Opinion: We need a new First Amendment doctrine to limit hate speech

Friends and colleagues were stunned the other day when I announced on a radio show that I thought the time had come seriously to consider limitations on hate speech in the United States.“The First Amendment prohibits that!” one said.“Who would enforce what is and isn’t hate speech?” another sputtered.“Are you saying Nazis should not have had the right to march in Skokie, Illinois?” a third said. (American Nazi’s won the right on free speech grounds to march in Skokie, a neighborhood filled with Holocaust survivors. In the end, the marchers gathered in Chicago, instead.)I didn’t back pedal. We need a new First Amendment doctrine to limit hate speech. Enforcement would be up to local law enforcement and the courts. As to Skokie, I’m still uncertain. I’m trying to start a discussion, and, candidly, I am not sure where it leads and just how far I think the law should go.But here is my starting point: There is no social utility or value in speech that calls for the death or destruction of a people or person. My turning point began as I heard reports of folks uttering “death to Zionists” on American college campuses.For all of my professional life, I have defended hate speech as a protected speech. Indeed, I’ve represented folks, including Alex Jones and Nick Fuentes, who are regarded by some as purveyors of hate speech. The censor, I told a group of judges at a May Day speech five years ago, worry me more than the most hateful speaker. I stood on the front line of the Proud Boys seditious conspiracy trial in Washington, D.C. for six months in 2023 making a close study of what did, and did not, take place in the nation’s capitol on January 6, 2021.I learned a thing or two about expressive and vitriolic speech.I think there is room for a prohibition of hate speech in a robust First Amendment regime dedicated to protecting freedom of speech.The First Amendment’s words as to free speech are simple: “Congress shall make no law … abridging the freedom of speech.” As our law has evolved, the word Congress has come to mean any public authority, whether national, state or local.There are exceptions to this rule, of course. One can be prosecuted for using fighting words intended to provoke physical violence. And true threats, utterances that you have good reason to believe place an identifiable person in immediate apprehension of physical harm are prohibited. So too are incitements to engage in immediate violence.Drawing a line between this sort of speech and mere hyperbole or abstract threats of violence at some future date — both which are permitted speech — is difficult, especially in the context of political rallies or robust commentary on public affairs.Easier limitations on freedom speech include defamation, conspiring to commit a crime, fraud, and purveying child pornography.Hate speech, that is speech intended to convey contempt for another person or group because of their identity or perceived identity is protected speech. But should it be? It is no solution to say that I should avoid the public square when an activist calls for either my death or the death of those like me. Sure, he may not be asking people to take the leap to action, but he is planting a seed that has the potential to take lethal root. Of what value is that speech to the community?The First Amendment’s primary purpose is protecting political speech, expressions of difference about who should lead us. The amendment’s application to expressive speech came much later in the nation’s history.I would suggest that the United Supreme Court’s test to determine whether a publication is obscene – and therefore prohibited – might serve as a workable foundation for building a hate speech exception. Taken from Miller v. California, a 1973 decision, a case involving the mass mailing of “adult material,” the Court held a work could be considered obscene if the average person in a community regarded the work as prurient (excessively devoted to sexual matters), if it depicted sexual conduct in a patently offensive way and if the work, taken as a whole, lacks serious literary, artistic, political or scientific value.I get it for you non-lawyers. Why do these legal tests have to be so wordy and difficult to apply? Even Justice Potter Stewart despaired over the complexity of the definition of obscenity: “I know it when I see it,” he said. That’s hardly a foundation for a law confidently to be applied throughout the nation.But there is something of value in the Miller test for obscenity as regards a new law banning hate speech. Does the utterance “Death to Zionists” taken as a whole, have any serious literary, artistic, political or scientific value? I suggest that it does not – calling for the death of an individual or group is hateful and cannot help but terrify the person or group identified. What value has that in a healthy community seeking to build bonds of mutual respect and tolerance?One of the primary justifications for freedom of speech is that such freedom makes it more likely that the truth will emerge. We are stronger as a society when we know the truth, when politicians can feel free to express, even in exaggerated terms, their ideas.Tell me, someone, what social utility, what benefit to us all, comes of permitting a speaker to express hatred of another?I realize the test for hate speech will be as difficult to apply and articulate as the law regarding obscenity. Indeed, one can argue, as I have, that there is no such thing as hate speech, there is simply speech about what we fear. Stifling that speech drives it underground making hateful action more likely.Perhaps, but in our current divided times I’m willing to gamble on a law making it more difficult to spew hatred. I want a better world.Norm Pattis is an attorney in Connecticut.

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