Harris or her running mate, Tim Walz, so expect to see them try to manufacture more controversies as the election draws nearer.

Trump’s Latest Scheme to Beat Harris May Have Crossed Legal Lines

Donald trump is reportedly advising israeli prime minister benjamin netanyahu, which would be a violation of the logan act..

He may not be in office, but Donald Trump has been speaking with the powers that be about Israel’s war on Gaza—but it’s not in an effort to end the genocide.

Instead, Trump has allegedly been talking with Prime Minister Benjamin Netanyahu to avert a cease-fire deal, fearing that doing so could help Vice President Kamala Harris win in November, according to PBS.

“The reporting is that former President Trump is on the phone with the Prime Minister of Israel, urging him not to cut a deal right now, because it’s believed that would help the Harris campaign,” said PBS’s Judy Woodruff Monday night. “So, I don’t know where—who knows whether that will come about or not, but I have to think that the Harris campaign would like for President Biden to do what presidents do, and that’s to work on that one.”

Woodruff clarified on Wednesday that the anecdote was not based on her original reporting, but rather on an an Axios story last week that cited two U.S. sources as claiming that Trump and Netanyahu had spoken on the phone about cease-fire and Gaza hostage talks. Netanyahu’s office and Trump both separately denied the report.

“I did encourage him to get this over with. You want to get it over with fast. Have victory, get your victory, and get it over with. It has to stop, the killing has to stop,” Trump said at a New Jersey press conference on Thursday, referring to their meeting at Mar-a-Lago last month. But he also criticized cease-fire demands.

PBS reporting that Trump has been talking to Netanyahu trying to STOP a cease fire deal because it would “help the Harris campaign” Monstrous… and a possible violation of the Logan Act. pic.twitter.com/6jvzaEv1Q9 — Heather Gardner (@heathergtv) August 20, 2024

During Biden’s speech at the Democratic National Convention on Monday, the president promised that his administration is working around the clock to bring “humanitarian assistance into Gaza,” “peace and security to the Middle East,” and to deliver a “cease-fire” and an end to the war.

The president also nodded to the more than 3,500 protesters who took to the streets of Chicago on Monday, demanding an immediate cease-fire to the war, claiming that the demonstrators “have a point.”* The war has killed more than 40,000 Palestinians since it began 10 months ago.

Palestinian poet Mosab Abu Toha, who escaped the besieged country in December, reported on Monday that the humanitarian area in south Gaza is little more than 14 square miles.

“Crammed in it are more than 1.8 million people, with no water, no electricity, no food, no clinics or pharmacies, and no shelters,” he wrote , lamenting in a separate post that he cannot “understand how this government continues to fund the genocide but cannot put an end to it” and “force the aggressors to stop dropping bombs.”

* This piece has been updated to clarify the number of protesters at the DNC.

This piece has been updated with Woodruff’s statement on Wednesday.

RFK Jr.’s Running Mate Exposes Just How Far They’ll Go to Beat Harris

Nicole shanahan floated the idea of joining forces with donald trump..

Robert F. Kennedy Jr.’s campaign is sinking fast. Federal Election Commission filings indicated that the fringe political candidate spent more than he brought into the campaign in July, with more than half of his donations coming out of the pocket of his running mate Nicole Shanahan , a Silicon Valley lawyer and investor.

But shortly after the dire news broke, Shanahan revealed precisely why the conspiracy theorist has remained on the ballot so long, despite his abysmal polling.

“I’ve got to keep focusing on what matters the most outside of party lines. I need to focus on a vision that goes beyond November,” Shanahan told Tom Bilyeu’s Impact Theory podcast , adding that there are “benefits” to staying in the race, including official party recognition if their campaign secures more than five percent of the vote. That could translate into a stronger third party in the next election cycle, thanks to public funds that could provide up to $13.5 million dollars to the fledgling political group.

“That means that we could position for a real third-party election in 2028, where we don’t have to go around and spend tens of millions of dollars on ballot access, which means that we can spend all of that time and money campaigning,” Shanahan said.

But there’s an entirely different outlook for the Kennedy campaign should they decide to pull out—and, according to Shanahan, it would all be for the benefit of one candidate.

“There’s two options that we’re looking at, and one is staying in, forming that new party, but we run the risk of a Kamala Harris and Walz presidency because we draw votes from Trump,” she said. “Or, we walk away right now and join forces with Donald Trump.”

That latter option would require explaining to all of Kennedy’s supporters why the alternative political pairing have, after all their efforts, ultimately bent the knee to the two-party system. And while that wouldn’t pave the way for more political representation for everyday Americans, it could translate into administration positions for Kennedy and Shanahan. In fact, Trump already floated the idea in July, pitching that Kennedy—a notorious vaccine skeptic—could lead the Health and Human Services Department should the Republican nominee win in November.

“Not an easy decision,” Shanahan said.

RFK’s VP Nicole Shanahan says they are debating whether to stay in the race or drop out and join forces with Trump: “There’s two options that we're looking at and one is staying in, forming that new party, but we run the risk of a Kamala Harris and Waltz presidency because we… pic.twitter.com/O3HrLbbCLO — End Tribalism in Politics (@EndTribalism) August 20, 2024

MAGA Melts Down Over Kamala Harris’s Stepdaughter at DNC

Donald trump’s supporters are suddenly obsessed with ella emhoff for some reason..

Conservatives are freaking out about Kamala Harris’s stepdaughter after she … did nothing but exist.

As Harris’s husband and Second Gentleman Doug Emhoff watched on at the first night of the Democratic National Convention, his children Cole and Ella Emhoff stood by his side. Ella, a 25-year-old fashion designer, rocked the Harris-Walz camo hat, campaign swag that was so popular it sold out in just 30 minutes .

As the family shared a proud moment, Republicans zeroed in on Harris and Emhoff’s daughter and began critiquing her looks, her body language, and her love for her dad.

“Totally not weird,” wrote Charlie Kirk, who was already having a rough time at the DNC.

“Kamala Harris’ stepdaughter looks like she is ready to assassinate a former President tonight,” wrote a conservative Twitch streamer, seemingly referring to the shooter who targeted Trump last month.

“This is how Kamala Harris’s step daughter Ella Emhoff dressed to see her step mother during one of the most important moments of her career at the DNC,” wrote right-wing media personality Oli London. (London perhaps shouldn’t talk about looks when he made a name for himself by engaging in extreme ethnic plastic surgery procedures.)

Others went so far as to try to “ trans-vestigate ” Ella Emhoff and accuse her of being a man.

“This is Kamala’s family. Beyond parody,” the account End Wokeness posted , sharing a normal video of Emhoff speaking with his two children. Again, it’s unclear what exactly is supposed to be weird here.

According to conservatives, when Trump gets touchy with his daughter, it’s normal. But when a daughter hugs her dad in an important moment in their life, it’s strange beyond belief. Totally makes sense!

The Terrifying Way Literal Nazis Are Using Steve Bannon’s Podcast

Neo-nazis have co-opted the far-right podcast to recruit new members..

An online collective of neo-Nazis is using Steve Bannon’s War Room podcast as a recruitment tool, according to an exclusive report published by The Guardian Tuesday.

The Terrorgram collective is a network of neo-Nazis and fascists that produces and disseminates right-wing propaganda using Telegram, encouraging acts of far-right terror and sanctifying those who commit them. 

The collective runs three main Telegram channels that mix mainstream news coverage with far-right content. The mainstream content gives the channels an air of legitimacy as administrators urge users to join group chats where more violent, extreme ideas are pushed, according to a report from the Institute for Strategic Dialogue .

The group has reportedly taken over a channel that is linked to Steve Bannon’s podcast, and markets itself as the “official home of the War Room Posse.” In a corresponding group chat, the channel’s administrator claimed that Bannon himself was involved in running the channel, according to ISD. The administrator has garnered more than 63,000 subscribers, only a few hundred short of the official War Room channel, and the channel’s contents have been shared by white nationalist Charlie Kirk to his nearly 170,000 followers. 

The Terrorgram collective disseminates its extremist propaganda to radicalize users and encourage racially charged violence. Nineteen-year-old Juraj Krajčík, who opened fire on people outside a popular LGBTQ bar in Bratislava, Slovakia, in 2022, killing two people and injuring a third, had published a lengthy creed thanking the Terrorgram for “building the future of the White revolution, one publication at a time.” The U.K. government declared the collective a terrorist group in April.  

The collective is clearly hoping to tap into Bannon’s audience, pulling the already far-right MAGA movement even further into extremism, and Bannon’s platform represents one ripe for a neo-Nazi takeover. 

Bannon, who remains an influential voice on the alt-right, once admitted that he admired Donald Trump because Trump reminded him of Adolf Hitler. Bannon, who worked as Trump’s 2016 campaign manager and a strategist in Trump’s White House, was the mastermind behind creating the MAGA movement, which he reportedly hoped would rule the United States for hundreds of years. He was ultimately ousted from Trump’s administration after Nazis marched in Charlottesville, Virginia, in 2017.

Bannon is currently serving a four-month prison sentence for refusing to testify to Congress for his role in the January 6 Capitol insurrection.

RFK Jr.’s Campaign Is Suddenly Very Short on Cash

Robert f. kennedy jr. is seriously struggling with his campaign..

Robert F. Kennedy Jr.’s presidential campaign is in financial trouble.

The campaign is spending more money than it is bringing in, according to Federal Election Commission filings . It has $3.9 million in cash on hand, but is nearly $3.5 million in debt. In July, the campaign spent over $7 million while raising only $5.6 million, almost half of which came from RFK Jr.’s running mate Nicole Shanahan , a Silicon Valley lawyer and investor.

The campaign’s spending remained high despite a cutback on events, according to Politico. Kennedy has not appeared at any public events since the beginning of July, instead sporadically showing up on podcasts and at conferences. Much of the campaign’s funds have gone towards ballot access, Facebook and Google ads, and a security firm run by a longtime associate.

Even with the help of a partnership with the Libertarian Party, the campaign’s fundraising, despite a slight uptick, hasn’t kept up with spending. The fact that Kennedy seems to be relying on Shanahan’s money more than outside donations suggests that he’s not bringing in a lot of new fans, either.

Kennedy seems to be aware of his diminishing fortunes. Last month, the independent candidate spoke with Donald Trump about getting a White House job in exchange for dropping out of the race and endorsing the convicted felon. Kennedy also reached out to the Kamala Harris campaign with a similar proposition, only to be rebuffed , probably because he might actually help her by staying in the race.

RFK Jr.’s campaign was in trouble even before President Biden stepped aside, with Kennedy failing to qualify for the first presidential debate. There were also a series of damaging revelations, from reports of a worm in his brain to the news that he dumped a bear carcass in Central Park to allegations of sexual assault . With diminished polling, all of this begs the question of what the point of Kennedy’s campaign actually is.

Former Trump Insider Breaks Ranks to Support Harris at DNC

Kamala harris will get a major boost from donald trump’s former press secretary..

Several Republicans are slated to speak at the Democratic National Convention this week, as Democrats attempt to unify forces against a potential second Trump presidency. But on Tuesday, Democrats announced that they had secured one of Donald Trump’s former communications directors, and she’s expected to make a splash with an endorsement of Trump’s political rival, Vice President Kamala Harris.

Trump White House press secretary Stephanie Grisham will join the liberal party’s long list of speakers, reported NBC News .

“I never thought I’d be speaking at a Democratic convention. But, after seeing firsthand who Donald Trump really is, and the threat he poses to our country, I feel very strongly about speaking out,” Grisham told NBC. “While I don’t agree with Vice President Harris on everything, I am proud to be supporting her because I know she will defend our freedoms and represent our nation with honesty and integrity.”

Grisham had served as Melania Trump’s chief of staff and press secretary before briefly joining Trump’s administration in 2019. She was the first member of Trump’s team to resign after the January 6 riot on the U.S. Capitol and has since been an outspoken critic of the former president.

“Jan. 6, of course, was my breaking point,” Grisham told NBC News’s Meet the Press in October 2021.

Last week, Grisham made waves when she wholly dismissed the Trump campaign’s new strategy of mini-rallies and hyper-focused press events in an effort to rein in the bloviating populist’s affinity for rambling, ad hominem attacks on Harris, which don’t seem to be doing him any favors with voters.

“I imagine he will do some of them, and maybe for a week he’ll, you know, attempt to stay on message,” Grisham told CNN . “It depends on how tough his staff is being with him, but he will get bored. He doesn’t like those small events; he never has. And he will be demanding to do a large rally sooner rather than later.”

“They want him to be a fake version of himself,” she added. “Donald Trump is a bombastic narcissist, and he loves attention.”

news analysis

‘I Am the Only Person Stupid Enough to Speak After Michelle Obama’

So said former President Barack Obama after his wife electrified the Democratic National Convention. The delegates loved him, but they really loved her.

Former President Barack Obama at the Democratic National Convention in Chicago. Known as one of the most eloquent orators of the modern era, he had never before faced the challenge he confronted Tuesday night. Credit... Kent Nishimura for The New York Times

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By Peter Baker

Reporting from inside the United Center in Chicago

• Aug. 21, 2024

Whoever set the schedule for the second night of the Democratic National Convention certainly did Barack Obama no favors. As the former president admitted when he took the stage on Tuesday night, “I am the only person stupid enough to speak after Michelle Obama.”

Not to say that the Democrats gathered in the United Center in Chicago were unappreciative of their onetime favorite son. Mr. Obama delivered the kind of rousing yes-we-can speech that 20 years ago vaulted him from obscurity toward the White House. But following Mrs. Obama? He has demonstrated better judgment.

The his-and-hers marquee convention speeches by the 44th president of the United States and the former first lady fired up the partisan crowd. Speaking back-to-back over the course of an hour, the Obamas reminded Democrats of a past era of hope and change while electrifying a convention after a ceremonial roll call nominated Vice President Kamala Harris for president and Gov. Tim Walz of Minnesota for vice president.

But while the delegates loved Mr. Obama, they really loved Mrs. Obama . From the minute she entered to Stevie Wonder to the end when she introduced her husband, she had the hall wrapped in her hand. No wonder Mr. Obama did not want to go next. No wonder former President Donald J. Trump over the years has repeatedly expressed a feverish worry that the Democrats would turn to Mrs. Obama as their next nominee in some kind of bizarre conspiratorial plot.

From the stage at the United Center on Tuesday, Mrs. Obama eviscerated Mr. Trump as a product of “the affirmative action of generational wealth” who nonetheless enjoyed the “grace of failing forward” while moaning that he was somehow a victim. She described him as a racist and misogynist who exploited fears and lies, a huckster and a hatemonger still playing “the same old con game” on America.

“If we bankrupt a business or choke in a crisis, we don’t get a second, third or fourth chance,” she said. “If things don’t go our way, we don’t have the luxury of whining or cheating others to get further ahead. No. We don’t get to change the rules so we always win. If we see a mountain in front of us, we don’t expect there to be an escalator waiting to take us to the top.”

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Headlined by speech from Jerome Powell, Fed's Jackson Hole symposium set to begin

Central bankers from around the world fly into Jackson Hole, Wyoming, this week to attend what has become the globe's premier economic gathering, the Kansas City Federal Reserve's annual symposium in Grand Teton National Park.

The event draws keen investor attention, and – depending on what the world's most influential monetary policymakers say in formal remarks and in interviews on the sidelines – sometimes delivers a rough ride for markets.

Here is a guide on what to expect and why it might be worth paying attention to.

Hawks and doves

In recent years the guest list of about 120 has included most of the Fed's 19 policymakers, and a few dozen central bankers from Europe, Asia, Africa, the Americas and elsewhere.

Also joining are several dozen economists and officials from academia, government and international organizations as well as the Fed and a few financial institutions, and a cadre of journalists.

Details on each year's attendees and the agenda are closely held until Thursday evening.

A bear and a bunch of papers

The program typically begins Thursday with a dinner served beneath antler-decorated lights at the historic Jackson Lake Lodge. Attendees entering the private dining room pass by a preserved grizzly bear in the lodge's public lounge, which boasts an expansive view of the craggy Teton Range.

The conference goes until midday on Saturday and largely consists of discussions of a series of academic papers. This year's theme is "reassessing the effectiveness and transmission of monetary policy."

Wonkish vibe notwithstanding, many participants make time for a hike – not of interest rates, but of the kind that involves circumnavigating a mountain lake – and some deck themselves out in cowboy boots and other western wear.

Action in Jackson

The marquee event is Fed Chair Jerome Powell's speech Friday morning.

Investors hope he will give a clearer steer on whether he feels inflation has cooled enough to justify an interest rate cut next month, and if his worries about a rising unemployment rate could make that first reduction in borrowing costs a big one.

Most analysts expect the former and not the latter, but as Deutsche Bank economists note, "it will be difficult for Powell to pre-commit to a particular trajectory at Jackson Hole." Powell has pledged to be data-dependent, and there is lots of economic data before the Fed's September 17-18 meeting.

Stock shocks

Big market moves during the Jackson Hole symposium aren't common, but they do happen.

The S&P 500 .SPX index lost 3.4% on the day in 2022 when Powell warned that taming the highest inflation in decades could bring pain to households and businesses, a pain that for the most part has not materialized even as inflation has dropped substantially.

The 2.6% decline in the S&P 500 index the day Powell spoke in 2019 owed less to his remarks than to a rapid escalation in U.S.-China trade tensions.

Then-Fed Chair Ben Bernanke helped deliver two Jackson Hole stock rallies. In 2009 he forecast – wrongly as it turned out – an imminent return to global growth after the Global Financial Crisis, and in 2010 promised the Fed would step in with additional bond buying if needed, as it eventually would. The S&P 500 index rose 1.8% the day Bernanke spoke in 2009, and 1.6% a year later.

Jackson Hole speeches can leave a mark even when the stock market barely budges.

In 2020 Powell signaled the U.S. central bank would no longer raise interest rates solely in response to a stronger-than-usual labor market, a remarkable shift from the Fed's historical eagerness to act early to head off inflation. The S&P 500 index rose 0.2% on the day.

The Kansas City Fed has held its yearly symposium since 1978. Its initial focus was agriculture, but after a few years the organizers decided to broaden the meeting's scope and try to attract bigger names.

In 1982 they moved the meeting to its current location to entice then-Fed Chair Paul Volcker, a devotee of flyfishing, to join.

It worked – Volcker showed up to the opening dinner still in his fishing gear.

Alan Greenspan, who led the Fed from 1987 to early 2006, began in 1991 what is now the annual symposium's hallmark – an address by the leader of the world's most influential central bank.

More From Forbes

‘dustborn’ review: a political adventure rewarding patient, open minds.

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'Dustborn' needs patience and an open mind, but if you don't have either, what's the point in trying ... [+] a new game?

Dustborn is among the most unrepentantly liberal and left-leaning games out there. If you’ve spent 20 seconds glancing at YouTube comments or social media, you’ll probably already know this–hundreds of people disavowed it without even playing it. Such is 2024, and once again, it’s a shame–there’s a lot to like in this odd escapade.

On a fundamental level, Dustborn has refined and nearly perfected the classic Telltale Games episodic graphic adventure formula , admittedly ten years after it was at the height of its popularity. It takes time to build momentum, but once you get to grips with everything offered by this cross-country, near-post-apocalyptic tale, you’re in it for the long run.

However, even if you fall within its clear target audience, Dustborn ’s jarring start, odd mechanics, and weird characters raise some strong early opinions, and it has a few missteps along the way. On a fundamental level, developer Red Thread Games has created something that’s an exercise in patience–not just to get into it, but to enjoy the experience as intended.

Road trippin’ with your three favorite allies

Dustborn kicks things off in medias res, as you, Pax–a 30-something con artist and mutant lite “Anomal” with the ability to weaponize language–nurse a gunshot wound after a semi-successful heist. You’ve secured an important USB drive in the 2030 nation-state of Pacifica–this universe’s California–and you must get it to Nova Scotia.

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Things are different here; it’s implied the timeline diverges from ours at Deeley Plaza in 1963, when Jackie O, rather than JFK, was assassinated. Kennedy takes Marilyn Monroe as a second wife, and together they turn it into a semi-fascist state filled with law-enforcing robots, tearing the union apart along the way, giving rise to supercharged versions of modern-day sub-cultures and groups. Neat!

It's almost like a U.S. politician has developed a cult of personality

As Pax–one of four initial misfits–you can use your vocal talents to make people feel terrible about themselves (“it’s like negging but more brutal”). Noam, your former lover, gaslights people to make them feel better (a “verbal tranquilizer”). Sai, the artistic, self-critical, and overtly sweary team brute can make literally make herself as strong as a rock. Then there’s Theo, a normal dude with no powers, but a thoroughly nice chap and potential dad of the group. Together, you cross a divided former U.S. masquerading as a punk rock band, combining chat, rhythm-action music sections, and a few fights.

From the first moments you ride along the highway, Dustborn is immaculately presented. Cameras are fluid but settle into cleverly curated fixed positions, allowing you to direct your evolving conversations through excellent, regularly adapting angles, like any classic single-camera sitcom setup. It’s just as well– Dustborn revels in chat, whether you want to or not.

Camera angles are perfectly prepared; they're a Dustborn KSP all of their own.

Finding your voice

Early conversations feel basic at best–good and bad decision-making is too binary, meaning you’re either calm and collected, or a dick. However, stick with it: this is Dustborn ’s slightly heavy-handed tutorial explanation of chat mechanics and your own abilities. You can time your conversations, choose safe answers, or run roughshod over your friends with your angry vox ability whenever you like–not that you will, because it’ll make you feel awful.

However, conversational dynamics unfurl at a dramatic pace as you work through the first two chapters, and begin to trust your judgment. Some chats add or remove response options with time; elsewhere, things are best left unsaid, even as Dustborn appears to imply you should talk. Skipping dialogue isn’t an option, either, but it makes you appreciate that this is meant to be all about words rather than actions. Sure, some sections can drag, but you feel compelled to get the most out of every conversation you can, even if your approach ends up making things worse.

Your choices influence your compatriots to fall into one of three dominant traits, which you can keep track of–important if you want to know how best to approach them ahead of another big discussion. It’s not clear if or what you want these to be, but you get a feel for the traits you like as the chapters develop.

Theo felt mostly like my buddy, but you can understand those who might want him as their boss. Or ... [+] daddy.

Interactions are surprisingly delicate and carefully arranged, backed with absolutely superb voice acting–Dominique Tipper and Safiyya Ingar as Pax and Sai, respectively, are standouts–but the cast is occasionally let down by dodgy dialogue. You might immediately want to take it out on the characters being unlikeable in different ways, though that’s kind of the point, as they have their imperfections, but it occasionally feels like Dustborn doesn’t fully trust your intelligence.

Slapped with a brick

If you’ve got underlying messages you want to convey, you must trust in subtlety–it goes a long way–and this is especially true for Dustborn . It rightly wears its heart on its sleeve, but still has a habit of mishandling strong allegories by spelling them out for you, to the point you can feel a little patronized. Given its obvious audience, it’s far from ideal.

Early in the game, after you recover the potentially world-changing, Tamagotchi-like “Me-em” that becomes one of a few core tools in the game, you begin to encounter Echoes. These disembodied, angry voices spew bile about conspiracy theories, mutilation, fears of atypical people, and more. Echoes invisibly hang in the landscape but can be heard by people, influencing their behavior or can even take over their minds to the point of inflicting mental illness. It’s a spectacular visual metaphor for social media, and this is communicated with the perfect level of nuance.

That is, until you explain this phenomenon to Sai, who almost shrugs at the notion and immediately says “ah, like social media!” Great, thanks, satisfaction ruined there. When you suck the Echoes into your Me-em–in a move like the Proton Pack from Ghostbusters –you’re reminded that “it’s like ghostbusting!” OK, we get it, you need to be certain we’ve made that connection. This happens more often than you’d hope, and each time, the happiness you glean from interpreting things independently is flushed out to the tune of The Price is Right ’s losing horn .

Changing it up

For all the highs and lows of its conversation-heavy core experience, Dustborn nicely mixes things up with other elements that add a bit of spice, and contribute to refining the episodic adventure format that needs more to carry itself through the 2020s.

It takes a bit of getting used to being a fake band.

Firstly, the rhythm-action sections, which involve your band pretending to be musicians, is a nice touch and nicely responsive–though the oddly-placed and angled crosshair and super move inputs make it initially hard to follow. It helps that the original soundtrack is solid, and the songs are consistently worked into the wider story, giving more exposition along the way.

At the end of the first chapter, combat is introduced, arming Pax with a baseball bat as she takes on a bunch of Horned Riders, introducing a whole Borderlands gang element to proceedings. It’s not perfect–my first two fighting segments glitched significantly–but these sections incorporate easy-to-understand dodge and attack mechanics with upgrades, voice abilities, team play, timing, and further storytelling after each bout. Don’t like it? After your first skirmish, you can choose if you want more or less combat for the rest of the game, which is a great touch.

The fighting sections might not be to everyone's tastes, but they're pretty fun.

There’s also a gamification of conversations through collected items. You regularly come across team-friendly trinkets when you’re exploring, but you can’t just make someone happy again by gifting it to them–it’s all about the right time and place. If you hit the sweet spot by handing something over at the right time with Sai, Theo, or Noam, you unlock new dialog and backstory. It makes you appreciate the craft behind the dialogue even more; you might feel condescension in certain parts of the storytelling, but you feel thoroughly rewarded when you get this right.

Wait and see

Dustborn gets better, and feels more rewarding, as you play it. Its dodgy opening chapters will return double what you put into it, with a nicely evolving story and character development–even if so much lore and exposition is left on the table. Maybe Dustborn 2 will help us understand this weird, warring vision of the U.S. in 2030 (unless real life does it first, *massive hopeful satire klaxon*).

If you have an open mind and you’re willing to give it time to grow, Dustborn is a fun trip, even if it occasionally feels like it’s trying to be a bit too edgy for its own good–especially for the type of people who will immediately click with its socio-political outlook. Of course I know them–they’re me .

It’s not trying to be The Walking Dead: A Telltale Series or Um Jammer Lammy or Devil May Cry or Oxenfree ; Dustborn really is its own thing, and the fact Quantic Dream is giving indie developers like Red Thread Games this platform to be exactly what it wants to be is absolutely fantastic. Those who refuse to play it on principle don’t know what they’re missing. Dustborn might need patience and an open mind, but if you don’t have either, what’s the point in trying something new?

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