University of Denver Winter 2023

WHAT CAN BE DONE ABOUT HATE SPEECH?

By Janette Ballard

Consider recent developments at two well-known com panies grappling with hate speech: • Kanye West, also known as Ye, enjoyed a lucrative partnership with Adidas until the sportswear giant cut ties with the rapper over his antisemitic comments, saying, Adidas “does not tolerate antisemitism and any other sort of hate speech.” • Elon Musk, espousing free speech, said that his owner ship of Twitter would come with fewer restrictions. Within hours under his new leadership, the platform saw a spike in hate speech. Concerned that Twitter might tarnish their brands, a growing number of advertisers withdrew their ads. According to Chen, boycotts have proved to be an effective way of expressing discomfort or disagreement with a private company’s policies regarding hate speech.

The First Amendment to the U.S. Constitution protects Americans against government limits on freedom of expression, even if that expression includes hateful speech. But who decides what is hate speech? When does hate speech cross the line? And what are the consequences? Those questions intrigue Alan Chen, a Sturm College of Law professor who specializes in First Amendment law and who pays close attention to the roiling discussions around how to contend with problematic speech. The term “hate speech” refers to any form of expression where speakers intend to vilify, humiliate or incite hatred against a group or class of people. However, Chen says, there is no agreed-upon definition for what hate speech is, which makes it difficult to regulate. “The United States Supreme Court has not recognized that hate speech is a category where the government who engages in what many of us may view as hateful speech, whether that’s based on race or religion or political affiliation or another category, is generally protected by the First Amendment,” he adds. “The principle has gener ally been that if you are subjected to speech that is unwelcome in the public space, you can always walk away.” There is room, however, to regulate hate speech based on where it takes place. The Supreme Court recognizes what is known as the “captive audience” doctrine, allowing government to regulate speech in places where it’s difficult for people to escape or walk away, such as workplaces, school rooms, dormitories, even our own homes. The government also is free to regulate hateful rhet oric that rises to the level of a threat or that will likely incite violence. Beyond that, the United States has a system that largely trusts the people—not the government, not legislators, not even the courts—to determine what is within the realm of acceptable speech, Chen says. If people don’t like what they’re hearing in the town square or the marketplace, they can elect to exit that space and go elsewhere. can prohibit or regulate speech in the same way that it is free to regulate, for example, obscenity or threats, two categories of speech not protected under the First Amendment,” he says. “In public settings, somebody

“You might think, well, Twitter is free, Face book is free, so what are they going to lose if you drop off the platform? But, of course, they rely on advertisers, and the lower

numbers they have who are using the platform, the less revenue they can generate with that,” he says. Free speech and the free exchange of ideas are essential to American democracy. But how can a healthy democracy contend with hate speech and minimize its impact? “To some degree, I think regulat

ing hate speech seems like it’s treating the symptoms and not the disease,” Chen says. “That is, hateful speech is really sort of a product of the long history of entrenched systemic racism in our country. And those problems run to the core of many of the things that we are as a nation. “If I could waive my magic wand, we would address the types of systemic inequality in this country and differences in opportunity that have become embedded in the structures of all our institutions.” A more direct response, he adds, would be for people to speak out about equality and protecting those who might be subject to hateful intimidation. Or try to educate people about the effects of hate speech on other people. At the very least, Chen argues, when confronted with hate speech, people can vote with their feet.

24 | UNIVERSITY of DENVER MAGAZINE • WINTER 2023