Hate speech is not a legal term of art.
In everyday speech, we tend to use the term
"hate speech" to refer to speech that conveys
hateful or discriminatory or stereotyped ideas
on the basis of factors such as race, religion,
gender, sexual orientation, and so forth.
On some college campuses, the word Trump,
after Donald Trump was elected president,
was attacked as hate speech.
Some people have attacked Black Lives Matter
as hate speech.
Some have attacked Blue Lives Matter as hate
speech.
Some have attacked All Lives Matter as hate
speech.
Most chillingly to me, on a number of college
campuses, including some that I have visited,
the phrase "free speech" has been attacked as
hate speech.
So, basically, what it comes down to is any speech
conveying any idea that the person using the
term hate speech hates and strongly disagrees
with.
Freedom of speech in the United States today
as a matter of law is greatly protected.
We have a Supreme Court that despite its ideological
diversity and despite the justice's strong
disagreements on many issues of constitutional
law, they are by and large united and have
been for many decades in very strongly protecting
even extremely controversial and unpopular
speech; everything from flag burning to so-called
crush videos, to funeral protests that insult
members of the American military, to hate
speech.
The U.S. Supreme Court has interpreted the First
Amendment to allow government to restrict
speech when the speech directly causes certain
imminent specific harm.
So, for example, if the speech constitutes
a true threat that intends to instill in the
persons to whom it is targeted an objective
reasonable fear that they are going to be
subject to attack, that speech can and should
be punished.
If the speech intentionally incites imminent
violence or if the speech is targeted face
to face, bullying or harassment that impedes
the privacy and freedom of the person to whom
this speech is targeted, that can and should
be punished.
The best argument in favor of regulating hate
speech is when it satisfies the emergency
principle: when it causes directly a specific
imminent, serious harm and there's no other
way to prevent that harm.
The best arguments against regulating hate
speech are that it does more harm than good.
Censorship is completely inconsistent with
individual liberty, equality, and, indeed,
democracy itself.
Censorship does more harm than good to the
very causes that advocates of censoring hate
speech hope to advance.
Those goals are actually undermined through
censorship rather than promoted by them.
Freedom of speech is essential to our democratic
self-government.
Where we the people have the sovereign power,
we cannot exercise that responsively or meaningfully
unless we have access to information about
our government and the opportunity to communicate
with those we elect to represent us and we
cannot hold them accountable unless we are
able to exercise robust freedom of speech,
including the freedom to strongly criticize
government officials and government policies.
If people understood first amendment principles
and the very sensible line that they draw
between hated and hateful speech that is constitutionally
protected and hated and hateful speech that
is not constitutionally protected, they would
be very supportive of those principles.
Those who are advocating on campus for human
rights, and equal rights, and dignity, racial
justice, gender justice, those causes all
depend on very robust free speech protection,
sufficiently robust to extend to speech that
some people would attack as hate speech.
