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The First Amendment in the Trump Era$

Timothy Zick

Print publication date: 2019

Print ISBN-13: 9780190073992

Published to Oxford Scholarship Online: October 2019

DOI: 10.1093/oso/9780190073992.001.0001

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Dealing with “Hate Speech”

Dealing with “Hate Speech”

(p.91) 5 Dealing with “Hate Speech”
The First Amendment in the Trump Era

Timothy Zick

Oxford University Press

Abstract and Keywords

This chapter discusses the controversies over “hate speech” that have dogged President Trump’s early years in office. It provides a brief primer on the First Amendment doctrine relating to “hate speech,” under which derogatory expression is mostly considered protected speech. The chapter examines both the harms associated with “hate speech” and the principal justifications for protecting it. It criticizes the Trump administration’s handling of issues relating to “hate speech.” It also addresses the special problems associated with governmental “hate speech.” The chapter concludes with a consideration of the extent to which the government can use its own expressive powers to educate Americans about the need to preserve both freedom of speech and the security and equal dignity that “hate speech” undermines.

Keywords:   President Trump, hate speech, First Amendment, freedom of speech, government speech, campus speech, Muslim ban

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”1

Donald Trump has again thrust issues relating to “hate speech” into national public discourse. Indeed, one of the singular things about his candidacy and presidency is the extent to which Trump has himself participated in communicating derogatory views. Of course, long before there was a candidate or President Trump, America faced questions concerning how to deal with expression that denigrates or offends individuals based on race, gender, ethnicity, sexual orientation, and religion. Today we are facing this issue again on college campuses, in social media, and in public discourse more generally. Data indicate that hateful expression is on the rise. The president’s own derogatory rhetoric may be connected to this phenomenon.

From the perspective of its targets, hateful and derogatory expression is associated with psychological, emotional, and physical harms. “Hate speech,” as such expression is generally called, may also harm the body politic. Hateful statements that emanate from the president himself or his administration raise the stakes. Since they emanate from officialdom, they may implicate the equality, religious, and free speech rights of their targets. Further, some recent research has found a strong correlation between anti-Muslim hate crimes and President Trump’s derogatory tweets about Muslims.2 All of these concerns are amplified by social media, which assures that derogatory statements, in particular those emanating from a president with a global social media following, are echoed and broadcast widely.

For many Americans, given the harms associated with it and its seemingly low value, it is puzzling why the First Amendment protects “hate (p.92) speech” at all. In many nations, including many industrialized democracies, “hate speech” is regulated or criminalized. However, under the First Amendment, “hate speech” is mostly protected speech—which is to say it cannot be targeted for suppression based on its derogatory content but can in narrow circumstances be restricted owing to its effects on physical safety and public order. Given the incidence and effects of hateful expression, we ought to be clear about the extent to which it is generally protected by the First Amendment and, more importantly, why it remains so. The Trump Era provides another opportunity to revisit this issue. It also provides another opportunity to consider the government’s own role in communicating and combatting hate. We must consider not only the impact of private speech that denigrates, but also the effects of derogatory speech emanating from public officials.

Hate Speech in the Trump Era

Hateful and derogatory expression has long been an issue in American political and cultural discourse. Although Donald Trump certainly did not originate this concern, in a number of ways he has contributed to and exacerbated it.

From the beginning of his candidacy, Trump stoked racial, ethnic, religious, and other divisions in an effort to appeal to his political base. In public statements and frequent social media posts, he denigrated a wide variety of individuals and groups. Candidate Trump infamously denounced Mexican immigrants as “rapists” and “drug dealers.” (He later accused a Mexican American judge of being biased, solely on the basis of his ancestry.) Candidate Trump openly mocked a disabled reporter. He made derogatory remarks about Muslims.

There is some evidence that during the 2016 presidential election, Russian operatives engaged in an orchestrated manipulation of social media in an effort to assist Trump’s campaign. As part of that effort, operatives sought to sow or deepen racial divisions in the American electorate through the communication of derogatory ads. They posted and distributed ads denigrating Muslims, undocumented immigrants, and African Americans.

As president, Trump has continued to communicate in ways that derogate or insult based upon race, gender, and other characteristics. Most notably, he refused to denounce white supremacists who marched in Charlottesville, (p.93) Virginia, during the summer of 2017. Instead the president referred to some of those white supremacists as “very fine people” and denounced “both sides” for the violence that occurred on Charlottesville’s streets. Thereafter, as the nation debated the moral and constitutional merits of openly displaying Confederate monuments, many of which were products of the racist Jim Crow era, President Trump expressed a strong desire to retain these monuments. While it may be hurtful and disappointing to many, his communication of support for Robert E. Lee and other Confederate icons is not itself a form of hateful expression. On the other hand, when the president has weighed in on the debate, he has not been clear about precisely why he holds his views.

The president has spoken more directly about race. On several occasions, he has publicly insulted the intelligence of African American lawmakers and professional athletes. President Trump has referred to certain African nations as “shitholes.” On some occasions, he has described undocumented aliens as “animals.”

Trump has cast a wide derogatory net. As a candidate and as president, Trump has made several derogatory remarks about both the appearance and intelligence of women. He and certain members of his administration have denigrated Muslims by suggesting that “Islam hates us” and is a “cancer.” As a candidate, Trump called for a “total and complete shutdown of Muslims entering the United States”—a “Muslim ban,” as he once proudly referred to it. As president, Trump has retweeted anti-Muslim propaganda videos.

The statements are troubling, coming as they do from the lips and social media account of the president. However, in part owing to their prominent source, these derogatory communications have caused significant harms to the body politic. Some view them as a license to openly use derogatory terms and communicate their own discriminatory beliefs—without regard to the serious consequences of this exercise of First Amendment rights. Since Trump’s election, researchers have reported an increase in the number of incidents of xenophobic, racist, and homophobic speech directed to members of minority groups.

The Anti-Defamation League reported a 60 percent increase in anti-Semitic incidents in 2017.3 Just days after the presidential election, a gay man in Michigan heard a taunt from a group of men: “Trump is going to get rid of people like you.” A Jewish woman in Austin, Texas, said she heard the same threat from a middle-aged white man as she lined up to buy groceries. A black woman in Houston reported that she was told by a white man that (p.94) Trump was going to “get rid of all you n------.” An Asian American woman in Hollywood, California, had her hair pulled by an older white woman and was told that she had to “go back to China” now that Trump is president.4 In our social media era, many videos of whites harassing African Americans, Mexican Americans, and other racial and ethnic minorities have gone viral on social media.

Thus, it is not just the president’s own speech that has raised concerns. Some supporters apparently view his election as a signal that “political correctness” no longer demands that they keep xenophobic and other derogatory remarks to themselves. A candidate who won with the overwhelming support of white voters and very little support from the groups being denigrated is looked upon by some as a standard-bearer who is fighting for those who feel their speech about race and religion has long been unduly chilled. There is also evidence that hate groups view the president’s statements as supportive of their agendas. David Duke, a former Grand Wizard of the Ku Klux Klan, commented “[w]e are determined to take our country back. We are going to fulfill the promises of Donald Trump.”

Since the election, the Trump administration has engaged with the issue of “hate speech” on the nation’s campuses. During the past few years, invitations extended to white supremacists and other controversial speakers, as well as incidents of hateful expression by students and faculty, have roiled a number of American college and university campuses. This has stirred campus officials to comment publicly about the communication of hateful and derogatory ideas on campus and, in some instances, to consider imposing limits on such expression.

The Trump administration has strongly and publicly opposed such regulations. In public remarks, Attorney General Jefferson Sessions denounced them as a form of “political correctness” and criticized students who supported them as seeking shelter from ideas they did not like. During the Trump presidency, the Department of Justice has filed a number of “official statements” in federal lawsuits opposing campus harassment, bullying, and “hate speech” regulations.

Reacting in part to the debate about “hate speech” on campus, which includes alleged suppression of conservative viewpoints, in March 2019 the president issued an executive order that conditions the receipt of federal research funds at private and public universities on the protection of free speech on campus.5 Tellingly, the president announced the order at a gathering of conservative activists, at which he linked the (p.95) issue of free speech on campus to highly publicized incidents in which right-wing speakers had been excluded or attacked. At the signing ceremony, President Trump said, “Under the guise of speech codes, and safe spaces, and trigger warnings, these universities have tried to restrict free thought, impose total conformity and shut down the voices of great young Americans.” He did not clarify whether the “great young Americans” referred to included figures such as Richard Spencer, a white supremacist who has been at the center of several controversies surrounding visits to college campuses.

“Hate Speech”—A Primer

Before analyzing the incidence of and response to “hate speech” during the Trump Era, it is helpful first to understand the current approach to this kind of expression under the First Amendment. Some commentators have asserted that “hate speech” is not protected speech. Others have insisted that any and all forms of hateful expression are fully protected under the First Amendment. Both of these perspectives are actually incorrect. In fact, most but not all hateful and derogatory speech is entitled to protection under the First Amendment. In other words, under current First Amendment doctrines and precedents, “hate speech” is (mostly) protected speech.

One of the first things to understand about “hate speech” is that the label lacks any independent First Amendment significance. Although First Amendment doctrines deal with certain defined categories of utterances, such as obscenity, incitement, and threats, “hate speech” is not among them.

There is no agreed-upon legal or constitutional definition of “hate speech.” For purposes of this brief primer, we can adopt the legal philosopher Jeremy Waldron’s definition: “[W]ords which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them.”6 This definition describes the general class or category of speech we are considering.

Most of the speech in Professor Waldron’s definition is protected by the First Amendment. Under long-standing First Amendment doctrines, government is generally not allowed to regulate speech based on the particular message or idea being communicated. The communication of hateful ideas falls within this general rule. The recognized exceptions to this content-neutrality principle are few and they are narrowly defined.

(p.96) As mentioned, the Supreme Court has identified certain categories of speech that are not covered by the First Amendment at all. Insofar as the consideration of “hate speech” is concerned, the most relevant of these categorical exceptions are incitement to unlawful activity, “fighting words,” and “true threats.” Persistent forms of harassment are also not covered by the First Amendment.

Thus, speech that incites others to engage in unlawful activity is uncovered, but only if the speaker expressly advocates unlawful action and that action is both imminent and likely to occur.7 Racial epithets and other abusive words can be punished as uncovered “fighting words,” but only when they are directed to a specific person and are likely to result in an imminent breach of the peace (i.e., a brawl).8 A “true threat” is a serious expression directed to a person or group of an intent to inflict bodily harm or death.9 Finally, in order to fall outside the First Amendment, verbal and other forms of harassment must be persistent and produce serious interference with work, study, or other interests.

Note that under these exceptions, not every use of a racial, ethnic, or other slur is protected under the First Amendment. Hateful speech that meets any of these narrow definitions would not be covered by the First Amendment, and governments—including campus administrations—are allowed to regulate it. For example, inciting violence against particular Muslims would not be covered speech. Similarly, burning a cross with the intent to intimate or threaten an African American family is not protected speech under the First Amendment.10 Pervasive harassment in the form of racially derogatory remarks is not protected speech.

However, it is important to understand that in each of these instances, the speech is considered beyond First Amendment bounds not because it contains a racial slur or other form of “hate speech,” but rather because it is included within a categorical exclusion that is defined without reference to racist or other forms of hateful expression. Thus, the Supreme Court has emphasized that government generally cannot single out only certain fighting words, incitement, threats, etc. based upon their racist or other derogatory content.11 In sum, the speech in these examples is categorically excluded from coverage not because it expresses hate but rather owing to the likelihood it will incite violence, or threaten physical injury, or negatively affect workplace or school-related functions.

Under these First Amendment standards, the various statements of candidate and now-president Trump concerning ethnic, racial, and religious (p.97) minorities are all protected by the First Amendment. Even if it is intended to stir up hatred for targeted individuals and groups, speech that denigrates or insults Mexicans, African Americans, LGBT persons, women, or Muslims is not considered to be outside the domain of the First Amendment. Whether communicated by a government official or a private citizen, the idea that Mexicans are rapists or that Muslims are terrorists is entitled to First Amendment protection—even though the statements are offensive and hurtful overgeneralizations. Under this approach, hateful ideas and opinions communicated by white supremacists and other campus speakers are also protected under the First Amendment. Of course, that does not mean the ideas communicated by the president or the white supremacist cause no harm or pose no danger to individuals or society. It means that as currently interpreted, the First Amendment protects the remarks despite these harms.

Some of my examples of private speech, in particular those involving face-to-face communication of racial epithets, might be considered “fighting words.” An individual who uses the N-word in a face-to-face altercation may not be allowed to fall back on the First Amendment when arrested for breach of peace or disorderly conduct. A student who persists in dogging a classmate and spewing racial or ethnic epithets can be punished under a student code of conduct for such actions. And a person who threatens another with physical injury can be held liable for the threat. But again, the reason for these carve outs has nothing to do with the racial or other derogatory content and everything to do with the danger to individual or communal safety.

So the First Amendment generally protects a speaker’s right to communicate abusive, insulting, demeaning, and derogatory remarks. Fraternity members who sing racially offensive songs on campus cannot be expelled solely for their choice of language. A speaker who expresses the view that Mexican Americans or Asian Americans should “go back where they came from” is shielded by the First Amendment from official sanction. Anti-Semitic, racist, xenophobic, misogynistic, and other hateful speech is mostly protected by the First Amendment.

The First Amendment’s protection for hateful and derogatory speech of this nature is truly exceptional. In Western democracies, hateful and derogatory speech is generally banned or regulated. Denmark bans statements “by which a group of people are threatened, derided or degraded because of their race, colour of skin, national or ethnic background.” Germany (p.98) prohibits attacks on the “human dignity of others by insulting, maliciously maligning or defaming segments of the population.” In the United Kingdom, laws ban the use of “threatening, abusive or insulting words or behavior” when these are intended “to stir up racial hatred” or when “having regard to all the circumstances racial hatred is likely to be stirred up thereby.” Canada prohibits any public statements that “incite hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”12

These approaches to “hate speech” give primacy to interests such as individual equality and dignity. Laws in the nations mentioned, and others, permit government to pursue those interests by targeting and restricting hateful speech based on its content. By contrast, the First Amendment’s protection for even derogatory speech calculated to stir up racial and other forms of hatred is predicated on the primacy of freedom of speech. As Justice Oliver Wendell Holmes Jr. observed, the First Amendment protects even “the thought that we hate.”

“Hate Speech” and Harm

Having won the First Amendment battle and the right to communicate hateful ideas, purveyors of “hate speech” are too often prone to dismiss objections to its communication as mere “political correctness.” Owing to the outsized influence freedom of speech has in our culture, too little time is spent considering the significant harms associated with hateful and derogatory speech. To better understand the implications of the First Amendment’s current protection for hateful and derogatory speech, we ought to be familiar with the psychological, physical, political, and constitutional harms that such speech can cause.13

To understand the variety of harms that can be associated with hateful expression, consider the infamous request by a Nazi group to march in Skokie, Illinois. In the 1970s, a group of American Nazis applied for a permit to march in the town of Skokie, Illinois, in full Nazi regalia. At the time, Skokie was home to hundreds of Jews who had survived the Holocaust.

Town officials adopted several regulations designed to prevent the march from occurring. They argued, in part, that the Nazi march would cause severe psychological distress for some of the town’s residents.14 Ultimately, state and federal courts did not find the town’s concerns about psychological (p.99) harms sufficient to support suppressing the march and invalidated its regulations on First Amendment grounds.15

Skokie officials did not rely on the possibility of physical violence as a basis for suppressing the Nazi march. However, as the nation has recently witnessed, derogatory speech can indeed lead to actual physical violence. Three individuals lost their lives in Charlottesville. Hateful expression communicated via social media can also lead to acts of physical violence. As mentioned earlier, one study has discovered a strong correlation between President Trump’s anti-Muslim tweets and incidences of violent hate crimes against Muslims in certain areas of the nation—in particular, those with high Twitter usage.16

Social media use may increase political and other forms of polarization, which thrive in online “echo chambers.”17 The study’s authors concluded that the president’s tweets, which were broadcast on social media to millions, led to an unprecedented increase in violent attacks on Muslims. Although polarization and anti-Muslim sentiment both preceded Trump’s presidency, the study concluded that there was a discernible “Trump effect” in terms of online “hate speech” and hate crimes. They described these findings as “consistent with the interpretation that Trump’s presidential campaign aided an unraveling of social norms that made people more willing to express views that were previously deemed socially unacceptable” and the conclusion that social media may have had a “non-negligible” effect on the translation of “hate speech” into hate crimes.18

Other types of physical harms can occur, for instance if the target of hateful speech lashes out at the speaker. Although the town did not rely on the danger of violent audience reactions against Nazi marchers, Skokie’s lawyers argued that the display of the swastika was the equivalent of a physical attack on Holocaust survivors. If the speaker’s words or expressive acts meet the definition of “fighting words,” they are not covered by the First Amendment. As noted, the “fighting words” category protects the speaker and society from imminent brawls. However, in the Skokie case, the marchers’ words and symbols would not have met the definition of “fighting words” because they would not have been directed to an individual with the intent of inciting an imminent brawl. Nor would they have constituted “true threats”—serious expressions of an intent to harm the town’s residents. This demonstrates both the narrowness of the categorical exclusions and the scope of protection afforded to “hate speech.”

(p.100) Whether or not hateful and derogatory speech leads to individual hate crimes or acts of physical violence, as it permeates society this kind of expression can have deleterious effects on political communities. As Professor Waldron has argued, hateful and derogatory speech imposes significant political harms. Waldron starts from the premise that in a “well-ordered society” not only must all people be protected by the law, but they are entitled to live in confidence of this protection.19 He argues, “Each person . . . should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination or exclusion by others.”

Hateful expression undermines this public good. As Waldron explains: “When a society is defaced with anti-Semitic signage, burning crosses and defamatory racial leaflets,” any expectation of security “evaporates.” The objects of hateful and derogatory speech are deprived of the assurance that the society regards them as people of equal dignity.

Waldron continues: “In its published, posted or pasted-up form, hate speech can become a world-defining activity, and those who promulgate it know very well—this is part of their intention—that the visible world they create is a much harder world for the targets of their hatred to live in.” He describes the implicit message of some of the “hate speech” incidents described earlier as follows:

I know you think you are our equals. But don’t be so sure. The very society you are relying on for your opportunities and your equal dignity is less than whole-hearted in its support for these things, and we are going to expose that half-heartedness and build on that ambivalence every chance we get. So: think about it and be afraid. The time for your degradation and your exclusion by the society that presently shelters you is fast approaching.20

In sum, Professor Waldron argues that the basis for restricting hateful and derogatory speech is not that it leads to psychological or physical harms—although it may. Rather, in his view, the principal reason such expression ought to be restricted is that it produces an environment in which certain individuals in society must live in constant fear of being excluded or marginalized within that society. This harm cuts much deeper and is far more fundamental than merely being “offended” by racially derogatory words. In other words, political derogation or exclusion is a far cry from “political correctness.”

(p.101) Finally, hateful expression may produce constitutional harms. In particular, some have argued that the equal protection rights of persons in historically disadvantaged groups are put at risk by “hate speech.”21 This can be true whether it is the government itself communicating hateful messages, or private individuals creating an environment in which equal protection under law is only possible for some members of society. Thus, some proponents of “hate speech” regulation argue that since equality is a precondition of other rights, including the freedom of speech, it follows that racial and other stigmatizing speech ought not to receive First Amendment protection.22

In an era in which many believe that the president holds and espouses racist views, and some of his supporters interpret his words as licensing the communication of hateful messages, these psychological, physical, political, and constitutional concerns have become more acute. If the war on “political correctness” means that our society will become more outwardly racist, xenophobic, and otherwise dignity-disregarding, then we must again consider whether and how the First Amendment’s protection of “hate speech” can be reconciled with the considerable harms it causes.

Why Protect “Hate Speech”?

Given these significant harms, why does the First Amendment generally protect hateful and demeaning expression? In an era in which “hate speech” appears to be proliferating in public spaces and on social media what explanation can one give, in particular to those who are targets of this kind of expression?

One approach we ought not to take is to minimize, mock, or politicize their concerns. Unfortunately, that has been the primary tactic of the Trump administration. The president’s own statements are defended by the White House and its supporters as either benign or attacks on “political correctness.” The administration and its allies have attacked campus “radicals” and “bureaucrats” who, they say, are engaged in a conspiracy to suppress all conservative opinions and viewpoints. This, incidentally, sounds a lot like the conspiracy theory that has led the president to suggest that Google’s search algorithms ought to be “looked into” based on their supposed political bias.

It is an unfortunate reality that both right-wing and left-wing speakers have been singled out and effectively silenced—including on college (p.102) campuses. Many recent conflicts involving campus speech have centered on the communication of “hate speech” by so-called “conservative” speakers. However, to assert that “radicals” and “bureaucrats” are engaged in some program of partisan oppression downplays the nature and scope of concerns raised when, for example, an avowed white supremacist is invited to a university campus. Even putting aside security and cost concerns that may arise in such instances, whether “white supremacy” is a viewpoint that students or faculty ought to invite into their campus communities and devote significant resources toward presenting is a complex question that involves considerations of both freedom of speech and academic freedom.23

To be sure, there have been some instances of wrong-headed suppression of even non-hateful expression by conservative groups and speakers. Those instances should be condemned. However, they should not obscure the concerns relating to the presence of white supremacist and other right-wing provocateurs on campus.

The Trump administration has sometimes downplayed the harms that this sort of “hate speech” can cause. For example, when he was attorney general, Jefferson Sessions described college students who raised concerns about “hate speech” on campus as “a generation of sanctimonious, sensitive, supercilious snowflakes.” That sort of stereotyping and partisan rhetoric ignores the real and tangible effects of hateful and derogatory speech on college campuses and in other contexts. Indeed, it essentially denies that such harms exist, or that there is anything to debate. More importantly, statements such as this do nothing to explain why the First Amendment has been, and should continue to be, interpreted in a manner that protects the communication of derogatory and demeaning ideas and viewpoints. The attorney general’s rhetoric is not a defense of the First Amendment. It is, rather, an attack on those who dare to question its scope.

To be sure, in some other contexts, the administration has done a better job of reminding the public of the First Amendment justifications for generally protecting “hate speech” despite the harms it inflicts. For example, in “statements of interest” filed in federal court cases challenging restrictions on the free speech rights of university students, faculty, and staff, the government has relied on traditional rules of content-neutrality and concerns about governmental suppression of viewpoints. It has opposed disciplinary provisions that target speech based on its content and other measures that restrict opportunities to engage in robust debate on campus. As Attorney General Sessions also observed at a forum on free speech in the context (p.103) of higher education, “This country protects noisome assembly, immoderate speech and provocative speech. Whether left or right. Suppression of competing voices is not the American way.” Sessions continued: “As Americans, we know it’s far better to have a messy and contentious debate than to suppress the voices of dissenters.”

These kinds of statements may not convince the targets of “hate speech” that the First Amendment ought to allow racist or other forms of bigoted expression. However, they at least hint at substantive explanations based on fundamental First Amendment doctrines and principles.24

As Nadine Strossen recently explained in her book defending the current First Amendment approach to “hate speech,” allowing the government to decide which viewpoints are fit for consumption “would be a license for witch hunts” and install “a legal regime that enables officials to silence their critics.”25 Such an approach would allow government officials to determine the type of dissent and political expression deemed acceptable. That sort of power would be fundamentally incompatible with the values of self-governance, truth-seeking, and autonomy that undergird the First Amendment.

As discussed in chapter 3, the notion that government cannot target certain ideas, opinions, or viewpoints is a core premise of the First Amendment. As noted, this content-neutrality principle prohibits the imposition of official orthodoxy with respect to matters of public concern—including those relating to race, gender, religion, and undocumented status. Allowing government to single out certain statements or communications—outside the narrow categories of uncovered speech discussed earlier, which raise special concerns about imminent disorder or violence—would create the possibility of a mandated official orthodoxy concerning these matters.

During the 1980s and 1990s, concerns about the individual and communal harms associated with “hate speech” led municipalities and universities to adopt anti-bias “hate speech” provisions. The City of St. Paul, Minnesota, adopted an anti-bias ordinance that prohibited cross burnings and other expressive activities that would “arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.”26 The City of Indianapolis adopted an ordinance that provided a procedure for challenging and suppressing certain depictions of women that were considered misogynistic.27 Many university campuses adopted “speech codes” that purported to ban hateful and derogatory communications by students, faculty, and staff.28

(p.104) These measures were all responses to the psychological, physical, political, and constitutional harms described earlier. Governments sought to protect racial and ethnic minorities who were being threatened by cross burnings and other hateful public expression, women subjected to diminished status and societal harms from derogatory depictions of the female body, and students of color who were confronted with expression that interfered with their ability to pursue an education on equal terms and in an inclusive environment. However, all of these provisions were invalidated on First Amendment grounds—many because they singled out certain symbolic acts, communications, and depictions based on the subject matter or viewpoint conveyed.

The First Amendment does not permit government to select the sentiments or ideas speakers can convey—even with respect to matters of race, ethnicity, and gender. Some might object that there are no real ideas or opinions in “hate speech,” and that the only content at issue is a derogatory insult that is not worthy of any First Amendment concern. Putting aside the question of how to narrow the definition of “hate speech” such that it only captures derogatory insults (which may already be unprotected “fighting words”), even hateful speech can be connected to commentary on matters of public concern.

For instance, in Snyder v. Phelps,29 the Supreme Court overturned a civil verdict against the Westboro Baptist Church, whose members picket and protest near the funerals of military personnel killed in action. Church members carry signs communicating hateful views concerning gay men and lesbians, Catholics, the military, and the United States. The Court overturned a jury’s verdict, which was based on the severe emotional distress inflicted on Matthew Snyder’s father. It concluded that the signs conveyed opinions on “matters of public concern,” including the military’s then-enforced “Don’t Ask, Don’t Tell” regulations regarding the service of gays and lesbians in the armed forces and the Catholic Church’s pedophilia scandal. As the Court explained:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow and—as it did here—inflict great pain. [W]e cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.30

(p.105) The result in Snyder is admittedly a hard pill for some to swallow. Why bother protecting such deeply offensive and derogatory expression? The Court concluded that even “hate speech” can touch on ideas or opinions the public needs to hear about in order to make informed decisions about important matters. Where speech about race, religion, or sexual orientation relates to matters of public concern—that is, affirmative action, moral issues, or government policies—it is protected so that speakers and audiences can freely communicate about those things.

That does not give speakers a license to insult or harass. Less noticed, but also significant, were the limits the Snyder Court suggested for the communication of the Church’s derogatory speech. The Court interpreted the speech as concerning several matters of public import. Thus, it did not consist merely of slurs or insults, some of which may be actionable under personal injury or other laws. Moreover, the Court made clear that government officials could regulate the time, place, and manner of funeral protests to ensure that they did not interfere with the funeral itself.

In general, though, enforcement of “hate speech” laws or codes interferes with the search for truth and citizens’ own self-government—two of the primary justifications for protecting freedom of speech. The basic premise of the “marketplace in ideas” is that ideas and viewpoints ought to compete for societal acceptance. In the words of Justice Oliver Wendell Holmes Jr., “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”31 As the Supreme Court has observed, “there is no such thing as a false idea.”32 Thus, “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”33 As Justice Brandeis put it, “the fitting remedy for evil counsels is good ones.”34 Thus, insofar as they express ideas or opinions rather than invite brawls or threaten the physical safety of others, even derogatory or offensive communications are part of the marketplace of ideas.

Further, insofar as governments are authorized to dictate acceptable viewpoints with regard to race, gender, religion, or other matters of public concern, this prevents democratic self-government. When the government bans or restricts certain speech owing to its perceived societal or political harms, it interferes with the robust public discourse and debate that voters and citizens rely on in a democratic system to address these effects. By censoring certain words, messages, and ideas, “hate speech” laws and speech codes can distort public discourses and debates relating to a host of (p.106) issues: immigration, social justice, gender equality, and a variety of other matters of public concern

A long history of official suppression of dissent demonstrates that government enforcement of “hate speech” laws can also have a powerful chilling effect. It may be somewhat difficult at first to see hateful and derogatory communications as a form of “dissent.” After all, dissent is typically associated with minority speakers or ideologies, and the purveyors of “hate speech” seem intent on entrenching majority power by denigrating and excluding racial, ethnic, and other minorities.

However, restricting “hate speech” affects dissenters’ rights in several respects. While it is true that hateful speakers may wish to suppress the rights of minorities, not all “hate speech” is intended to have this effect. For example, a broad definition of “hate speech” would capture within its terms minority opinions about same-sex marriage, the relationship between Islam and terrorism, and the status or rights of undocumented immigrants. In those instances, governmental censorship may be used to suppress fringe, minority, or unpopular opinions.

Indeed, this is precisely what has occurred in many nations that have “hate speech” laws.35 In Poland, a Catholic magazine was fined $11,000 for inciting “contempt, hostility and malice” by comparing a woman’s abortion to the medical experiments at Auschwitz. The Dutch politician Geert Wilders was temporarily barred from entering Britain as a “threat to public policy, public security or public health” because he made a movie that called the Koran a “fascist” book and described Islam as a violent religion. In France, Brigitte Bardot was convicted of publishing a letter to the interior minister stating that Muslims were ruining France. Canada’s human rights tribunal has targeted and harassed magazines for publishing anti-Muslim statements and for republishing the famous Danish Muhammad cartoons.

Another concern with “hate speech” laws is that they will be “enforced to stifle speech of the vulnerable, marginalized minority groups they are designed to protect.”36 In fact, this has been the case with regard to enforcement of “hate speech” laws in several developed democracies. It has also been true on American college campuses, where white students have invoked campus “speech codes” in response to speech by African American classmates. Atheists and agnostics might also be punished for violating “hate speech” laws. So might women participating in the #MeToo movement, who could be held liable for speech that denigrates men. Because (p.107) “hate speech” provisions can be used to further entrench racism and bigotry, many minority speakers and groups oppose them.37

Finally, consider the very real possibility that powerful political factions might use “hate speech” laws to suppress speech that criticizes government. A government empowered to suppress speech on the ground that it communicates “hate” can also target its own critics. For example, the speech of Black Lives Matter and other social justice critics might be suppressed on the ground that it communicates hatred toward white people or the police. “Hate speech” laws can thus be used to stifle even political dissent and criticism of government.

Much more can and indeed has been said concerning the complex implications of “hate speech” laws. My goal is to both acknowledge the harms associated with hateful and derogatory expression and to explain the basic First Amendment doctrines and principles under which this expression remains mostly protected.

The United States is not likely to abandon its exceptional protection for hateful speech. Thus, its people will have to continue to grapple with the free speech, liberty, and equality implications of this exceptionalism. In dealing with “hate speech,” we can both acknowledge the harmful effects of hateful expression, including the toll it takes on our political communities, and defend the First Amendment principles that mostly protect it. What we should not do, and what the Trump administration has mostly done, is to deny these harms or disparage those who are concerned about them as “radicals” and “bureaucrats.” This will only continue to embolden and encourage Americans and others to incite racial and other forms of hatred.

So what can be done? In her book, Professor Strossen discusses and recommends a variety of non-censorial approaches to “hate speech.”38 One approach leverages core First Amendment functions of counter-speech and dissent. President Trump’s derogatory statements actually show how counter-speech can help a political community deal with the effects of hateful speech. Each of candidate and President Trump’s statements concerning African Americans, Mexicans, Muslims, the disabled, women, and others has been met with a chorus of public criticism. President Obama often encouraged students and others to respond to racist and demeaning speech by using their own voices to condemn it. Many have followed that approach.

Public condemnation has not removed the sting and stigma associated with the president’s comments. So far, at least, it has not seemed to change (p.108) either his mind or his behavior. However, as Justice Brandeis suggested, by meeting “evil” counsels with good ones, speakers have communicated their disapproval, solidarity, and resolve. They have stepped forward to insist that America not return to past eras, when racist and xenophobic communications were accepted as a “normal” part of social and political discourse. Mass dissent from the president’s statements has also opened a new dialogue about the harms associated with hateful expression and the degree to which public officials ought to be held responsible for causing or exacerbating them. Each new social media video of a racist or anti-Semitic exchange on the streets, in a grocery store, or in the lobby of an apartment building has brought a chorus of outrage and a measure of public shaming.

Shortly after the deadly events in Charlottesville, at white supremacist demonstrations around the nation protesters and dissenters far outnumbered event participants. But counterdemonstrations are not necessary. Sometimes simply ignoring the speaker communicating hateful messages is an effective form of dissent. Thus, for example, rather than confront alt-right speakers and white supremacists invited to campus, student activists may want to simply ignore them. Not showing up to a scheduled event deprives the hateful speaker of the power a boisterous or even violent reaction confers.

Social media companies should take these counter-speech functions to heart. As this book goes to print, Facebook, Twitter, and other sites are planning to ban certain speakers from their platforms based on the derogatory content they have posted in the past. Since the First Amendment does not apply to these private decision-makers, they can take the censorial approach. However, as several studies have shown, with respect to this content the internet allows for very effective counter-speech and dissent.39 The studies indicate that videos, satire, and other forms of counter-speech can be effective responses to derogatory content. On social media as elsewhere, counter-speech is often more effective at combatting “hate speech” than censorship and suppression.

Of course, “hate speech” is both a form of dissent and a means of suppressing the dissent of minorities. As discussed, one of the effects of some derogatory speech is to intimidate its targets into silence and submission. As Strossen observes, effective counter-speech depends on the empowerment of targeted audiences.40 This, in turn, requires a commitment to educating, counseling, and training students and others to engage effectively with “hate speech.” Minorities and other targets of “hate speech” (p.109) should not bear the entire burden of responding to hateful and derogatory expression. Members of a society who are truly committed to equality and individual dignity ought to condemn such speech and reject its premises. Those opposed to censorship ought to lead the way.

As Professor Strossen also observes, education can be a very effective form of counter-speech.41 Education can entail everything from conveying accurate depictions of minorities in schools, media (including social media), and entertainment. We must also teach targets of hateful rhetoric to resist (to the extent practicable) and process such expression. At the same time, when it comes to the use of racist and other derogatory language, we ought to focus on instilling values such as self-restraint and empathy. As discussed in further detail later, government can play a positive, affirming, and non-coercive role in all of these respects.

In sum, we should neither deny the harms that “hate speech” can cause nor address them through censorship and suppression. The First Amendment may generally permit individuals and public officials to communicate hateful perspectives and opinions. However, the people are not powerless to resist this kind of expression. Indeed, as history and recent experience both indicate, counter-speech and dissent are among the most effective, but by no means exclusive, means of responding to demeaning and derogatory expression.

The Special Problem of Governmental Hate Speech

At various points in the book, I have drawn a distinction between governmental regulation of speech and the government’s own speech. When he speaks in his official capacity, the president’s opinions about race, religion, immigration, and other matters constitute government speech. When he communicates his own views on such matters, outside the context of any official policymaking function, the president is arguably communicating in his capacity as private citizen.

Ordinarily, the communication of private viewpoints would not raise concerns about the violation of others’ First Amendment rights, since such statements carry no official weight or sanction. However, as the lawsuit concerning access to the president’s Twitter page (discussed in chapter 4) demonstrates, it can be difficult to separate the president’s official and private communications. When they issue from the mouth or social media (p.110) account of the president, hateful and derogatory statements raise important and recurring concerns about the implications of governmental “hate speech.” This is another aspect of the “hate speech” debate that merits special consideration in the Trump Era.

The Supreme Court has made clear that when the government itself or particular officials speak, the First Amendment does not limit what they can say.42 This means that when it communicates, the government need not tolerate contrary viewpoints. If the people object to what they perceive to be hateful communications or statements by government officials, they are free to engage in counter-speech and dissent. However, their ultimate remedy is political rather than legal or constitutional. Thus, if voters object to the manner in which President Trump refers to racial and ethnic groups, or reject his policies on immigration and national security as bigoted, they have the ultimate power to vote him out of office.

There are some good reasons for allowing government to speak as it wishes on matters of public concern, free from concerns about content discrimination. In general, it is a positive thing for governments to be involved in debates on matters of public concern.43 They add important perspectives and ideas to debates about economic policy, social justice, immigration, and other matters. Suppressing or constraining those perspectives would inhibit public discourse and exclude important perspectives.

However, throughout history, governments have also communicated racist, misogynist, and bigoted viewpoints. For example, segregationist laws communicated the inferiority of African Americans. These laws were fortified and supported by the “hate speech” of segregationist government officials. Segregationist laws were subject to challenge under the Equal Protection Clause of the Fourteenth Amendment and many were ultimately invalidated. However, during the civil rights era, the courts did not determine whether the government’s own racist communications were themselves subject to any constitutional limits. Nor did they consider the specific constitutional injuries associated with laws and policies that express official views concerning racial inferiority.

President Trump’s statements about white supremacists, Muslims, and women raise similar concerns. Suppose a government official like the president makes statements, either in his official capacity or in contexts in which the capacity is unclear, that denigrate Muslims or express contempt for individuals based on their race, ethnicity, or gender. Are those statements themselves subject to challenge under the Constitution?

(p.111) The government’s immunity as speaker is not absolute. For example, the Supreme Court has indicated that government speech is limited by the Establishment Clause of the First Amendment, which prohibits government from endorsing or denigrating particular religions.44 The Establishment Clause requires that government maintain official neutrality concerning religion. It prohibits official policies or statements that single out particular religions for derogation. So when the president labels Muslims “terrorists,” suggests that all mosques ought to be subject to government surveillance, or imposes a “travel ban” that targets Muslim refugees and immigrants, his statements at least implicate the Establishment Clause.45

To be clear, that does not mean that any Muslim offended by these statements could sue President Trump for violating her religious freedom. Among other things, the constitutional requirement that a person suffer a concrete injury and other complications associated with suing the president for constitutional violations, would prevent many suits like that from going forward. There are also questions about the legal and constitutional significance of derogatory presidential statements. In the litigation over the president’s “Muslim ban” or “travel ban,” the Supreme Court mildly rebuked President Trump for his statements about Muslims and Islam, but ultimately upheld the policy.46 Although the president’s statements were offensive and hurtful to Muslims, they ultimately had no legal or constitutional effect.

What about other constitutional rights? For example, do the equal protection rights guaranteed by the Fourteenth and Fifth Amendments impose any limits on governmental “hate speech”?47 Some scholars think so, at least with respect to expressive laws. For instance, Professor Michael Dorf asks readers to consider a law requiring that all non-heterosexuals wear a visible pink triangle in public places.48 The law compels the wearer to self-identify as non-heterosexual and communicates an “unmistakable message of second-class citizenship.”49 Although Professor Dorf notes that the harm from such a law is partly expressive,50 the principal harm imposed by the hypothetical pink triangle law is subordination—the imposition of second-class status owing exclusively to a person’s non-heterosexuality. That is a core concern of the equal protection guarantee, not the free speech provision. On this reasoning, laws and policies that communicate the second-class status of minorities implicate the equality rights of their targets, in part owing to the expressive effects of these measures.51

Professor Nelson Tebbe has argued that the harm in governmental “hate speech” is that it denies “full and equal citizenship” to targeted individuals.52 (p.112) Professor Tebbe claims that this harm implicates equality, dignity, and free speech concerns. He notes that at least some free speech theorists would likely condemn racialized government speech, on the ground that it distorts democratic discourse.53 Tebbe argues that racialized government speech “can constitute speakers as disregarded or disabled participants in political life.”54 He claims that this affects fundamental rights “to participation in the political community, including the freedom of expression.”55 Relatedly, as Professor Waldron has observed, hateful and derogatory expression can inhibit political participation—including dissent. It follows that official expression of this sort, which emanates from the highest levels of government, can inflict even greater damage on political discourse and political participation.

Constitutional scholars have raised important questions about the constitutional implications of hateful and derogatory communications by governmental speakers. We have not faced these concerns directly for six decades. President Trump’s statements and policies about Muslims, women, the disabled, and others highlight concerns about the effect of governmental “hate speech” on religious, equality, free speech, and other rights. It is important that scholars continue to develop theories about the constitutional and other injuries associated with official “hate speech” and that litigants continue to bring these statements to the attention of courts.

However, at this moment, there are no judicially recognized limits on what we might call “pure” governmental “hate speech”—communications that denigrate or stir up hatred toward members of marginalized or politically powerless groups but are not connected to discriminatory laws or policies. The travel ban case shows that even when such laws or policies do exist, courts can ignore or downplay the hateful sentiments behind them.

Fortunately, there is another way of approaching the special problems of government speech as they pertain to concerns about equality and political citizenship. Although the present era makes the point somewhat difficult to appreciate, governments can make positive contributions to discourses about equality and citizenship. Political leaders can lead and educate the public on achieving equality, rather than divide them along racial, gender, and religious lines. Thus, rather than focus on the harms that government speech can produce, or the possibility of censoring official “hate speech,” we might envision a different role for government. We might imagine government speech that is positive, uplifting, educational, and citizenship-affirming.

(p.113) Scholars have imagined and indeed advocated on behalf of this more affirmative and benevolent form of government speaker.56 For instance, the political scientist Corey Brettschneider has argued that the government should take affirmative steps to ensure that its citizens adopt liberal positions regarding free speech and equality. He thinks governments should do so not through coercive laws, but rather through means such as official communications, subsidy choices, the education of children, and other non-regulatory means.57

ProfessorBrettschneider’s vision is based on a concept he calls “value democracy.”58 He argues that “a proper theory of freedom of expression also contains an essential role for the democratic state to publicize the reasons that underlie rights and legitimate law.”59 Thus, while he would extend free speech protection to hate groups and illiberal organizations that express discriminatory ideas, Brettschneider would also acknowledge the government’s power to “defend the values of freedom and equality against discriminatory and racist challenges.”60 As he puts it, “The state should protect the rights of hate groups, while also criticizing their discriminatory views.”61

During the Charlottesville “hate speech” controversy, President Trump’s public remarks about “both sides” focused only on the first part of this formula. According to Professor Brettschneider, the government “has an obligation to clarify why some protected viewpoints are at odds with the reasons for free expression in the first place.”62 Thus, as it engages in “democratic persuasion,” the government “has an obligation to explain why it respects viewpoint neutrality in the first place.”63 Without this dialogue, Brettschneider contends, “there is a significant risk that the real meaning of the protection of free expression will be inverted.”64 The public will walk away from incidents such as Charlottesville with the mistaken impression that the government supports the viewpoints being espoused, rather than understanding that they are protected in the hope that counter-speech and dissent will soundly defeat them.

Again, persuasion does not entail coercing citizens into believing in equality or respecting the dignity of others.65 Brettschneider acknowledges that there should be “means-based” limits on government expression, including a prohibition on misleading, subliminal, and propagandizing communications.66 He suggests that there could also be a “substance-based” limit, under which government is entitled to express itself only insofar as its communications facilitate ideals of free and equal citizenship.67

(p.114) Within these limits, however, the government’s power to persuade is potentially far-reaching. For instance, in order to facilitate racial equality, governments could persuade citizens to respect the equal citizenship of persons through direct communications, deny subsidies to groups that discriminate, and adopt school curricula that celebrate the contributions of civil rights leaders.68

These proposals may strike some as politically inappropriate and even inherently coercive. Note, however, that the “value democracy” approach does not seek to suppress or censor private “hate speech.”69 Rather, it attempts to leverage the government’s voice to contextualize racist and other subordinating messages. It encourages governments, first and foremost, to educate their citizens as to why such speech must generally be tolerated. In this way, government speech can facilitate debates about the harms such speech entails and the normative reasons for respecting individual dignity and equality.

This positive approach to government speech offers a much-needed alternative to the negative, derogatory, and subordinating voice of our current era. As the Supreme Court observed in its decision upholding the Trump administration’s travel ban, “The President of the United States possesses an extraordinary power to speak to his fellow citizens and on their behalf. Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded.”70

Presidents from Lincoln, to Kennedy, to Reagan, to Bush, to Obama have used official communications to uplift and affirm equality, religious, and other constitutional rights. One enduring lesson from this history is that government speech can be a source of affirmation rather than subordination. It can set a positive example for the body politic. One necessary corrective to the Trump Era is to return to this citizenship-affirming model of presidential communications.


(1.) Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).

(2.) Karsten Muller & Carlo Schwarz, “Making America Hate Again? Twitter and Hate Crime under Trump,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3149103 (Mar. 2018).

(3.) ADL, “2017 Audit of Anti-Semitic Incidents,” https://www.adl.org/resources/reports/2017-audit-of-anti-semitic-incidents#major-findings (Feb, 27, 2018).

(4.) See, e.g., Will Carless, “They Spewed Hate. Then They Punctuated It with the President’s Name,” https://www.pri.org/stories/2018-04-20/they-spewed-hate-then-they-punctuated-it-president-s-name (Apr. 20, 2018).

(5.) Executive Order on Improving Free Inquiry, Transparency, and Acccountability at Colleges and Universities, https://www.whitehouse.gov/presidential-actions/executive-order-improving-free-inquiry-transparency-accountability-colleges-universities/ (Mar. 21, 2019).

(6.) Jeremy Waldron, The Harm in Hate Speech 8–9 (Harvard Univ. Press, 2012).

(7.) Brandenburg v. Ohio, 395 U.S. 444 (1969).

(8.) Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

(9.) Watts v. United States, 394 U.S. 705 (1969).

(10.) Virginia v. Black, 538 U.S. 343 (2003).

(11.) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

(12.) The examples are taken from Waldron, supra note 6, at 8.

(13.) For a thorough discussion of these various harms, see generally id.

(14.) But see Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship 124–25 (Oxford Univ. Press, 2018) (expressing some doubts about the psychological harms typically said to be associated with “hate speech”).

(15.) See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978). See also Phillipa Strum, When the Nazis Came to Skokie: Freedom for the Thought We Hate (Univ. of Kansas Press, 1999).

(16.) See Muller & Schwartz, supra note 2.

(17.) See, e.g., Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton Univ. Press, 2017).

(18.) Muller & Schwartz, supra note 2, at 3.

(19.) Waldron, supra note 6, at 65.

(20.) Id. at 96.

(21.) See, e.g., Toni M. Massaro, “Equality and Freedom of Expression: The Hate Speech Dilemma,” 32 Wm. & Mary L. Rev. 211 (1991); Richard Delgado, “Words That (p.149) Wound. A Tort Action for Racial Insults, Epithets, and Name-Calling,” 17 Harv. C.R.-C.L. L. Rev. 133 (1982).

(22.) See Mari Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story,” 87 Mich. L. Rev. 2320, 2360 (1989).

(23.) See generally Keith E. Whittington, Speak Freely: Why Universities Must Defend Free Speech (Princeton Univ. Press, 2018); Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale Univ. Press, 2017). See also Robert Post, “The Classic First Amendment Tradition under Stress: Freedom of Speech and the University,” https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3044434 (Oct. 1, 2017).

(24.) See generally Strossen, supra note 14. Professor Strossen also discusses several important “procedural” objections to “hate speech” laws, including the inability to fashion a definition that is not unconstitutionally vague in the sense that its terms fail to place speakers on notice of their potential liability. That problem, and others, are in turn related to the lack of any accepted definition for “hate speech” as a category of communication.

(25.) Id. at 7.

(26.) R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

(27.) American Booksellers Ass’n v. Hudnut, 741 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986).

(28.) See Charles R. Lawrence III, “If He Hollers Let Him Go, Regulating Racist Speech on Campus,” 1990 Duke L. J. 430, 450–51.

(29.) 562 U.S. 443 (2011).

(30.) Id. at 460–61.

(31.) Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting).

(32.) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

(33.) Id.

(34.) Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

(35.) See Strossen, supra note 14, at 7, chs. 4, 5, 7 (discussing research concerning enforcement of “hate speech” laws).

(36.) Id. at 15.

(37.) For this reason, among others, underrepresented minorities, who are disproportionately the target of hateful expression, do not uniformly agree that “hate speech” laws are the right approach to combatting racism.

(38.) Strossen, supra note 14, ch. 8.

(39.) Id. at 159–60.

(40.) Id. at 163–68.

(41.) Id. at 168–71.

(42.) See Pleasant Grove City v. Summum, 555 U.S. 640, 647 (2009) (“[I]f the government is engaging in [its] own expressive conduct, then the Free Speech Clause has no application.”).

(43.) See generally James E. Fleming & Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harv. Univ. Press, 2013).

(44.) See Summum, 555 U.S. at 648 (noting that “government speech must comport with the Establishment Clause”).

(45.) See Elizabeth S. Anderson & Richard H. Pildes, “Expressive Theories of Law: A General Restatement,” 148 U. Pa. L. Rev. 1503, 1531–51 (2000) (focusing on equal protection and religious non-establishment limits on government speech).

(46.) See Trump v. Hawaii, 138 S. Ct. 2392, 2417–21 (2018) (reviewing evidence of “animus” in President Trump’s statements, but holding that the statements did not invalidate the travel ban).

(47.) See U.S. const., amend. V, XIV. The Equal Protection Clause of the Fourteenth Amendment limits the actions and communications of states. As it has been interpreted, the Fifth Amendment’s Due Process Clause contains an equal protection component. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

(48.) Michael C. Dorf, “Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meaning,” 97 Va. L. Rev. 1267, 1275 (2011).

(49.) Id. at 1300.

(50.) See Nelson Tebbe, “Government Nonendorsement,” 98 Minn. L. Rev. 648, 657–58 (2013) (positing a government “nonendorsement” principle based in equal protection, free speech, and due process principles).

(51.) See Dorf, supra note 48, at 1293–98 (discussing equality concerns relating to official enactments regarding sexual orientation). See also Helen Norton, “The Equal Protection Implications of Government’s Hateful Speech,” 54 Wm. & Mary L. Rev. 159 (2012) (addressing equal protection limits on government speech regarding homosexuality and gay rights); Deborah Hellman, “The Expressive Dimension of Equal Protection,” 85 Minn. L. Rev. 1 (2000) (discussing equal protection concerns relating to laws regarding homosexuality).

(52.) See Tebbe, supra note 50, at 650 (arguing that government “nonendorsement” principle prohibits “any endorsement that abridges full and equal citizenship in a free society”).

(53.) Id. at 666.

(54.) Id. at 667.

(55.) Id. at 667–68.

(56.) See Fleming & McClain, supra note 43, at 4 (arguing that the state should use its persuasive powers to “help persons develop their moral capacities for self-government and, in that sense, live good lives”); Corey Brettschneider, When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality (Princeton Univ. Press, 2012) (arguing that governments should engage in non-coercive persuasion to convince citizens to adopt liberal positions regarding gay equality and other rights); Abner S. Greene, “Government Endorsement: A Reply to Nelson Tebbe’s Government Nonendorsement,” 98 Minn. L. Rev. 87, 88 (2013) (“With a few limits, the state, as a representative of the people in their capacity as citizens, may and should take distinctive positions on contested issues to achieve certain public goods, and to teach what the state believes to be true.”).

(57.) See Brettschneider, supra note 49, at 88–89 (discussing coercion and means-based limits on government persuasion).

(58.) Id. at 71–72.

(59.) Id. at 72.

(60.) Id.

(61.) Id. at 78.

(62.) Id. at 81.

(63.) Id. at 82.

(64.) Id. at 85.

(65.) See id. at 87 (“The challenge for value democracy, however, lies in simultaneously protecting rights of expression against coercive interference, while criticizing inegalitarian beliefs protected by these rights.”).

(66.) Id. at 88.

(67.) Id. at 89.

(68.) See id. at 96 (urging that “more schools should teach and honor the contribution of Harvey Milk to equal rights for gays”); 131 (contenting that “the Boy Scouts of America should be denied the tax-exemption and tax-deductibility privileges of non-profit status”).

(69.) Id. at 79 (observing that the state must “protect the free speech rights of citizens to make all arguments as speakers and to hear all arguments as listeners”).

(70.) Trump v. Hawaii, 138 S. Ct. at 2417–28.