Should We Regulate Extreme Racist Speech Like Other Democracies?

Candidates Have a Legal Right to Lie to Voters
Creative Commons License photo credit: Caveman 92223

The New York Times blog site (HT, Zulema) has an editorial on the white supremacist and “free speech” issues arising out of recent killings. After their opening they have comments from a variety of criminological and legal experts (Phyllis B. Gerstenfeld, criminal justice professor; Chip Berlet, Political Research Associates; Eric Hickey, criminology professor; Edward J. Eberle, comparative law professor; Eugene O’Donnell, John Jay College of Criminal Justice; and Rabbi Abraham Cooper, Simon Wiesenthal Center.)

Here is what the Times editors open with under the general theme of “room for debate”:

The killing of George Tiller, the abortion doctor in Wichita, Kan., and the attack on the Holocaust Memorial Museum in Washington yesterday have raised questions yet again about the role that extremist propaganda sites play in inciting violence among some militant believers. In both cases, the suspect arrested was well-known among fringe “communities” on the Web. Most legal scholars and many experts on extremist violence in the U.S. oppose reining in of such sites, or restrictions on extremist speech generally. Should the United States consider tighter restrictions on hate speech?

Notice the language here and in later parts of the analysts’ commentaries. They talk about “militant believers” from “fringe communities,” and sometimes call them “extremist.” One has to ask why they do not call these terrorists by the term “white terrorists”? Indeed, “white” rarely appears at all in the editorial or commentaries. If these white men had been “Middle Eastern extremists,” they likely would be called by that term. Do white men get a pass when it comes go this group-linked terrorism? And not one of the scholars even raises this question and the related one about the very long U.S. history of white terrorism (e.g., thousands killed by Klan-type groups) against people of color, as well as others like Jewish Americans.

The main debate in the Times blog here is over “free speech,” and how we cannot restrict white supremacist and other hate speech because of first amendment protections. One of the Times blog commentators, Edward J. Eberle, law professor at the Roger Williams University School of Law provides what I see as very interesting comments:

The United States is perhaps the only country in the world that allows for protection of hate speech. Much of this has to do with the idea that a free exchange of ideas is important and that allowing speech — even hate-filled speech — can be a safety valve that helps prevent outbreaks of violence. Under this view, speech needs to be regulated only when it will present a clear and present danger, as when it is a direct incitement to violence.

OK, why is this point not central in our media and political discussions: We are the only country that protects aggressive white supremacist and other aggressive hate speech. Why is that? Is it only because of our first amendment and conventional ideas of “free speech” in the United States? Is it because we really do cherish freedom more than other countries? Is our past and present history one of much greater freedom and liberty than other countries? Or is it because we (especially elite whites who run the country) do not see aggressive racist or other extremist hate speech as threatening to them and the values they care about?

Yet, the United States does NOT have unlimited “freedom of speech.” This notion is in fact a myth. As Eberle points out, things like obscene speech are not protected speech, “even when there is no concrete demonstration of harm.” Indeed, numerous types of speech are not protected, including obscene words, “fighting words,” some deceptive commercial ads, etc, as this comment from the Electronic Privacy Information Center ( indicates:

Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local “community standard,” and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards.

So, let me get this straight, we do legally ban obscene words, sexual words, obscene speech in many contexts even when these words have not been, or cannot be, proven to create significant harm. We still ban them in numerous settings regardless of the first amendment. But it is OK to spout much racist hate speech all over the place, including on the Internet, when one can show it causes some or much harm–including inciting people like white terrorists to commit violence against people of color and others? (Some “communities’ standards” and views of what is harmful clearly count more than others.)

Eberle notes how isolated the “free” United States is from other free countries, including those we consider our closet allies and kindred countries. Most do not protect serious hate speech, but prosecute it:

This is the case in all the European countries, like Germany, France, Britain, etc., and also Canada.

Notice that these are countries with high levels of free speech, in many ways countries where speech is more diverse and/or free than in the United States (as many newsstands in these countries reveal). Their legal systems recognize a conflict in human freedoms. The right of freedom of speech is not so absolute and does not always trump the right freedom from extremist hate speech and related hate crimes. Eberle notes what he calls the U.S.

individualist model of a right to self-determination and expression. For the Europeans and others, there is also a right to speak your mind, but there are some bounds based on respect of others.

So, how did we get to this backward place of protecting extreme racist speech over the right to be free from such vicious, often violence-generating hate speech attacks? Not one of these criminologists and law professors speaks to how we as a country might reasonably regulate the most extreme forms of racist hate speech, the kind designed to incite people to discriminate and commit hate crimes. These analysts do not consider what other “advanced” democratic countries do in this regard as legal or political strategies we might just consider in dealing with aggressive and virulent hate speech. Why are we so ethnocentric and provincial in not even knowing about or considering other, often more democratic, legal and political systems–and what they do to free their citizens from such virulent racist attacks?

Addendum: Paul Krassner reviews some of the array of speech censored and banned under the “obscenity” regulations of various places in the country. But no hate speech.


  1. Zulema

    I was very disappointed that no one addressed how we could address hate speech, which so often precedes hate crimes. On this note, Paul Krugman of the NYT has an article pointing out that the right wing conservative media is “maintreaming” extremism by their hate [free] speech, and by so doing, increases the likelihood of hate crimes against gays, immigrants, racial and ethnic minorities. The fact that they do this under the protection of “free speech” is scary.

    “The mainstreaming of extremism” by right-wing media is increasing hate. “The conservative media establishment is joining hands with the lunatic fringe”…so we can expect more hate crimes and speech in our present climate (black pres, recession, fox news)…scary stuff…and so true.

  2. David Paul

    It is striking that we do not just lump hate speech under the larger rubric of “obscenity.” It seems that this would be an easily-accepted solution (that rigid free-speechers would have to accept). Because hate speech correlates so strongly with violence and emotional/psychological harm to others, much more so than words traditionally seen as obscene which do not have intended targets de-facto.

    So why don’t our legislators bring this issue up in court? I really hope our congressmen and women can bring this issue up, it would really do a lot of good to start reigning in this kind of rhetoric.

  3. Prof Joe, I think you made the point perfectly clear – the powers that be aren’t “threatened” by hate speech, so it’s considered “protected.”
    I’m left to wonder if in a case of the right of (hate) speech vs right to be protected from hate speech, it wouldn’t be true that a wise Latina would come to a better conclusion that a white male without her experience. This isn’t to get off topic, but more, I guess, to “connect the dots” as to the protection of hate speech and why someone of color and/or a woman and/or a LGBT might feel differently than a white male who’s only experienced his white privilege.

  4. To answer the question, “Should we regulate hate speech?” – Yes. That does include a number of conservative talk shows. – And as a thought about the fearmongering about Obama restricting conservative talk radio, it concerns me that apparantly conservatives can’t express their views without being hateful and vitriolic.

  5. SN

    This entire issue is lost in the hollow abstractions that populate the liberal political imagination. Who exactly is going to police hate speech? The racist police? And then, as the stagnation of the economy continues and working people and people color start to respond via social movements and making radical demands. Those same police will have no problem shutting down strikes, demos, marches, etc. on the pretext that such actions constitute a form of hate speech.

  6. jwbe

    >Those same police will have no problem shutting down strikes, demos, marches, etc. on the pretext that such actions constitute a form of hate speech.
    Hate speech can be defined via laws. German hate speech laws don’t impact the general democratic right to go on strike, the right to demonstrate etc.

  7. jwbe

    >Is it because we really do cherish freedom more than other countries? Is our past and present history one of much greater freedom and liberty than other countries?
    I don’t think that the US cherish freedom more than other countries, my impression of the US when I visited America was, that you enjoy the illusion of enjoying more freedom than other countries when this is not the fact.
    Having the right to insult and to spread hate-speech is not freedom, or only one-sided ‘freedom to insult’, because hate speech limits the freedom of others.
    America is for me also not the symbol of freedom, because having ideals but not living them is just this: Having ideals, but nothing more. The history of America is a history of whites celebrating something as a reality what has never been reality in America: liberty, justice and equality for all people. Therefore also protecting hate-speech protects the white liberty to also continue with verbal racism on main-stream level and living the illusion that this means freedom for all.

  8. jwbe – I absolutely agree with you. And what’s so ignorant about white Americans – as a collective – is that so long as they have the veneer of freedom, you can pretty much do whatever you want. Whether it’s wiretapping or discrimination, so long as they feel free, it’s okay.

  9. Just a thought coming from Frank Rich of the NYTimes – if we can so skillfully draw the lines from Islamist (I hope I’m using that particular term properly) mullahs to terrorist attacks, how is it that we can’t, as a nation, draw the line from conservative talk to the recent domestic terrorist attacks? Would Patty B really argue that in the US, those mullahs have the right to free speech? Would he really argue they have no responsibility for the suicide bombings. And that makes me wonder something I hope I’m not repeating – whatever happened to the idea that with rights, such as free speech in this case, comes responsibility, for someone acting out on what you’ve spoken such as the recent domestic terrorism.

  10. Bobby

    Hate speech is a form of political speech.

    All political speech is protected by the 1st amendment.

    Obscenity is NOT political speech, therefore it is not protected by the 1st amendment.

    In cases in which obscenity has taken political undertones, that obscenity has been protected and covered by the 1st amendment.

    It’s really rather basic. If it’s political, it’s protected, no matter how offensive you find it.

  11. Joe

    Bobby, there are several problems with that approach. First, what exactly is “political” speech and what is “obscene” speech. Much of the latter has been banned, even though many people consider such speech (such as sexualized protest art) as “political” speech. There is also the issue of who gets to decide. White Elites? Who? A great deal of speech in this country is NOT protected by the first amendment, and some of it is obviously political speech for many people. Other more democratic countries, like some of the European countries, ban much racist hate speech, yet are more democratic and have much more political debate than we do. Why?

  12. SN

    jwbe Says:
    “Hate speech can be defined via laws. German hate speech laws don’t impact the general democratic right to go on strike, the right to demonstrate etc.”

    A) The U.S. is not Germany
    B) The German left do not share your benevolent view of the German state
    C) Germany does have hate speech laws and is still a profoundly racist society. European Hate Speech laws are evidence of the ineffectiveness of such laws to curb racism.

Leave a Reply