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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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