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8 U. Balt. J. Media L. & Ethics 32 (2020)
Exploring Legal Responses to Hate Speech in the United States

handle is hein.journals/ubjmleth8 and id is 32 raw text is: Exploring Legal Responses to Hate Speech In the United States Caitlin Ring Carlson* Unlike most other Western democracies, the United States provides near absolute protection for hate speech under the First Amendment. Unless expression falls into one of the narrow categories of exception carved out by the Supreme Court, which include fighting words, incitement, and true threats, there are no legal prohibitions against hate speech. However, public opinion on this issue is shifting, causing alarm among free speech advocates and raising questions about the legal responses currently available to address the issue. This article explores these potential responses, which include an anti-hate speech law, a change in the federal threats statute, recognizing group defamation as a tort, and reconsidering intentional infliction of emotional distress as a viable legal response for victims of hate speech. After reviewing the theoretical justifications in favor of and against protecting hate speech, the strengths and weaknesses of each idea are considered in light of existing U.S. jurisprudence. In the end, pursuing intentional infliction of emotional distress claims is identified as the best path forward for individuals intentionally harmed by hate speech. Keywords: hate speech, First Amendment, intentional infliction of emotional distress, group defamation, freedom of expression I. Introduction In the United States, there are currently no legal prohibitions against hate speech, which is a broad and often contested term used to refer to vitriolic expression based on a person's membership in a protected class. The U.S. Supreme Court has from time immemorial, interpreted the speech and press clauses of the First Amendment as strict edicts against government attempts to interfere with expression. Today there are few if any prohibitions of hate speech directed at a group or an individual, regardless of whether it happens in-person or online. Unless expression falls into one of the narrow categories identified by the Supreme Court as unprotected, including incitement, true threats, or fighting words, hate speech is considered legal.1 Recently, public opinion on this issue has shifted, causing alarm among free speech advocates. According to Pew Research Center survey data, 40 percent of millenials are comfortable with limiting speech that is offensive to minorities.2 Although the First Amendment is not designed to protect only the viewpoints of the majority, quite the opposite in fact, it is worth noting that many younger Americans support restrictions on racist expression. It is also important to acknowledge the extent to which U.S. 1 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Brandenburg v. Ohio, 395 U.S. 444 (1969); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Virginia v. Black, 538 U.S. 343 (2003). 2Jacob Pushter, 40% of Millenials OK with limiting speech offensive to Minorities, PEW RESEARCH, (Nov. 20, 2015), http://www.pewresearch.org/ fact-tank/2015/11/20/40-of- millennials-ok-with-limiting-speech-offensive-to-minorities/. UB Journal of Media Law & Ethics, Vol. 8, No. 1 (Spring/Summer 2020) 32

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