Why is hate speech protected

Libraries should be prepared to prosecute, or support prosecution, of all bias-motivated criminal acts and provide aid and support to victims of such crimes and those targeted by hateful conduct. Reports of hateful speech and hate crimes in libraries is escalating in a time when reported hate crimes are at an all time high. In responding to hate speech and hateful conduct, public libraries should be aware that they operate under the First and Fourteenth Amendments and the associated court opinions governing access to the library as a designated public forum.

There is an established body of case law holding that public libraries are a type of public forum, and that every person using a public library has a First Amendment right to access, use and take advantage of all the services the public library has to offer, without regard to the person's background, identity or economic status or their beliefs, opinions, or views. Thus, under law, public libraries cannot discriminate against a library user or deny the user access to library resources and services based upon their views or beliefs.

This principle applies to the provision of access to books, media, programming and the internet as well as publicly available meeting room space. Knowing that the presence and activities of some groups in public libraries, while constitutionally protected, can cause fear and discomfort in some library users and staff, there are some strategies public libraries can employ to embrace their role as welcoming, inclusive, and responsible spaces that go beyond the adoption and enforcement of user behavior policies.

One strategy is to forgo the provision of public meeting room spaces for all users, allowing the library to fully control the messaging that takes place in its building and spaces. A second strategy is to employ the library's right under the First Amendment to speak in its own voice as a government agency about matters of importance. The library can exercise its prerogative to convey strong messaging that counters messages of bias, hatred and discrimination.

Such messaging can be proactive, affirmative, and ongoing as well as a reaction to an incident of hateful conduct or speech. Libraries, could, for example, mount prominent signage throughout the library and in meeting rooms announcing its support for equality, diversity, and inclusion, and its belief in the human dignity of all persons, especially those in marginalized communities. Library-sponsored programming and services can echo this message.

What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions?

In answering these questions, the history and the core values of the First Amendment should be our guide. During our nation's early era, the courts were almost universally hostile to political minorities' First Amendment rights; free speech issues did not even reach the Supreme Court until when, in Schenck v. A turning point occurred a few months later in Abrams v. Although the defendant's conviction under the Espionage Act for distributing anti-war leaflets was upheld, two dissenting opinions formed the cornerstone of our modern First Amendment law.

Brandeis argued speech could only be punished if it presented "a clear and present danger" of imminent harm. Mere political advocacy, they said, was protected by the First Amendment. Eventually, these justices were able to convince a majority of the Court to adopt the "clear and present danger test. From then on, the right to freedom of expression grew more secure -- until the s and McCarthyism.

The Supreme Court fell prey to the witchhunt mentality of that period, seriously weakening the "clear and present danger" test by holding that speakers could be punished if they advocated overthrowing the government -- even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.

Finally, in , in Brandenberg v. Ohio, the Supreme Court struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, "imminent lawless action. The Brandenberg standard prevails today. First Amendment protection is not limited to "pure speech" -- books, newspapers, leaflets, and rallies.

It also protects "symbolic speech" -- nonverbal expression whose purpose is to communicate ideas. In its decision in Tinker v. Des Moines, the Court recognized the right of public school students to wear black armbands in protest of the Vietnam War. In Texas v. Johnson and again in U. Eichman , the Court struck down government bans on "flag desecration. Government can limit some protected speech by imposing "time, place and manner" restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations.

But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination -- and that is unconstitutional. When a protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passersby in debate. But they do not have the right to block building entrances or to physically harass people.

The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn't need a First Amendment. History teaches that the first target of government repression is never the last.

If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure. In that sense, all First Amendment rights are "indivisible. Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them.

It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we 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.

Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.