Hate Speech - United States

United States

In the United States, hate speech is protected as a civil right (aside from usual exceptions to free speech, such as defamation, incitement to riot, and fighting words). Laws prohibiting hate speech are unconstitutional in the United States; the United States federal government and state governments are forbidden by the First Amendment of the Constitution from restricting speech.

The "reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey." Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government and those exhorting violence against racial, ethnic, or gender minorities.

Under Title VII of the Civil Rights Act of 1964, employers may sometimes be prosecuted for tolerating "hate speech" by their employees, if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive working environment" for other employees.

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they are frequently overturned as violations of the First Amendment. Debate over restriction of "hate speech" in public universities has resurfaced with the adoption of anti-harassment codes covering discriminatory speech.