Is hate speech defined by either federal or state law?

[bordelond]

Inspired by discussion in this thread.

Is hate speech defined by law at either (a) the federal level, or (b) the state level by any one of the fifty states?

[Reply]

FWIW, before a more knowledgeable person shows up…

Relevant Wikipedia links:
Special exceptions to Freedom of Speech in the United States, and more specifically, “Fighting words”.

Short version: It seems like the courts have ruled, in the past, that “[words] that by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not constitutionally protected free speech; however, Wikipedia says that the actual words that qualify as “fighting words” get fewer and fewer over time… but provides no cite for this, so I would question its validity.

One of the linked-to references, written by a Canadian professor who teaches American politics, says:

Neither Congress nor the states have enacted hate speech/propaganda laws that specifically target speech. State laws cover actual intimidation, harassment, assault, and breach of the peace where hatred toward the members of a group is shown to have been a contributing factor. California’s hate law, section 422.6 of the state penal code, specifically declares that, “no person shall be convicted of [a hate crime] based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.” There are obvious echoes of both the fighting words and imminent danger tests in this provision of California law.

[Reply]

Heh, Wikipedia in action: While I was typing that response, somebody went ahead and updated the Hate speech: United States section. I’ll quote the latest revision:

The United States federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech. See, e.g., Gitlow v. New York (1925), incorporating the free speech clause. Generally speaking, the First Amendment prohibits governments from regulating the content of speech, subject to a few recognized exceptions such as defamation[36] or incitement to riot.[37] Even in cases of encouraging illegal violence, incitement only qualifies as a criminal offense if the threat of violence is imminent.[38] This stringent standard has barred governments from prosecuting many cases of incitement, both by groups calling for violent opposition to government policies and by those advocating violence against racial, ethnic, or gender minorities. See, e.g., Yates v. United States (1957), Brandenburg v. Ohio (1969).

Sources:
[36] Unfettered Press: Libel Law in the United States
[37] 18 U.S. Code § 2101 - Riots | U.S. Code | US Law | LII / Legal Information Institute
[38] http://www.iht.com/articles/2008/06/11/america/hate.php

[Richard_Parker]

Hate speech laws are no longer considered constitutional. See R.A.V. v. St. Paul, 505 U.S. 377 (1992).

The Federal Constitution’s First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed; content-based regulations of speech are presumptively invalid; the First Amendment does not permit a city to impose special prohibitions on those speakers who express views on disfavored subjects

So you’re unlikely to find a federal or state law regarding hate speech (though some might still be on the books, I suppose).

[Reply]

In that case, a followup question would be: Are there additional penalties if violence-inducing speech (which is illegal, AFAIK) happened to contain hateful material against protected classes?

[Richard_Parker]

@Reply

In that case, a followup question would be: Are there additional penalties if violence-inducing speech (which is illegal, AFAIK) happened to contain hateful material against protected classes?

That is in fact the very question in the case I cited. It holds that you cannot criminalize a subset of criminal speech on the basis of its content.

It gets a bit more complicated when the line between speech and conduct is blurred, and when the speech is proof of motive (e.g. hate crimes).

But the answer in the area of fighting words or incitement (i.e. violence-inducing speech) is pretty clearly that the state cannot add extra punishment because of the content of the speech.