General Question

JonnyCeltics's avatar

US law doesn't prohibit hate speech, as it's under the protection of the 1st amendment. Can you argue against this?

Asked by JonnyCeltics (2716points) March 4th, 2012

Outside of obscenity, defamation, incitement to riot, and fighting words, hate speech is a form of free expression and speech, thus protected by the 1st amendment.

Can you think of reasons why it shouldn’t be protected….?

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40 Answers

XOIIO's avatar

It can’t be not allowed, otherwise everything in the list of amendments or whatever you guys call it could be manipulated, twisted and seen as false, and it would all be pointless.

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Lightlyseared's avatar

So what you’re saying is that its permitted except when it isn’t?

MollyMcGuire's avatar

The First Amendment is U.S. Law—it’s the Constitution. Hate speech that is likely to incite violent acts is not protected speech under the First Amendment.

As to your last question, no, it should be protected. We all should have the right to speak out against our government, and if that includes saying you hate something about the government, so be it—that is and should be protected speech.

JLeslie's avatar

I can’t find a reason to prohibit by law, but I think employers have a right to prohibit it on their premises, probably I would agree with networks censoring it, etc.

cazzie's avatar

when I found out about ‘fighting words’ I just fell in love with who ever made the whole thing up. ‘Them’s fightin’ words, young whipper snapper.’

mattbrowne's avatar

Most European countries prohibit hate speech. Here’s a good overview of various countries

The United States is an exception and laws prohibiting hate speech are seen as being unconstitutional.

So what are the arguments against hate speech? To me the main argument is this:

Hate speech is a form of violence, i.e. verbal violence / verbal abuse.

A slap in the face is illegal. Most forms of hate speech actually create more anguish and hurt than a slap in the face.

CaptainHarley's avatar


Then lots and lots of Europeans must have very thin skins indeed.

JLeslie's avatar

@CaptainHarley I would think Europeans are worried about the slippery slope. My guess is these laws are post WWII, but @mattbrowne would have to confirm that, I am just hypothesizing. We, in America, need to see the encitement of a riot at the moment of the speech for it to be unlawful, but hate speech can be incidious, not so evident at the time of the speech the affect if is having on some parts of the population. I still support freedom of speech the American way, but I can understand the arguments for outlawing such speech.

cazzie's avatar

The US does have ‘fighting words’ which means, if you keep making use of your 1st Amendment right to berate and belittle a person, be prepared to have your ass kicked justifiably. Shouting at a gay person in a bar and calling them names might be his 1st Amendment right, but he can’t go crying to Joe Lawman when that gay guy comes and punches him in the face. (or am I completely misinterpreting it?) I think we had a discussion about this in a another thread and that’s how I became aware of the ‘fighting words’ legislation. I think we were talking about the racist woman on the underground in London yelling at all the people on the train who she saw as ‘Non-English’. Remember that one?

rooeytoo's avatar

Free speech is free speech. When you start legislating that free speech includes such and such but excludes such and such, it is no long free, it is free with legal strings attached. I have the same thoughts about verbal “bullying” how can you legislate against it without infringing on the right to free speech. There was recently a question dealing with another aspect of free speech and most were enraged by the infringement. I don’t like any of these muddying the waters. I would rather see the waters muddied on a tangible amendment such as the right to bear arms. Note to NRA members, I said muddied, being altered to a degree, not rescinded.

MollyMcGuire's avatar

@cazzie I believe you love your Supreme Court.

MollyMcGuire's avatar

@rooeytoo You are wrong. Unfettered free speech would be ridiculous. There has, for many many years, been restrictions on time, place, and manner of protected speech. Content is very very rarely restricted. The government must have a compelling reason to attempt to regulate the content of protected speech.

MollyMcGuire's avatar

@cazzie Fighting words has nothing to do with someone invoking another to fight with them. That is not a First Amendment issue. In criminal law it might be call for a provocation defense.

Fighting words as a First Amendment issue is when a speaker uses words to incite others to become violent, such as a public meeting, protest, demonstrations, etc.

cazzie's avatar

@MollyMcGuire—— love ‘my’ Supreme Court? I have no idea what that means. I live in Norway.

I am surprised that no one has mentioned yet that it is illegal to burn the US flag on US soil. Is that law still on the books? There is an infringement on 1st Amendment rights and one that seems incredibly odd when considering what sort of stupidity and verbal abuse, torment and lies are supported by the 1st Amendment.

cazzie's avatar

I agree with @mattbrowne on this one. I guess living in places where hate speech became a dogma and overran nations has an impact on one’s psyche. I don’t think that makes us thin skinned. I think that makes us sensible. When we said ‘Never Again’ we meant it.

MollyMcGuire's avatar

@cazzie I thought you said you loved the term fighting words and didn’t know who came up with it. I cannot find that now so either it was moderated or I was spaced out.

It is not illegal to burn a U.S. Flag—that is protected under the First Amendment both as speech and expression.

cazzie's avatar

As far as I know, the ‘Fighting Words’ statues have never been held up in the US Supreme court. In fact, many fail at State Level. Here:

You can see that the statute / doctrine began as early as 1942 with the first case example here in New Hampshire. It was not something ‘invented’ but the US Supreme court.

MollyMcGuire's avatar

@cazzie That’s what I told you cazzie—that’s why I said you love the Supremes if you love the words “fighting words.” I don’t need coaching in Constitutional Law—that’s my field. Fighting words statues are the result of the Supreme Court decision written by Justice Murphy in 1942.

cazzie's avatar

@MollyMcGuire I’m not following the logic. I LIKE the whole ‘fighting words’ restriction thing but the US Supreme court doesn’t. Why would that lead me to love the Supreme court? and then, if it is your field, perhaps you can ‘coach’ us. wtf.

@everyone_else There was a time when they were trying to prosecute people who were burning flags. This I remember. I guess those prosecutions didn’t succeed if they were brought right through the legal system to higher court…. Let’s see if a non-american resident, non-specialist in Constitutional Law can find an example:
TEXAS v. JOHNSON, 491 U.S. 397 (1989)
‘During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson’s burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity.’

SO, people have been charged and tried and found guilty in lower courts of desecrating the flag and ONLY upon appeal are the charges overturned.

They tried to pass an amendment to make flag burning and desecration illegal. It lost by just ONE vote? Wow. So, nearly, on a National level, were they going to make this an exception to the 1st Amendment.

So, @MollyMcGuire, you want to correct any factual errors or add to the discussion with your expert-i-ness?

JLeslie's avatar

@cazzie You are confusing me too. The law of the land is fighting words don’t allow people to hit each other, and it is legal to burn the US flag. It seemed you were saying those are legal. But, what you are saying is it was enforced in some states, is that right? States make up bullshit laws against the constitution and federal law all the time. Drives me crazy. Was that your point to begin with? Every once in a blue moon the state is decided to be correct by the supreme court, but I would bet statistically they are usually found to be wrong. I really don’t know the statistics though. The biggest problem with the system is someone has to challenge the law to get it removed, which can sometimes mean the law in the state is on the books for months and years.

cazzie's avatar

Yes, @JLeslie, I meant that some people have been arrested and charged and convicted in some courts for burning the flag. Are there any convictions for this that still stand and weren’t brought to appellate court on a State or National level to be overturned? How many people have that conviction still on their record, or is it standard practice to appeal all such convictions and get them overturned, or does that cost money, so only those who can afford it get that justice?

Yes, that is exactly what I am saying. Constitutional arguments are one thing, but a local judge with local ordinances is another, with both ‘fighting words’ and burning the flag. People are arrested, charged and convicted. Whether each and every case is finally overturned due to a persons Constitutional 1st Amendment Rights on a federal level is another matter, isn’t it?

JLeslie's avatar

@cazzie For the individual who suffered consequences they should not have according to the constitution, sure it matters for that person. But, as a country, the federal law is what matters, it is what matters as a representation of the country as a whole. Just because we have some idiots trying to go against the constitution in small towns and backwards states does not really add up to being able to say the United States jails people for flag burning, because that implies a national law and national support. I realize it is factual in one way, because places in the US have done it, but it really does not convey the whole truth.

cazzie's avatar

‘The First U.S. Supreme Court Ruling on Flag Desecration (1907):

Most early flag desecration statutes prohibited marking or otherwise defacing a flag design, using the flag in commercial advertising, and showing “contempt” for flag in any way—by publicly burning, trampling on it, spitting on it, or otherwise showing a lack of respect for it. In Halter v. Nebraska (1907), the U.S. Supreme Court upheld these statutes as constitutional.

Federal Flag Desecration Law (1968):

In 1968, Congress passed the Federal Flag Desecration Law in response to a Central Park event in which peace activists burned American flags in protest against the Vietnam War. The law banned any display of “contempt” directed against the flag, but did not address the other issues dealt with by state flag desecration laws.’

OK, Now I see where I got confused. I left the US in 1988. The Federal law changed in 1989 with the case from Texas that I quoted above. You see, BEFORE 1989, it was upheld at a Federal level that the flag burning ordinances were actually upheld by the Supreme court. While there were some other changes accepted around 1974, the actual burning of the flag wasn’t upheld as a 1st amendment right until 1989.

Hm… I think I just learned something. I guess the 1st Amendment protections are changing as time goes on and society changes.

Thomas Jefferson wrote, “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

mattbrowne's avatar

The history of hate speech laws is a very interesting question. I’ve actually never researched the issue. In the case of Germany, of course, there were dramatic changes after the end of the Third Reich. So what about the history of these laws in other European countries? Here are two examples:

“In France ‘La loi du 29 juillet 1881’ guarantees freedom of the press, subject to several prohibitions. Article 24 prohibits anyone from publicly inciting another to discriminate against, or to hate or to harm, a person or a group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap.”

“In England, Wales, and Scotland, the Public Order Act 1986 prohibits, by its Part 3, expressions of racial hatred, which is defined as hatred against a group of persons by reason of the group’s colour, race, nationality (including citizenship) or ethnic or national origins.”

@cazzie – Do the Norwegian hate speech laws predate WWII?

@CaptainHarley – I don’t think this has to do with thin skin. People can still verbally attack each other and disagree with each other.

cazzie's avatar

Well, @mattbrowne, I don’t know that much about the hate speech law here in Norway, but I’m sure it got some special attention after WW2. I did learn something interesting about what the American Embassy tried to do here in Norway after an incident. Norway has some ‘anti-flag burning’ legislation on the books. During the course of an act put on for satirical and humorous purposes, a well known comedian burned an American flag. It wasn’t on American soil and it wasn’t while protesters were chanting ‘down with America’. But, the American Embassy officially went after the comedian and hired lawyers and the whole nine yards trying to get him charged with the crime of burning the US flag. Hmmm…. That stunk of hypocrisy. Charges were never brought.

rooeytoo's avatar

Guess he should have burned a Norwegian flag instead, then the American embassy would have had nothing to get upset about. The locals could have gone after him if they found it disrespectful and disloyal instead of amusing.

mattbrowne's avatar

@cazzie – Sad. Well, if the American Embassy officially went after the comedian they are no better than angry Muslim fundamentalists outraged by cartoon drawings. I’m against flag burnings and cartoon drawings because it can hurt people’s feeling. But I’m also against making a big deal out of it. Hiring lawyers in such cases is really stupid. A sign of primitive mindsets.

cazzie's avatar

@rooeytoo ‘The Locals’ saw it for what it was. Not a political statement. Not done in hate. He was delivering a comedic monologue with a US flag in the background and it ‘accidently’ catches fire from a lit candle. He carries on and doesn’t react while it is burning up behind him. The American Embassy found this most upsetting. I am looking for a youtube video of it and I can’t find one. Sorry. Perhaps you can find it. The comedian’s name is Otto Jespersen. You may know him as…. The Troll Hunter.

And, as an aside to the matter, the laws may be on the books, but the last time someone in Norway was arrested for burning a flag was 1933. The flag was a Nazi flag, so… who loves irony? Even when it is bitter, like dark chocolate, I enjoy it.

rooeytoo's avatar

Well I guess you have to number me among the primitive mindset types. I find it to be extremely disrespectful and not funny. As for the comedian, I think if he wants to burn a flag he should burn the one from his own country (or from a country that doesn’t have a primitive mindset like the good ole USA.)

mattbrowne's avatar

I agree that it’s disrespectful as a political statement. The question is how to react to such disrespect. Calling lawyers and making a big deal out of it seems pretty stupid to me. Especially when we’re talking about a comedian.

Over the last few weeks Greek protesters have burned dozens of German flags. They were not comedians. Many Germans found it disrespectful, including me. No one called any lawyers. No German politician made a big deal out of it. And to me that’s the mature way to handle it. Think about it.

rooeytoo's avatar

I always try to think before I speak, thank you very much. Burn your own flag if you find it amusing, leave mine alone.

mattbrowne's avatar

I would never burn a flag. I have repeatedly pointed out that I find it disrespectful, not amusing. You and I seem to disagree about the appropriate reaction should any flag burning occur. I respect that your reaction differs from mine and I hope that you can respect that my reaction differs from yours.

rooeytoo's avatar

Oh dear, I have the utmost respect, I was wondering if you did. Telling me to “think about it” doesn’t really seem particularly respectful towards a differing opinion.

cazzie's avatar

@rooeytoo I think it was a translation and inflection problem. @mattbrowne doesn’t do that smart-ass American-toned ‘think about it’. He meant it with a sincere concern. He wasn’t being a smart ass.

rooeytoo's avatar

@cazzie – I wouldn’t think @mattbrowne needs or actually would want you to speak for or defend him. I personally think all humans do “smart-ass American-toned.” I have heard it in every country I have lived or traveled.

So thank you for your anti-american comments once again. Since @mattbrowne is also criticizing america’s response, it is no wonder you are defending him.

Bottom line is, I don’t really care what you and matt think about me and my opinions pro or anti american, I simply do not like having people continue to tell me how wrong I am for having a differing opinion. So as long as you and he feel the need to repeatedly correct my postings, I will continue to say what I think as well.

cazzie's avatar

This has nothing to do with ‘pro’ or ‘anti’ American. It is the response of some people, of all nationalities, not all Americans. Get the knee down and the foot out of your mouth.

augustlan's avatar

[mod says] Flame off, folks. No need to make this so personal. Let’s get back to the original topic.

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