By Erwin Chemerinsky
The Sacramento Bee
The wave of deeply disturbing hate crimes in recent days — the killing of two African Americans, allegedly by a white supremacist, in Kentucky; the mail bombs sent to numerous former and current officials; the massacre at a synagogue in Pittsburgh — has led to new calls to ban hate speech.
Although the government may impose greater punishments on crimes motivated by hate, the law is clear that the expression of hate is protected by the First Amendment. The government cannot punish speech even if it is deeply offensive — and there is no reason to believe that censoring hate speech will make hate crimes less likely.
We only can speculate why there is a significant increase in these crimes. The Anti-Defamation League reports that anti-Semitic incidents across the country have increased dramatically.
I often have the sense that a rock has been turned over in society in the last couple of years and people are expressing and acting in a way that has not been seen for decades. And I believe that President Donald Trump’s divisive rhetoric and his race-based appeals have contributed to this.
The weekend before the November 2016 election, the Trump campaign ran a two-minute closing ad that attacked financier and liberal donor George Soros, then-Federal Reserve Chairwoman Janet Yellen and then Goldman Sachs CEO Lloyd Blankfein. They are all Jewish; there is no way to understand the ad except as being blatantly anti-Semitic. Then last year, after a protestor was killed during an anti-racism march in Charlottesville, Virginia, Trump said there “were very fine people” marching among the neo-Nazis chanting “Jews will not replace us.”
Trump has appealed to hate and stoked its flames. Yet the law is clear that he — like all Americans — has the right to do so.
In fact, the First Amendment unquestionably protects hateful speech. In the late 1970s and early 1980s, the village of Skokie — a suburb north of Chicago with a significant population of Holocaust survivors — did everything it could to keep the Nazi party from marching. But every court, including the U.S. Supreme Court, ruled that the Nazis had the constitutional right to demonstrate and express their hateful message.
In 1992, the high court declared unconstitutional an ordinance in St. Paul, Minn., that banned burning a cross or painting a swastika in a manner likely to anger, alarm, or cause resentment. The justices unanimously ruled that such symbols of hate are protected by the First Amendment.
Every European country has a law banning hate speech, so why not the United States? In part, it is the difficulty of defining hate speech in a manner that is not unduly vague or broad. Decades of efforts — by states, municipalities and universities — have demonstrated that all such codes are impermissibly vague.
Typically, in both the United States and Europe, laws prohibiting hate speech outlaw expression that “stigmatizes,” “demeans,” or “insults” people on the basis of race, religion, gender or sexual orientation. In the early 1990s, more than 360 U.S. colleges and universities adopted hate speech codes using language like this. Every code taken to court was declared unconstitutional.
Moreover, hate speech is protected under the Constitution because it expresses an idea, albeit a vile idea. Protecting hate speech is necessary because the alternative — granting governments the power to punish speakers they don’t like — risks even greater harm.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” the U.S. Supreme Court declared in June 2017.
History shows that punishing hate speech risks creating martyrs and rallying support. There is no evidence that banning hate speech does anything to lessen the presence in society of racist ideas or even racist crimes. The law is clear that hate-motivated crimes can be subject to enhanced punishments; it is just the speech that is protected by the First Amendment.
I do not minimize the harms of hate speech, and I am truly frightened by the hate crimes of recent days. It is imperative that we reflect as a society on what is causing this and what to do about it. But censorship is not the answer.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law.
