Expert: Michael Troy - 7/16/2003

Question
I would like to know if there is any legislation, federal or state, regarding hate speech or incitement to racism
thank you!

Answer
Hi there,

In the US is is extremely difficult to pass hate speech legislation because most such laws would violate the First Amendment guarentee to free speech.  Similarly, any law prohibiting incitement to racism would be unconstitutional because people have the right to hold racist views and beliefs.  They simply may not act on those views and beliefs in certain circumstances.

Several states have passed laws designed to punish the propagation of sexist or racist ideas.  Court have uniformly struck down such laws.  See, e.g. this case:

http://cyber.law.harvard.edu/vaw00/hudnut.html

The Supreme Court has held that even unprotected speech such as "fighting words" cannot be punished if the law only seeks to punish the racist point of view:

http://laws.findlaw.com/us/505/377.html

Most laws that do pass muster require some additonal crime or other wrongdoing.  For example, this year the Supreme Court struck down a Virginia law that bans burning crosses with the intent of intimidation.  The court held that such a law would be valid if the State could prove intimidation, but could not simply assume intimidation from the act of Cross burning.  In other words, if the KKK wants to go into the woods and burn a cross for themselves to watch that must be allowed.  You can read the case here:

http://www.supremecourtus.gov/opinions/02pdf/01-1107.pdf

The Court positions on this matter do not deter politicians from passing such politically popular laws.  You may find this site helpful in locating some of the curretn hate speech laws:

http://overlawyered.com/topics/media.html

You may also find these articles helpful:

http://www1.law.ucla.edu/~volokh/#HARASSMENT

I hope this helps!
- Mike