What is hate speech?
Hate speech is expression that attacks, demeans or stirs up hostility toward people because of a group trait such as race, religion, ethnicity, sex, sexual orientation or disability. There is no single legal definition, and the term covers everything from slurs to organized calls for discrimination.
In the United States the key point is that there is no hate speech exception to the First Amendment. Offensive or hateful views are protected unless the speech fits a narrow unprotected category, such as incitement, true threats, or targeted harassment. The general framework is covered in the First Amendment.
- Meaning
- Speech that demeans or stirs hostility toward a group based on traits like race or religion
- U.S. rule
- Mostly protected; punishable only if it fits a narrow category such as incitement or true threats
- Key cases
- Brandenburg (1969), R.A.V. (1992), Snyder (2011), Matal (2017)
- Contrast
- Germany punishes incitement to hatred (StGB §130)
Not every offensive remark is hate speech. What makes speech hate speech is that it targets people for who they are as a group, not for something they did.
How U.S. courts treat it
- Brandenburg v. Ohio (1969): advocacy, even of violence, can be punished only if it is directed to inciting imminent lawless action and likely to produce it. The case overturned the conviction of a Ku Klux Klan leader.
- R.A.V. v. City of St. Paul (1992): the Court struck down a city ordinance that banned symbols such as a burning cross that arouse anger on the basis of race, religion or gender, because it singled out speech by its content and viewpoint.
- Snyder v. Phelps (2011): by 8 to 1 the Court held that hateful picketing near a military funeral, on matters of public concern, could not be the basis of tort liability.
- Matal v. Tam (2017): the Court unanimously struck down a federal ban on registering disparaging trademarks, with Justice Alito writing that the idea that the government may restrict speech expressing ideas that offend strikes at the heart of the First Amendment.
For Korean students, an analysis of online misogynistic hate speech, foreign laws and the clash with free expression is in Regulating Online Misogynistic Hate Speech in Korea: Definitions, Foreign Laws, and the Clash with Freedom of Expression. Free expression and its limits under Articles 19 and 20 of the ICCPR are covered in Freedom of Expression Under the ICCPR and Korean Law: Articles 19 and 20, Hate Speech Limits, and the Rabat Plan of Action, and the types of state obligations under human rights treaties in State Obligations under Human Rights Treaties: Rights and Basic Rights, the Treaty System, and Protecting Refugees, Women, Children and Migrant Workers.
| United States | Germany | Korea | |
|---|---|---|---|
| Group-directed hate speech | Generally protected | Incitement to hatred is a crime | No general ban |
| Insulting an individual | Generally not a crime | Insult is a crime | Insult is a crime (Criminal Act Art. 311) |
| Online platforms | Platforms set their own rules | Network Enforcement Act (2017) | Takedown requests under the Network Act |
International law and other democracies
Article 20(2) of the International Covenant on Civil and Political Rights requires states to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The U.S. ratified the Covenant in 1992 with a reservation on this article, citing the First Amendment. The equality principle behind it goes back to the Universal Declaration of Human Rights.
Germany takes the opposite approach: Section 130 of its Criminal Code punishes incitement to hatred, and its Network Enforcement Act, in force since October 1, 2017, requires large social networks to handle complaints about unlawful content. Korea punishes insult and defamation of individuals, including in some cases true statements (see truth and defamation in Korea), but has no general law against group-directed hate speech, and a comprehensive anti-discrimination bill first proposed in 2007 has not passed. Remedies aimed at structural discrimination are discussed in affirmative action.
When you study hate speech rules, separate the tools. Criminal bans, civil remedies, platform rules, and counter-speech carry very different risks, so which tool is used matters as much as whether to regulate.
- Is hate speech illegal in the U.S.?
- Generally no. It is protected unless it is incitement to imminent lawless action, a true threat, or another narrow unprotected category.
- Can a hate crime be punished more severely?
- Yes. Courts allow enhanced sentences for crimes where the victim was chosen because of a protected trait, since the law targets the conduct.
- Why do European countries ban it?
- Many, shaped by the history of Nazism, treat incitement to hatred as a threat to human dignity and democracy, and international law asks states to ban incitement.
References
- Brandenburg v. Ohio, 395 U.S. 444 (1969). Cornell LII
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Cornell LII
- Matal v. Tam, 582 U.S. 218 (2017). Supreme Court of the United States