The case for restricting hate speech

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech. Why, for example, did the Supreme Court on Monday rule that the trademark office cannot reject “disparaging” applications—like a request from an Oregon band to trademark “the Slants” as in Asian “slant eyes.”

The typical answer is that judges must balance benefits and harms. If judges are asked to compare the harm of restricting speech – a cherished core constitutional value – to the harm of hurt feelings, judges will rightly choose to protect free expression. But perhaps it’s nonsense to characterize the nature of the harm as nothing more than an emotional scratch; that’s a reflection of the deep inequalities in our society, and one that demonstrates a profound misunderstanding of how hate speech affects its targets.

Legally, we tell members of traditionally disadvantaged groups that they must live with hate speech except under very limited circumstances. The KKK can parade down Main Street. People can’t falsely yell fire in a theater but can yell the N-word at a person of color. College women are told that a crowd of frat boys chanting “no means yes and yes means anal” is something they must tolerate in the name of (someone else’s) freedom.