Where Does U.S. Law Stand on Hate Speech?

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A KKK rally. (Photo: Wikimedia Commons)
A KKK rally. (Photo: Wikimedia Commons)

The Simon Weisenthal Center in late July 2017 asked then U.S. homeland security secretary John Kelly “to launch an immediate investigation of Imam Ammar Shahin, the imam of the Islamic Center of Davis in California, for inciting to murder Jews.”

Imam Shahin called on Allah to “liberate the Al-Aqsa Mosque from the filth of the Jews” saying “Oh Allah, count them one by one and annihilate them down to the very last one. Do not spare any of them.

So where does the law stand on such sermons?

Laws on free speech and hate speech differ around the world. In the United States at this time there is no legal concept of “hate speech,” which is protected by the first amendment.

The only form of speech deemed illegal is that which is likely to incite violence imminently, even if it incites violence at some future time. This has been the case in U.S. constitutional law since 1969.


Brandenburg vs Ohio

In 1969, a Ku Klux Klan (KKK) leader named Clark Brandenburg staged a rally in which he and others made speeches advocating violent revenge against the government if the state continued to “suppress the white, Caucasian race.” The rally was televised and received local and national media attention.

Brandenburg was convicted under Ohio’s Criminal Syndicalism statue which prohibited “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg’s appeal was rejected by the Ohio Supreme Court.

His conviction was overturned by the Supreme Court which ruled Ohio’s Criminal Syndicalism statue as unconstitutional.

The ruling introduced a principle that the state may only prohibit speech which incites “imminent lawless action.” Inciting lawless action at an undetermined time in the future is thus protected under the first amendment.


Whitney vs California.

Prior to 1969, a very different test was used. Brandenburg vs Ohio overturned the previous ruling of Whitney vs California (1927). That case saw Charlotte Whitney arrested for her part in establishing the Communist Labor Party of America.

The Supreme Court upheld her conviction on the grounds that the Communist Party sought to overthrow the state and was therefore considered “criminal syndicalism.”

In a famous concurrent opinion, Justice Louis Brandeis upheld the conviction, but argued that free speech should only be curtailed when there is “clear and imminent danger” that “substantive evil” would occur.

“Those who won our independence by revolution were not cowards,” Brandeis wrote. “They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.”


It is interesting to note Supreme Court and other rulings which suppressed speech have historically concerned the struggle against communism, while those which have erred on the side of liberty have tended to concern cases of the far-right.


International Covenant on Civil and Political Rights

Article 20 of the International Covenant on Civil and Political Rights, ratified by the United States Senate in 1992, mandates legal sanctions for inciting hatred.  Point two reads “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

However, when ratifying the treaty, the U.S. added a reservation to article 20 exempting the U.S. from that part of the treaty. The Senate Committee on Foreign Relations Report “recognizes that these restrictions are inconsistent with the guarantees of free speech in the US Constitution and the Bill of Rights.”


Just because anti-Semitic Imam Ammar Shahin seemingly did not violate U.S. law in his sermon at the Islamic Center of Davis, California, that does not mean civil society cannot act against such speech. Shahin was forced to issue an apology for his sermon, which has been rejected by the organizers of a petition to demand the mosque fire him.

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Elliot Friedland

Elliot Friedland is a research fellow at Clarion Project.

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