“Hate speech is not free speech” is a common refrain in debates over the protections and limitations of the First Amendment. Most hate speech, however, is decidedly protected by the First Amendment and the Supreme Court’s past verdicts. In order for hate speech to be unprotected by the Constitution, the speech must be accompanied by a “true threat.” The definition of a true threat was established in the 1969 Supreme Court decision of Watts v. United States, in which an 18-year old student made — what some claimed — was a threat against President Lyndon B. Johnson at a political rally. The Supreme Court declared that this student’s statement was in fact just a crude political hyperbole to express opposition against the President and not a legitimate threat that would have been realistically carried out. In most cases, the Supreme Court has allowed hate speech to remain protected under the First Amendment as long as it is not paired with a true threat.
However, hate crimes have risen exponentially in recent years, which many have attributed to President Trump’s bigoted comments and past encouragement of violence. These threats have become a disturbing new normal for the United States and ought to be reined in. One approach to curb this incitement is the implementation of laws that limit hate speech, as has been done in European countries. There is always the risk, however, that limitations on speech may be manipulated to suppress the voice of the people. Instead of proactively legislating speech, the definition of a true threat ought to be expanded to include aggressive hate speech.
There is no denying that President Trump has awakened a bigoted beast that the many Americans thought no longer existed (though targeted minorities have remained intimately aware of the hate America still harbors). President Trump has verbally attacked multiple groups and advocated for violence against his opposition at the hands of his supporters. He has generalized Mexicans immigrants as “criminals and rapists,” painting the entire community as a source of danger and misery for Americans. He has talked to his base about harming protesters, suggesting “punching them” or “roughing them up,” ultimately advocating for the forceful suppression of any who oppose him. While the targeting and killing of individuals based on their identity happened before the 2016 election, it is likely that such rhetoric has contributed to an increase in hate crimes.
While Watts v. United States deems political hyperbole to not be a true threat, the comments of President Trump and his followers often are realistic threats. Watts said that if drafted, he would use his gun on President Lyndon B. Johnson. While this statement is violent in language, the defendant never intended to do so and he also admitted he would not be drafted as well. In this scenario, Watts was not advocating for the assassination of a U.S. president, but rather expressing opposition to violent foreign wars ordered by leaders who would never feel the consequences of the bloodshed they create. While crude, this political message was never serious and never inspired other acts of violence.
But the vile hate speech of today is not like Watts’s speech. Today, accusing immigrants of being dirty, diseased criminals is considered to be “discussion” about immigration reform. Aggressively berating a person for their race is seen as “telling it how it is.” Americans have been accused of “disloyalty” to their religious beliefs, which has escalated to being singled out and threatened. These are not mere political opinions. They are intertwined with assaults on American citizens.
While it is increasingly argued that hateful comments are not true threats but rather political statements, they are not mere insults or abstract fears. They result in real, predictable violence. A man in Portland, Oregon, who stabbed two people on a train, shouted “free speech or die” in his court appearance as he cited his stabbing as justified under the First Amendment. Just moments before the recent shooting in El Paso, TX, a manifesto was published online. Under the First Amendment, this manifesto would be protected even though it resulted in violence. After the Tree of Life shooting in Pittsburg, anti-Semitic Google searches spiked dramatically, and the resulting fear within the American-Jewish community has caused some to decide to not display a Menorah during Hanukkah.
“Speech” such as these examples are true threats to many and it inspires similar comments and violence in others. It is clear how this language affects targeted communities. It diminishes their sense of safety and their participation in society. This speech has the potential to create a true threat and those who engage in such “technically legal” speech that fosters violence should not be unequivocally protected by the First Amendment.