united-states constitutional-law freedom-of-speech first-amendment
How can anti-hate-speech laws be inconsistent with the First Amendment when (for instance) libel laws are consistent with it?
<p>Although the first article of amendment to the Constitution of the United States states that</p>
<blockquote>
<p>Congress shall make no law ... abridging the freedom of speech</p>
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<p>this proscription is far from absolute, as various forms of speech that cause harm to others can give rise to civil or criminal liability.</p>
<p>Given the numerous forms of harmful speech <em>not</em> protected by the First Amendment (many of which are <em>less</em>-potentially-harmful or less-<em>directly</em>-harmful than many forms of hate speech), it strikes me as extremely odd that <a href="https://en.wikipedia.org/wiki/Hate_speech" rel="nofollow noreferrer">hate speech</a> <em>is</em> a form of protected speech which cannot constitutionally be restricted by Congress or the states:<sup>1</sup></p>
<ul>
<li>If Dỳo libels Isabel's restaurant in his magazine column, causing his readers to avoid her restaurant and resulting in her losing business, Isabel can sue him for causing her financial loss via his libel.</li>
<li>If Sirleck kills Francine by speaking a lethal auditory cognitohazard, he can be arrested and tried for murder.  (Even if he &quot;merely&quot; puts her in a vegetative state or drives her insane, he can still be arrested and tried for that.)</li>
<li>Yet, if Ronald kills Kayleigh by using incessant transphobic hate speech to drive her to suicide (or &quot;merely&quot; causes massive psychological trauma resulting in various delightful severe psychological and psychiatric disorders), he gets off scot-free.</li>
</ul>
<p>Why this perplexing inconsistency in what, harmful-speech-wise, is constitutionally-permissible and what is not?</p>
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<p><sup>1</sup>: The argument given in <a href="https://law.stackexchange.com/a/57068/12499">this answer</a> to <a href="https://law.stackexchange.com/q/13367/12499">a related question</a>, that</p>
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<p>The key is that holding these beliefs, and stating these beliefs, hurts nobody.</p>
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<p>doesn't hold water, as, while <em>holding</em> hateful beliefs (<em>without</em> stating or acting on them in any way) is indeed harmless, <em>stating</em> hateful beliefs can cause real, concrete, immense, and potentially-<em>lethal</em><sup>2</sup> psychological harm to the victim of this speech.</p>
<p><sup>2</sup>: As (among many many other examples) the countless LGBTQ+ children and teenagers who've been driven to suicide by being victims to incessant hateful speech could testify (were you to reanimate them with their mental faculties intact, at least).</p>

<p>One notes your third example is rather more specific:  you describe someone as being driven to suicide. People have been held accountable for counselling people to commit suicide (as in this <a href="https://ottawacitizen.com/news/local-news/two-14-year-old-girls-charged-with-counselling-suicide-in-criminal-harassment-probe" rel="nofollow noreferrer">Ottawa case</a>, where two girls were charged).  What does &quot;hate crime&quot; add to the situation, especially given it covers only a small subset?</p>
<p>As for the claim that &quot;hate speech&quot; in general causes suicide in the group, it is impossible to establish a direct connection between the speech and the death, let alone that it caused the death, given that you have to exclude other factors.</p>
<p>Alleging direct psychological harm from the speech means, basically, that anyone, anywhere, can be silenced at any time in the absence of actual evidence.</p>
<p>Furthermore, a lot of forms of speech can cause people to commit suicide.  A son may commit suicide on hearing that his comatose father is recovering, because he was embezzling his father's property and realizes he will be found out.  That speech is not punishable, and it's far more direct.</p>

<h2>Because the US has a different history from the rest of the developed world</h2>
<p>Anti-hate speech laws <em>are</em> consistent with free speech in Canada, Australia, the UK, most of Europe etc. They just aren’t consistent with free speech <em>as it is practiced in the USA</em>.</p>
<p>The legal basis is simple: the Constitution prohibits government interference in free speech in simple and straightforward language and the Supreme Court has interpreted that to mean that anti-free speech laws are subject to <a href="https://en.wikipedia.org/wiki/Strict_scrutiny" rel="nofollow noreferrer">strict scrutiny</a>. Defamation laws are not an abridgement because the government is not involved: defamation involves one person suing another.</p>
<p>The philosophical basis for the distinction between the US and Europe is also straightforward. The US was a colonial nation who fought a war of independence against what they saw as a <em>foreign</em> tyrannical government and most of the Constitution is about placing limits on government so that wouldn't happen again. European nations mostly have Constitutions that were developed after the Second World War where they had seen their <em>own</em> governments taken over by people who weaponised hate speech (or if not them then their neighbours who then invaded them) and used it to kill millions of people and they wanted to prevent that from ever happening again. The UK and the rest of the Commonwealth, as with many things, tend to fall somewhere in the middle.</p>
