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The 3 Rules of Hate Speech and the First Amendment

Episode 2 of Free Speech Rules by UCLA Law Professor Eugene Volokh

Here are three rules you should know about "Hate Speech" and the First Amendment:

Rule 1. The First Amendment protects all ideas–loving, hateful, or in between.

In the United States, "hate speech" is just a political label, like "un-American speech" or "rude speech." Some people use the phrase broadly, some more narrowly–but there's no legal definition, because there is no "hate speech" exception to the First Amendment.

Rule 2. Some speech is not protected by the First Amendment, but that's true regardless of whether it's bigoted or hateful.

For instance, threats of violence are constitutionally unprotected.

Rule 3. Hate crime laws are constitutional, so long as they punish violence or vandalism, not speech.

The law often punishes people more because of why they did what they did. Killing someone for money will get you a harsher punishment than killing them out of momentary anger. Likewise, firing an employee because of his race will get you a civil lawsuit; firing an employee for most other reasons won't.

Written by Eugene Volokh, a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.

This is the second episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of the Volokh Conspiracy, which is hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

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Music: "Lobby Time" by Kevin MacLeod, Incompetech.com
Music: "You Make Me Alive" by The Slants
Wookie Icon by Jory Raphael, symbolicons.com


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  • Diane Reynolds (Paul.)||

    Rule 3. Hate crime laws are constitutional, so long as they punish violence or vandalism, not speech.

    How do you apply a hate crime provision without the speech component?

    killing them out of momentary anger.

    If during momentary anger, I'm screaming "death to all Jews" (and the victim is presumably Jewish) then that manifests the hate crime charge, no?

  • a ab abc abcd abcde abcdef ahf||

    That has always seemed like the typical "conclusion first, path second" justification to me. But the comparison to degrees of murder is counter-confusing. I understand manslaughter for unintentional death, even if I think the boundary is not clear. But planned vs jealous rage is even less clear. If you plan a murder months ahead of time, all that planning is just more evidence that you actually did the murder. If you see your wife kissing a stranger and grab a gun or knife and kill them 10 seconds later, is that 10 seconds premeditated? 30 seconds? An hour?

    Those are all different from, say, not understanding that snow (which you've never seen before) is slippery and your car won't stop very well, which may be different from drunk driving which kills someone when you had never been drunk before.

  • Ben of Houston||

    They are responding to the usual "Hate Crime is thought crime" argument. I've said before that I don't like the concept of policing thoughts. There is a valid point that intent does matter.

    On the other hand, the different levels of murder represent differences in action or situation, not just thought
    Felony Murder: Adding theft to murder. These are separate actions.
    First Degree Murder: Planning to kill someone is meaningfully different and has different actions than the other types.
    Second Degree Murder: You intend to kill someone and do so without planning.
    Manslaughter: You intended to hurt someone, not kill them, but did so by accident.
    Negligent Manslaughter: You did not do something that you should have done which resulted in a death.
    Self Defense: You believe yourself or others to be in imminent harm and kill someone because of it.

    There's more nuance there, true. However, you can see that in all of these (with the possible exception of higher manslaughter with lower murder), there are meaningful differences in action or situation between these levels. With a hate crime modifier, the action can be exactly the same, with the only change being the reasoning behind your intent. That's a far more slippery slope.

    The second problem is that purpose of hate crime laws. Criminal threats are criminal threats no matter their reason. Same with violence. Making some people more equal than others really doesn't add anything.

  • Derp-o-Matic 6000||

    But that's also conflating intent (i.e., was this on purpose vs negligent/reckless, planned vs in the heat of anger, etc) with motivation (i.e., for money, revenge, etc.)

  • ||

    If during momentary anger, I'm screaming "death to all Jews" (and the victim is presumably Jewish) then that manifests the hate crime charge, no?

    "I'm not sure what race you are or if your cultural and habitual idiosyncrasies constitute a race are but I desire death for you and all people like you."

    I got the impression the video was more of an 'is' piece rather than an 'ought' piece.

  • Ray McKigney||

    Correct. EV is describing the current state of the law. That doesn't mean he thinks the current generation of hate-crime statutes are (or are not) actually constitutional.

  • Zeb||

    I suppose the answer would be that you aren't being punished for your speech, but your speech gives some information about the intent behind the crime. I don't think hate crime laws are terribly useful or necessary, and I don't think the feds should be involved unless states are really fucking up. But it's not necessarily (though it could be) contrary to free speech.

  • Liberty Lover||

    A crime is a crime and punishable. Does it really matter why you commit the crime?

  • Bored Lawyer||

    The Supreme Court's answer to this, when it upheld a hate crime law in Wisconsin v. Mitchell 508 U.S. 47 (1993), is that certain motivations can cause more societal harm than others.

    Moreover, the Wisconsin statute singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. [] The State's desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16.

    Or, at least, this was enough to uphold the Wisconsin hate crime law against a Constitutional challenge.

  • a ab abc abcd abcde abcdef ahf||

    I suppose someone thought they could sneak in defense of Nickleback.

    I don't know Nickleback from Adam, but I do know that was sneaky.

  • geo1113||

  • Don't look at me!||

    There is no defense for nickleback.

  • Minadin||

  • operagost||

    Yay, the first person to spell "nickel" properly.

  • ||

    Why are they using a CANADIAN band?

    LEAVE US ALONE!

  • Diane Merriam||

    As I understand it, it not only has th threaten violence, but it has to be a "credible" threat and slander/libel is given a fairly broad leeway for opinion. I am not a lawyer and only took one semester of business law forty years ago, so I am literally asking for clarification.

  • DajjaI||

    Yes it must be credible. Roger Stone's threat against a judge was probably not protected, though he would be lauded a hero here at Reason (and anyone challenging him would be banned and likely get all their comments deleted).

  • Mongo||

    You got banned over your obsessive posting. Post after fucking post.

  • Juice||

    Didn't look like a threat to me, but whatever.

  • LiborCon||

    "These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

    Brandenburg v. Ohio, 395 U.S. 444 (1969) at 447

  • Ron||

    For instance, threats of violence are constitutionally unprotected."

    However if someone is threatening me I can verbally threaten them back as a warning

  • Longtobefree||

    You should make certain statements; not 'threaten back'.
    Statements like "I do not want to fight you".
    And "I am afflicted with arthritis and cannot flee".
    Then when the threats turn to assault, you have established proper grounds for self defense.

  • DajjaI||

    As Nadine Strossen explains, hate speech laws are inevitably targeted against the people they were intended to protect. For example, Weimar Germany had laws against Nazis, and guess what happened next? But more immediately, speech restrictions almost immediately result in outbreaks of violence, though they apparently haven't learned their lesson. People forget, this is why America was founded in the first place - to escape Europe's periodic conflagrations. How ironic that our 'deplorable' 'gun nuts' will be saving their azzes again.

  • loveconstitution1789||

    Rule 3. Hate crime laws are constitutional, so long as they punish violence or vandalism, not speech.

    You left off that most crimes had their mens rea element eliminated, so why does it matter if the defendant committed a crime because the victim was black or because of their religion?

    Either it matter why someone commits a crime or not.

    Its a double standard to protect ever-increasing "victimhood".

  • E Blackadder||

    I understand the theoretical distinction the professor is drawing between one's speech as evidence of one's motivation versus the speech itself being punished. But in the real world, the latter all too often gets blurred into the former.

  • AlmightyJB||

    I support love violence.

  • ducksalad||

    Yeah, love crimes are OK. But love speech can get nauseating in large quantities, maybe that's where we need an exception.

  • AlmightyJB||

    Something needs to be done. For the children.

  • albo||

    Great video.

    Too bad it won't be seen by the untold millions of idiots who need to see it.

  • ConstitutionalDon||

    "Hate Crime" was created so liberals could punish people worse if they harm groups the left favors,
    and punish people less if they harm groups liberals do not much like.

  • Mickey Rat||

    "Hate crime" was create so that progressives could morally preen about punishing bigoted crimes, even if they effectively did nothing to the sentences of the perpetrators. Such as "hate crime" convictions for crimes which would already get the death penalty or life imprisonment.

  • Juice||

    Fake news is a hate crime.

  • Longtobefree||

    Hate crimes, a made up category for political rationalizations, requires the prosecution to prove that they can read the mind of the defendant at a time before they even knew the defendant was a defendant.

    Given that a thief decides to rob the next person they see, is all that separates the robbery from a hate crime to possible race or religion of the random victim?

    So if the thief is black, and the next person along is white, does that make it a hate crime?
    Likewise, if the thief is Muslim, and the next person along is a Jew, does that make it a hate crime?
    At what point in the past does any and all comments made by the thief become relevant? Is a prior statement like "I hate robbing Jews, they never have much money" enough to make the robbery a hate crime? How about just "I hate Jews"? Does reading Malcolm X count as proof the robbery was a hate crime?

    Welcome to the wonderful world of thought crime.

  • Zeb||

    Hate crimes, a made up category for political rationalizations, requires the prosecution to prove that they can read the mind of the defendant at a time before they even knew the defendant was a defendant.

    Is that not also the case with first degree murder? Or any other crime where intent is taken into account? I'm not saying that hate crime laws are a good idea, but it's not exactly novel to take the accused's state of mind and intent into account when determining what crime has been committed and how it should be punished.

  • Mickey Rat||

    As I see it, that has more to do with establishing how intentional was the criminal action. Hate Crime laws are specifically trying to punish the motivation, not the level of intent.

  • Zeb||

    Seems like a reasonable distinction.

  • loveconstitution1789||

    Murder is one of the few crimes left that require intent as an element to prove guilt.

    Imagine if prosecutors had to prove that you intentionally failed to complete stop at a stop sign.

  • Heresy Hunter||

    The problem with hate crime is not that it makes a judgment about whether or not the accused meant to commit his crime. The problem is that it tries to determine the motivating reasons behind his action.

    For example, if john kills joe, the fact that john was seen aiming a gun at joe implicates john more than if he would have killed him in a car accident. John's level of intent tells us what really happened. There is a sharp line between intent and motive because the intent is directly linked to the crime itself.

    It matters that john premeditated murdering joe, but whether he did it because joe was black or just annoying really doesn't matter primarily because it is not within the government's authority to determine the moral difference between the two possible reasons. It should, however differentiate between premeditated murder and involuntary manslaughter, two fundamentally different crimes.

    Like Jefferson said in his letter to the Danbury baptists, the government should never extend beyond judging actions to judging opinions.

  • Juice||

    Rule 2. Some speech is not protected by the First Amendment, but that's true regardless of whether it's bigoted or hateful.

    For instance, threats of violence are constitutionally unprotected.

    Is that what you claim ought to be?

    If someone says, "I'm going to beat the shit out of you, motherfucker!" this should be a criminal offense? The words are mere sound waves produced by a human mouth.

    The sound waves apparently reveal what's going on in the person's mind, so those would be threatening thoughts as well. Maybe those thoughts should also be criminally prosecuted. We have evidence for their existence and they are threatening.

    I'm not saying the verbal threats couldn't be used by the person being threatened to request a restraining order or something like that, or even be used as probable cause for a surveillance or search warrant, but to prosecute the utterances themselves as a crime is a mistake in my opinion.

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