On Shaky Ground: Reconsidering the Justifications for First Amendment Protection of Hate Speech

Abstract

In the United States, hate speech is protected by the First Amendment. This approach differs from most other Western democracies, many of which have enacted criminal or civil laws to punish those who publicly incite hatred toward groups based on their fixed identity characteristics such as race or ethnicity. Traditionally, U.S. jurisprudence and legal scholarship have relied on several discrete theories to justify this approach. These include the marketplace of ideas, political self-governance, personal liberty, the bellwether argument, the safety valve argument, and the reverse enforcement argument. For decades, these theories have been cited as the reasons why the United States allows hate speech. But do they still hold water? Social norms are changing. More Americans are beginning to understand how systems of oppression have shaped our laws and institutions. Young people are more willing now than they've been in the past to accept limits on our right to free expression to promote an inclusive society that welcomes diverse groups. Given these shifting norms, this article asks whether and to what extent each of these theories remains a viable justification for protecting hate speech. The result of this analysis is a comprehensive picture of how these ideas operate in our modern social, political, and media environments. With this clear-eyed view, we can more accurately weigh the potential benefits and drawbacks of our collective decision to protect hate speech in the United States.

Keywords:

• Communication theory
• First Amendment
• hate speech
• marketplace of ideas
• political self-governance

Notes

1 Michael Eric Herz & Peter Molnar, The Content and Context of Hate Speech: Rethinking Regulation and Responses 329–351 (2012).

2 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).

3 Hate speech that rises to the level of incitement, harassment, or true threats is prohibited under the First Amendment. If hate speech is used in conjunction with a hate crime, the crime itself is punished and additional penalties may be leveled if the victim was targeted because of their protected identity characteristics. See, e.g., RCW 9A.36.080.

4 Caitlin Ring Carlson, Hate Speech 2 (2021).

5 See Alexander Tsesis, Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements 30–34 (2002).

6 Danielle Keats Citron & Helen Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, 91 B.U. L. REV. 1435, 1466 (2011); Katharine Gelber, Hate Speech—Definitions & Empirical Evidence, 32 Const. Comment. 619, 622 (2017).

7 See, e.g., Adam Leventhal, Junhan Cho, Nareefa Andrabi, & Jessica Barrington-Trimis, Association of Reported Concern About Increasing Societal Discrimination With Adverse Behavioral Health Outcomes in Late Adolescence, 172 JAMA Pediatrics 924 (2018).

8 College Pulse and Knight Foundation, Free Expression on College Campuses, knightfoundation.org, https://www.knightfoundation.org/reports/free-expression-college-campuses (last visited Sept. 2, 2021). See also Rodney Smolla, The Meaning of the “Marketplace of Ideas” in First Amendment Law, 24 Comm. Law & Poly, 475 (2019), “The reality is that many on college campuses today—students, faculty and administrators—as well as many Americans generally, simply find the order and morality theory a more compelling approach to freedom of speech than the marketplace theory. Some would abandon the marketplace theory altogether and return free speech law to the order and morality theory, lock, stock, and barrel. Others might accept the current division, in which we use the marketplace theory in some societal settings, and the order and morality theory in others, but change the boundary lines, so that the order and morality theory acquires more territory."

9 Alexander Brown, Hate Speech Law: A Philosophical Examination 23 (2015).

10 International Covenant on Civil and Political Rights art. 20(2), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (March 23, 1976).

11 Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law, (2008) Official Journal L328. The European Commission defines hate speech as “incitement to violence or hatred against a group, defined in relation to race, religion or ethnicity.”

12 § 130 of the German Penal Code states “Whoever, in a manner suited to causing a disturbance of the public peace (1) incites hatred against a national, racial, religious group or a group defined by their ethnic origin, against sections of the population or individuals on account of their belonging to one of the aforementioned groups or sections of the population, or calls for violent or arbitrary measures against them or (2) violates the human dignity of others by insulting, maliciously maligning or defaming one of the aforementioned groups” STRAFGESETZBUCH [Penal Code] § 130 StGB.

13 § Section 192a of the German Penal Code states “Whoever allows content (Section 11 (3)) suited to violating the human dignity of others by insulting, maliciously maligning or defaming a group defined by its national, racial, religious or ethnic origin, ideology, disability or sexual orientation or individuals on account of their belonging to one of these groups” STRAFGESETZBUCH [Penal Code] § 132 StGB.

14 In South Africa, § 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 forbids discrimination, as well as hate speech and harassment. In Brazil, statements that offend the dignity of another person. This crime is punishable by one to six months in prison. Additional penalties may be leveled when the offending statements include a reference to race, ethnicity, religion, age, origin, skin color, or impairment. (135C6DIGO PENAL, Lei N' 2.848 (Dec. 7, 1940), Art. 140 § III).

15 Criminal Code of Canada, R.S.C., 1985 c. C-46, (last amended by S.C. 2017, c. 13), s. 318.

16 María Antonia Paz & Julio Montero-Díaz, Hate Speech: A Systematized Review, 10 SAGE Open 1, 5 (2020).

17 Transparency Report, Facebook, https://transparency.fb.com/policies/community-standards/hate-speech (last visited Mar. 6, 2023). Notably, Facebook includes three tiers of attacks in its detailed definition. Tier 1 includes violent or dehumanizing speech, including content that compares people to animals. Tier 2 includes generalizations about the inferiority of a person or group based on their fixed identity characteristics. Calls for segregation and exclusion are included in Tier 3.

18 Hate Speech Policy, YouTube, https://support.google.com/youtube/answer/2801939?hl=en (last visited Mar. 6, 2023). YouTube lists the following as protected categories of identity: age, caste, disability, ethnicity, gender identity and expression, nationality, race, immigration status, religion, sex/gender, sexual orientation, victims of a major violent event and their kin, veteran status.

19 Community Guidelines, TikTok, https://www.tiktok.com/community-guidelines?lang=en#38 (last visited Mar. 6, 2023).

20 Tsesis, supra note 5, at 28–65.

21 Id. at 28.

22 Chris Demaske, Free Speech and Hate Speech in the United States 10 (2021).

23 Gelber, supra note 6, at 620. “Hate speech is expression that materially and substantively harms its targets in the saying of that speech (and not only in terms of a discreet, consequential harm arising from it) … [these] harms are analogous to other discriminatory harms, such as denying someone a service or denying them a job on the ground of their race or other relevant attribute.

24 Brown, supra note 9, at 50.

25 Abraham H. Foxman & Christopher Wolf, Viral Hate: Containing Its Spread on the Internet 50 (2013).

26 Bhikhu Parekh, Is There a Case for Banning Hate Speech? in The Content and Context of Hate Speech: Rethinking Regulation and Responses 37, 41 (Michael. Herz & Peter Molnar eds., 2012).

27 See, e.g., Mika Hietanen and John Eddebo, Towards a Definition of Hate Speech With a Focus on Online Contexts, 1 (2022).

28 Andrew F. Sellars, Defining Hate Speech 24–41 (Berkman Klein Center Research Publication No. 2016-20, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2882244.

29 Carlson, supra note 4, at 4.

30 Paz, supra note 16, at 10.

31 Caitlin Carlson, Hate Speech as a Structural Phenomenon, 54 First Amendment Studies 217, 220 (2020).

32 Id.

33 Mari Matsuda, Charles Lawrence III, Richard Delgado, & Kimberlé Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment 17–25 (1993).

34 Id.

35 Kent Greenawalt, Free Speech Justifications, 89 Colum. L. Rev. 119 (1989).

36 Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, 73 Journalism & Mass Comm. 40, 42 (1996).

37 John Milton, Aeropagitica, in John Milton: Complete Poems and Major Prose 719–722 (Merritt Hughes ed., 2003).

38 Id.

39 John Stuart Mill, On Liberty, in On Liberty and Other Essays 33 (John Gray ed., 2008).

40 Id.

41 Id.

42 Abrams v. United States, 250 U.S. 616 (1919).

43 Id. at 630.

44 See Jared Schroeder, Shifting the Metaphor: Examining Discursive Influences on the Supreme Court's Use of the Marketplace Metaphor in Twenty-First-Century Free Expression Cases, 21 Comm. Law & Poly, 383–430. See also Smolla, supra note 8, at 437.

45 Smolla, id. at 444.

46 See, e.g., Red Lion Broadcasting at 390; Buckley v. Valeo, 424 US 1, 14 (1976); Citizens at 295; CBS v. FCC at 395; FCC v. League of Women Voters, 468 US 364, 377–378 (1984); and Young v. American Mini Theatres, 427 US 50, 60.

47 Hopkins, supra note 36, at 42.

48 See, e.g., Bigelow v. Virginia, 421 US 809, 826 (1975), Gertz v. Robert Welch, Inc., 418 US 323, 339–340 (1974), Time v. Hill, 385 US 374, 388 (1967), Miller v. California, 413 US 15, 36 (1973), Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 US 748, 760 (1976), Texas v. Johnson, 491 US 397, 418 (1989), Red Lion Broadcasting Co. v. FCC, 395 US 367 (1969); Matal v. Tam, 137 S. Ct. 1744, 1762 (2017); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969).

49 C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 974 (1978). See also Alexander Tsesis, Deliberate Democracy, Truth, and Holmesian Social Darwinism, 72 SMU L. Rev. 495 (2019); Jared Schroeder, Toward a Discursive Marketplace of Ideas: Reimaging the Marketplace Metaphor in the Era of Social Media, Fake News, and Artificial Intelligence, 52 First Amendment Studies, 38–60 (2018); Chaim Kauffman, Threat Inflation and the Failure of the Marketplace of Ideas: The Selling of the Iraq War, 29 International Security 5–48 (2004).

50 See, e.g., Jared Schroeder, The Marketplace of Ideas and the Problem of Networked Truths, 54 U. Tol. L. Rev. 27 (2022). See also Daniel E. Ho & Frederick Schauer, Testing the Marketplace of Ideas, 90 N.Y.U. L. Rev. 1160 (2015); Thomas W. Joo, The Worst Test of Truth: The Marketplace of Ideas as Faulty Metaphor, 89 Tul. L. Rev. 383 (2014).

51 Baker, supra note 49, at 974.

52 Jerome A. Barron, Access to the Press: A New First Amendment Right, 80 Harv. L. Rev. 1641, 1641–1642 (1967). Barron, arguing for protection of novel and unpopular ideas, wrote that “if ever there were a self-operating marketplace of ideas, it has long ceased to exist.”

53 Sellars, supra note 28, at 11. Hate speech in the marketplace can exclude, coerce, or frighten some would-be participators because of their affiliation with the targeted group, thus denying them access to the marketplace (as audience or speakers or both). See generally Anita Bernstein, Abuse and Harassment Diminish Free Speech, 35 Pace L. Rev. 1 (2014).

54 C. Edwin Baker, Human Liberty and Freedom of Speech 6 (1989).

55 See, e.g., Safiya Noble, Algorithms of Oppression (2018); Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (2019); Mark Coeckelbergh, AI Ethics (2020).

56 Robert L. Kerr, From Holmes to Zuckerberg: Keeping Marketplace-of-Ideas Theory Viable in the Age of Algorithms, Comm. L. & Pol’y 477, 482 (2019). Kerr argues that today’s marketplace of ideas is dominated by social media and ideas that come from individuals rather than trained journalists, and thus, content-neutral measures directed at algorithmic social media practices must be developed in order to preserve a functioning marketplace.

57 Owen Fiss, The Irony of Free Speech 50–78 (1996).

58 Women’s Media Center, Status of Women in U.S. Media Report 16 (2019), https://womensmediacenter.com/reports/the-status-of-women-in-u-s-media-2019.

59 Id.

60 Fed. Commc’ns Comm’n, DA 20-161, Fourth Report on Ownership of Broadcast Stations (2020).

61 FCC v. Prometheus Radio Project, 592 U.S. __ (2021) (This was the fourth in a series of challenges brought by media activists against the FCC for their failure to adequately address ownership issues, particularly around gender and racial diversity, as well as consolidation. Here, the Supreme Court ruled that the FCC’s decision to remove ownership rules designed to increase diversity was not arbitrary or capricious).

62 Matsuda et al., supra note 33, at 92.

63 Id. at 115.

64 See, e.g., Reports, Women’s Media Center, https://womensmediacenter.com/reports/category (last visited March 7, 2023); Where We Are on T.V. Report, GLADD, https://www.glaad.org/whereweareontv21 (last visited March 7, 2023); Being Onscreen: Diverse Representation and Inclusion on Television, Neilson, https://www.nielsen.com/insights/2020/being-seen-on-screen-diverse-representation-and-inclusion-on-tv (last visited March 7, 2023).

65 That ad became the centerpiece of a landmark libel case, New York Times v. Sullivan 376 U.S. 254 (1964).

66 Jessie Daniels, Race, Civil Rights, and Hate Speech in the Digital Era, in Learning Race and Ethnicity: Youth and Digital Media, 129, 131 (Anna Everett ed., 2008).

67 Tyler T. Reny & Benjamin J. Newman, The Opinion-Mobilizing Effect of Social Protest Against Police Violence: Evidence From the 2020 George Floyd Protests, 115 Amer. Pol. Science Rev. 1499–1507 (2021).

68 The Majority of Public Favors Majority of Public Favors Giving Civilians the Power to Sue Police Officers for Misconduct, Pew Research Ctr., July 9, 2020, https://www.pewresearch.org/politics/2020/07/09/majority-of-public-favors-giving-civilians-the-power-to-sue-police-officers-for-misconduct/.

69 2021–2022 Statistics, Mapping Police Violence (Aug. 15, 2020), https://mappingpoliceviolence.org.

70 Nadine Strossen, The Interdependence of Racial Justice and Free Speech for Racists, 1 J. Free Speech Law 51, 60 (2021).

71 Forty-one people lost their lives in the struggle for freedom during the modern Civil Rights Movement, 1954 to 1968. On average, police in the United States shoot and kill more than 1,000 people every year. Black Americans are killed by the police at twice the rate of white Americans. Between FY 2018 and FY 2021, the Equal Employment Opportunity Commission (EEOC) received a total of 98,411 charges alleging harassment under any basis and 27,291 charges alleging sexual harassment. See Jennifer Jenkins, et al., 1094 People Have Been Shot and Killed By Police in the Past 12 Months, Wash. Post, March 1, 2023, https://www.washingtonpost.com/graphics/investigations/police-shootings-database; Sexual Harassment in Our Nation’s Workplaces, EEOC, https://www.eeoc.gov/data/sexual-harassment-our-nations-workplaces (last visited March 7, 2023).

72 Kim Parker, Juliana Menasce Horowitz, & Anna Brown, Americans Complex Views on Gender Identity and Transgender Issues, Pew Research Ctr., June 28, 2022, https://www.pewresearch.org/social-trends/2022/06/28/americans-complex-views-on-gender-identity-and-transgender-issues.

73 Id.

74 2023 Anti-Trans Legislation, Track Trans Legislation, https://www.tracktranslegislation.com (last visited March 6, 2023).

75 Amira Hasenbush, Andrew Flores, & Jody Herman, Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, UCLA School of Law Williams Institute (July 23, 2018), https://williamsinstitute.law.ucla.edu/publications/ma-public-accommodations.

76 Id.

77 Parental Rights in Education, 2022 Fla. Laws ch. 22 , 2022 Fla. HB 1557.

78 Dustin Jones & Jonathan Franklin, Not Just Florida—More Than a Dozen States Propose So-Called “Don’t Say Gay” Bills, NPR, Apr. 10, 2022, https://www.npr.org/2022/04/10/1091543359/15-states-dont-say-gay-anti-transgender-bills.

79 Track Trans Legislation, supra note 74.

80 See Richard Delgado, Jean Stefancic, & Angela Harris, Critical Race Theory an Introduction (Third Edition) (2017).

81 Peter Greene, Teacher Anti-CRT Bills Coast to Coast: A State-by-State Guide, Forbes, Feb. 16, 2022, https://www.forbes.com/sites/petergreene/2022/02/16/teacher-anti-crt-bills-coast-to-coast-a-state-by-state-guide/?sh=3a2e9ace4ff6.

82 Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 Sup. CT. Rev. 1–4, 6 (2004).

83 Jared Schroeder, Fixing False Truths: Rethinking Truth Assumptions and Free-Expression Rationales in the Networked Era, 29 Wm. & Mary Bill Rts. J. 1097, 1100 (2021), https://scholarship.law.wm.edu/wmborj/vol29/iss4/5.

84 Kerr, supra note 56, at 488–491; Schroeder, id. at 1100.

85 Bobby Allyn, Here Are 4 Key Points From the Facebook Whistleblower's Testimony on Capitol Hill, NPR, Oct. 5, 2021, https://www.npr.org/2021/10/05/1043377310/facebook-whistleblower-frances-haugen-congress.

86 Id.

87 Hate Speech Transparency Report, Facebook, https://transparency.fb.com/data/community-standards-enforcement/hate-speech/facebook/#prevalence (last visited Aug. 24, 2022).

88 Steve Stecklow, Why Facebook Is Losing the War on Hate Speech in Myanmar, Reuters, Aug. 15, 2019, https://www.reuters.com/investigates/special-report/myanmar-facebook-hate.

89 Meg Leta Jones, Silencing Bad Bots: Global, Legal and Political Questions for Mean Machine Communication, 23 Comm. L. & Pol’y, 159, 162 (2018). On March 23, 2016, Microsoft released a chatbot on Twitter named “Tay” with the handle @TayandYou tweeting “hellooooooo world!!!” Microsoft explained, “Tay is designed to engage and entertain people where they connect with each other online through casual and playful conversation. The more you chat with Tay the smarter she gets.” In less than 24 hours in the Twittersphere, Tay became a monster. At 20:32 on March 23 @TayandYou wrote, “@mayank_jee can I just say that I’m stoke to meet u? humans are super cool.” But by 11:41 on March 24 [she] was producing tweets like these: “@NYCitizen07 I f(∗∗∗∗∗∗) hate feminists and they should all die and burn in hell,” and “@brightonus33 Hitler was right I hate the j*ws.”

90 Leon Festinger, A Theory of Cognitive Dissonance 10 (1957).

91 Michael Sülflow, Svenja Schäfer, & Stephan Winter, Selective Attention in the News Feed: An Eye-Tracking Study on the Perception and Selection of Political News Posts on Facebook, 21 New Media & Soc’y 168, 187–190.

92 Id.

93 Schroeder, supra note 83 at 1100.

94 Natalie Stromini Stroud, Media Use and Political Predispositions: Revisiting the Concept of Selective Exposure, 30 Political Behavior 341, 342–344 (2008).

95 Id.

96 Wiktor Soral, Michal Bilewicz, & Michal Winiewski, Exposure to Hate Speech Increases Prejudice Through Desensitization, 44 Aggressive Behavior, 136 (2018).

97 Matsuda et al., supra note 33, at 90–95.

98 Laura Leets, Experiencing Hate Speech: Perceptions and Responses to Anti-Semitism and Anti-Gay Speech, 58 J. Social Issues 350–358 (2002), https://doi.org/10.1111/1540-4560.00264.

99 Id. at 354.

100 Id. at 355.

101 Michal Wypych & Michal Bilewicz, Psychological Toll of Hate Speech: The Role of Acculturation Stress in the Effects of Exposure to Ethnic Slurs on Mental Health Among Ukrainian Immigrants in Poland, Cultural Diversity and Ethnic Minority Psychology, advance online publication (2022).

102 Katharine Gelber & Luke McNamara, Evidencing the Harms of Hate Speech, 22 Soc. Identities 324, 327 (2016).

103 Id. at 329–332.

104 Id.

105 Gelber supra note 6, at 623.

106 David Gillborn, Risk-Free Racism: Whiteness and So-Called Free Speech, 44 Wake Forest L. Rev. 535 (2009).

107 Id. at 536.

108 Id.

109 Examples of human-related words in this study include “people” and “culture.”

110 Mikolaj Winiewski, Karolina Hansen, Michal Bilewicz, Wiktor Soral, Aleksandra Świderska, & Dominika Bulska, Contempt Speech, Hate Speech: Report from Research on Verbal Violence Against Minority 64, 2017), http://www.ngofu nd.org.pl/wp-content/uploads/2017/02/Contempt_Speech_Hate_Speech_Full_Report.pdf.

111 Id. at 119.

112 Id.

113 Matsuda et al., supra note 33, at 90–95.

114 Adam Leventhal, Junhan Cho, Nareefa Andrabi, & Jessica Barrington-Trimis, Association of Reported Concern About Increasing Societal Discrimination With Adverse Behavioral Health Outcomes in Late Adolescence, 172 JAMA Pediatrics 924 (2018).

115 Maria Trent et al., Policy Statement: The Impact of Racism on Child and Adolescent Health, 144 Pediatrics 1 (2019).

116 Soral et al., supra note 96, at 136.

117 Id. at 145.

118 Id.

119 Id.

120 Koustuv Saha, Eshwar Chandrasekharan, & Munmun De Choudhury, Prevalence and Psychological Effects of Hateful Speech in Online College Communities, Proceedings of the 10th ACM Conf. on Web Science 255, 255–256 (2019).

121 See Gordon Allport, The Nature of Prejudice (1954). The research on the harm hate speech can cause children and adults affirms American psychologist Gordon Allport’s 1954 predictions that prejudiced language such as hate speech leads to avoidance and, in extreme cases, might be used to justify acts of discrimination and physical violence. Allport's scale includes five stages: anti-locution, avoidance, discrimination, physical attack, extermination. Anti-locution occurs when an in-group purports negative images of an outgroup. Ethnic slurs and jokes would be considered part of this stage. Avoidance refers to the efforts of in-groups to actively avoid people in the outgroup. Discrimination refers to intentional disadvantages placed upon the outgroup in the areas of education, housing, and finance. Physical attack refers to acts of violence perpetrated against individual members of the outgroups. Extermination occurs when the in-group seeks to eliminate or remove the outgroup through large-scale violence.

122 See, e.g., William Brunstein, The Roots of Hate: Anti-Semitism in Europe Before the Holocaust (2003); David Yanagizawa-Drott, Propaganda and Conflict: Evidence From the Rwandan Genocide, 129 Q. J. of Econ. 1947 (2014).

123 Tsesis, supra note 5, at 2–65.

124 Rebecca Klar, Rohingya Refugees Sue Facebook for $150 Billion, The Hill, Dec. 6, 2021, https://thehill.com/policy/technology/584472-rohingya-refugees-sue-facebook-for-150b.

125 Communications Decency Act, 47 U.S.C. 223, § 230. Section 230 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

126 Klar, supra note 124.

127 Carlson, supra note 31, at 220.

128 J. Daniel Schubert, Suffering/ Symbolic Violence, in Pierre Bordieu 171, 180–181 (2013).

129 Id. at 181.

130 Id.

131 Id. at 182.

132 Matal v. Tam, 137 S. Ct. 1744, 1762 (2017) (“Refusing to confer an even greater benefit, we held, did not upset the marketplace of ideas and did not abridge the union’s free speech rights”); Reed v. Town of Gilbert, 135 S. Ct. 2218, 2234 (2015) (Breyer, J., concurring) (“I also concede that, whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas”); Knox v. Serv. Emp. Int’l Union, Local 1000, 567 U.S. 298, 309 (2012) (“The First Amendment creates ‘an open marketplace’ in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference”).

133 See, e.g., James Weinstein, Participatory Democracy as the Central Value of American Free Speech Doctrine, 97 Va. L. Rev. 491, 502 (2011). (Weinstein observes “One serious problem with the marketplace-of-ideas rationale is that the premise that a completely unregulated market of ideas will lead to discovery of truth is highly contestable. A more profound problem with characterizing the marketplace-of-ideas rationale as a core free speech norm is that it justifies free speech in terms of the good it will produce for society as a whole, not as a true individual right.”) See also Anthony Lewis, Freedom From the Thought We Hate: A Biography of the First Amendment. (Lewis says that in an age where words have inspired acts of mass murder and terrorism, it is not as easy for him as it once was to believe that the only remedy for evil counsels, in [Justice] Brandeis's phrase, should be good ones.) See also Karen Eltis, Hate Speech, Genocide, and Revisiting the Marketplace of Ideas in the Digital Age, 43 Loy. U. Chi. L. J. 267, 270 (2012) (According to Eltis, “new technologies exacerbate some of the difficulties traditionally associated with the marketplace doctrine, especially given the Internet's infinite memory and potential for distorting information, cloaking falsehoods in the guise of truths, and portraying racism as ‘human rights.’”).

134 Alexander Meiklejohn, Free Speech and Its Relation to Self Government 9 (1948).

135 Id.

136 Id. at 10.

137 Id. at 12.

138 Id. at 9. See also Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1, 7 (2000). (Like Meiklejohn, Post linked the importance of speech and speaker participation to political legitimacy in a functioning democracy.)

139 Robert Post, Legitimacy and Hate Speech, 32 Const. Comment. 651, 654 (2017).

140 James Weinstein, Hate Speech Bans, Democracy, and Political Legitimacy, 32 Const. Comment. 527, 531–532 (2017).

141 Ronald Dworkin, Foreword to Extreme Speech and Democracy, vii (Ivan Hare & James Weinstein eds. 2009).

142 See generally Weinstein, supra note 140.

143 Dworkin, supra note 141, at vii.

144 Weinstein, supra note 140 at 529.

145 Id. at 541.

146 Id. at 540. (To the extent that such censorship prevents people from expressing what they believe is best for society, it is insulting; insofar as the speech restriction impairs their ability to promote or protect their own self-interest, it is also fundamentally unfair).

147 Jocelyn Maclure, The Regulation of Hateful and Hurtful Speech: Liberalism’s Uncomfortable Predicament, 63 McGill L. J. 133, 143 (2018).

148 Gelber & McNamara, supra note 102, at 325.

149 Alexander Meiklejohn, Free Speech and Its Relation to Self Government 9 (1948) at 21.

150 Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 256–259 (1961) (Meiklejohn said that words could be punished or banned if damage has been done by them to some individual or to the wider society. Even freedom of speech or press could be limited if and when they were not being used for governing purposes).

151 David Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445 (1987).

152 Sülflow, supra note 91, at 9.

153 Kretzmer, supra note 151, at 255.

154 Id. at 256–257.

155 Gelber & McNamara, supra note 102, at 325.

156 Track Trans Legislation, supra note 74.

157 See Bob Price, Texas Senate Says No to Boys in Girls’ Bathrooms, Breitbart, July 25, 2017, https://www.breitbart.com/border/2017/07/25/texas-senate-says-no-boys-girls-bathrooms.

158 Citron & Norton, supra note 6, at 878–879.

159 Danielle Keats Citron, Hate Crimes in Cyberspace 27 (2014).

160 Id.

161 Id.

162 Raphael Cohen-Almagor, Racism and Hate Speech: A Critique of Scanlon’s Contractual Theory, 53 First Amendment Studies 41, 57 (2019).

163 Id.

164 Id.

165 Id.

166 Id. at 56.

167 Post supra note 139, at 657.

168 Id.

169 See, e.g., Allen Nnanwuba Adum, Ojinime Ebelechukwu Ojiakor, & Stella Nnatu, Party Politics, Hate Speech and the Media: A Developing Society Perspective, 5 J. of Human. & Soc. Pol’y 45–54. (2019).

170 See, e.g., Mirya Holman & Monica Schneider, Gender, Race, and Political Ambition: How Intersectionality and Frames Influence Interest in Political Office, 6 Pol., Groups, & Identities 264 (2018); Angelia Wagner, Tolerating the Trolls? Gendered Perceptions of Online Harassment of Politicians in Canada, 22 Feminist Media Stud. 32 (2022).

171 Katherine Schaeffer, Racial, Ethnic Diversity Increases Yet Again with the 117th Congress, Pew Research, Jan. 28, 2021, https://www.pewresearch.org/fact-tank/2021/01/28/racial-ethnic-diversity-increases-yet-again-with-the-117th-congress. (While only 60 percent of the U.S. population is white, 77 percent of the 117th Congress is white, and only 27 percent of congresspeople are women).

172 Thomas Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 879 (1962).

173 Id.

174 Id.

175 Id.

176 Id. at 880.

177 Id. at 880–881.

178 Baker, Human Liberty 6.

179 See C. Edwin Baker, Autonomy and Hate Speech, in Extreme Speech and Democracy 139 (Ivan Hare & James Weinstein eds., 2009). See also C. Edwin Baker, in The Content and Context of Hate Speech: Rethinking Regulation and Responses 57, 63 (Michael Eric Herz & Peter Molnar eds., 2012).

180 Robert Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 479 (2011).

181 C. Edwin Baker, Autonomy and Free Speech, 27 Const. Comment. 251, 254 (2011).

182 Id.

183 Emerson, supra note 172, at 87–881.

184 Baker, supra note 181, at 254–255.

185 T. M. Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy 95–97 (2003) (Tim Scanlon asks us to consider there the intrinsic value of freedom of expression with an argument from autonomy. As morally autonomous agents, he says that we need freedom of expression and access to information and opinions of others. Censoring others undermines my autonomy by denying me this access to opinion and information.); Corey Brettschneider, Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines, 107 NW. U. L. Rev. 603, 613 (2013).

186 Abraham Maslow, Toward a Psychology of Being 81 (1962).

187 Id.

188 Koustuv Saha, Eshwar Chandrasekharan, & Munmun De Choudhury, Prevalence and Psychological Effects of Hateful Speech in Online College Communities, Proceedings of the 10th ACM Conf. on Web Science 255, 260–264 (2019).

189 Oksanen Atte, Hawdon James, Holkeri Emma, Nasi Matti, & Räsänen Pekka, Exposure to Online Hate Among Young Social Media Users, in Soul of Society: A Focus on the Lives of Children & Youth (2014).

190 See T. M. Scanlon, Why Not Base Free Speech on Autonomy or Democracy, 97 Va. L. Rev. 541 (2011).

191 STRAFGESETZBUCH [Penal Code] § 130 StGB.

192 Amy Kristin Sanders, The "Exceptionalist Trap": Why the Future First Amendment Must Take Fundamental Human Rights into Account, 65 Wash. U. J. L. & Pol’y 061 (2021), https://openscholarship.wustl.edu/law_journal_law_policy/vol65/iss1/10.

193 Id. at 77.

194 Id. at 75.

195 Richard Delgado & David Yun, Neoconservative Case Against Hate-Speech Regulation–Lively, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 Vand. L. Rev. 1807, 1812 (1994).

196 See, e.g., Richard Delgado & Jean Stefancic, Understanding Words That Wound 1–2 (2004); Richard Delgado & Jean Stefancic, Four Observations About Hate Speech, 44 Wake Forest L. Rev. 353, 354–355 (2009); Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 134–136 (1982); Richard Delgado & David Yun, Neoconservative Case against Hate-Speech Regulation—Lively, D'Souza, Gates, Carter, and the Toughlove Crowd, 47 Vand. L. Rev. 1807 (1994); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 Cal L. Rev. 871 (1994); Richard Delgado & Jean Stefancic, Must We Defend Nazis? 110–115 (1997).

197 Richard Delgado & Jean Stefancic, Must We Defend Nazis? 110–115 (1997).

198 Brettschneider, supra note 185 at 613.

199 James Weinstein, Hate Speech, Pornography and the Radical Attack on Free Speech Doctrine 151 (1999).

200 Delgado & Yun, supra note 195, at 878.

201 Id.

202 Weinstein, supra note 199, at 150–151.

203 Baker supra note 179, at 79.

204 Citron & Norton, supra note 6, at 878.

205 Richard Delgado & Jean Stefancic, Hate Speech in Cyberspace, 49 Wake Forest L. Rev. 319, 339 (2014).

206 Cohen-Almagor, supra note 162, at 43.

207 Cat Zakrzewski, Gerrit De Vynck, & Niha Masih, How Facebook Neglected the Rest of the World, Fueling Hate Speech and Violence in India, Wash. Post, Oct. 24, 2021, https://www.washingtonpost.com/technology/2021/10/24/india-facebook-misinformation-hate-speech.

208 Citron & Norton, supra note 6, at 877.

209 Delgado & Yun, supra note 195, at 878

210 These codes were eventually struck down as unconstitutional extensions of the fighting words doctrine. See UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991).

211 Erwin Chemerinsky & Howard Gillman, Free Speech on Campus 97–103 (2018).

212 Henry Louis Gates Jr., Anthony Griffin, Donald Lively, Robert Post, William Rubenstein, & Nadine Strossen, Speaking of Race, Speaking of Sex: Hate speech, Civil Rights, and Civil Liberties 45 (1994).

213 Weinstein, supra note 140, at 529.

214 Gelber, supra note 6, at 622.

215 Id. at 627. (In 2014–2015, there were 30,991 racially motivated public order offences in England and Wales, and in Australia there are 200–350 violations of hate speech laws per year, but these studies did not measure which (if any) of these claims were made by minorities against members of dominant racial, ethnic, or religious groups).

216 Bonki Woo, Racial Discrimination and Mental Health in the USA: Testing the Reverse Racism Hypothesis, 5 J. Racial and Ethnic Health Disparities 766, 770 (2018).

217 Schroeder, supra note 83, at 1100.

218 Stroud, supra note 94, at 342–344.

219 Id.

220 Carlson, supra note 31, at 220.

221 Citron & Norton, supra note 6, at 877.

222 Delgado & Yun, supra note 195, at 878.

223 See, e.g., Wat Hopkins, From Chaplinsky to Meiklejohn and Beyond: Where Hate Speech Doesn’t Belong (Association for Education in Journalism and Mass Communication Journalism and Mass Communication, 2020), https://www.aejmc.com/home/scholarship/convention-papers. Here, Hopkins suggests that “hate speech does not deserve First Amendment protection, and the knee-jerk reaction that it should be protected simply because it is speech fails to recognize that both society and law call for discriminating among kinds of speech.” He argues that hate speech is analogous to cross burning—both instill fear of harm and are similar to threatening speech, and hate speech can be banned because it is not related to self-government and is harmful. See, e.g., Steven Shiffrin, Hate Speech, Legitimacy, and the Foundational Principles of Government, 32 Const. Comment. 675, 685 (2017). (Shiffrin says here that he does not think that our Constitution should make room for the narrow prescription of targeted racist insults and of speech with a message of racial inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful, and degrading).