In the post below, guest blogger Gabriel Walters explores the contours of hate speech in a society that both protects and abhors it.  Using the examples of Westboro Baptist Church's organized protests at military funerals, offensive student expression on public college campuses, and the peculiar case of Nazi William White, Walters tells us why we must live with hate speech, but how we don't need to give in to it.

On Hate Speech: The Westboro Baptist Church, Campuses, and Nazis in Virginia

By Gabriel Walters, past legal fellow at the ACLU of Virginia

Westboro Baptist Church: Protests at Military Funerals
The Supreme Court of the United States recently decided a very difficult free speech case.  The infamous Westboro Baptist Church, known for their hateful “God Hates Fags” slogan, had been sued in federal court in Maryland for protesting at the funeral of Marine Lance Corporal Matthew Snyder, who lost his life in Iraq.  The soldier’s father, Albert Snyder, brought the suit, alleging intentional infliction of emotional distress, intrusion upon seclusion (essentially, invasion of privacy), and conspiracy to commit those torts.  The Westboro Baptist Church, led by Fred Phelps and consisting almost exclusively of his extended family, routinely protests at military funerals and in other forums that the church strategically chooses to increase media exposure for its message.  That message is rooted in their belief that God hates America for its tolerance of homosexuality.
The stakes were high, both for the specific parties in the case and for the freedom of speech more generally.  On one side was the father, who had already lost his son, and now was haunted by the hateful messages the church communicated while picketing on public land approximately 1,000 feet away from the church where the funeral was held.  As the Supreme Court summarized, Snyder testified at trial that “he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it.  Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated preexisting health conditions.”  On the other side was the Church, which had lost at trial.  The jury had found for the father, and the Church was ordered to pay punitive damages of $2.1 million.  If the church lost on appeal, it would have to pay.  And of course there was the First Amendment, and what this case would mean for the freedom of speech.  According to law professor and constitutional scholar Douglas Laycock, “It’s a very deeply settled principle that we don’t censor speech just because we’re offended by it, but if there were ever a case to carve out an exception to that principle, this would be it.”
In the end, the Supreme Court sided with the church.  It held, as most Court-watchers expected it to and as the ACLU argued it should, that offensive or hateful speech is nonetheless protected by the First Amendment when it addresses a subject of public concern, as it did here.  Although “God Hates Fags,” “Thank God for Dead Soldiers,” and other messages from the church’s picket signs are vile, they communicate that group’s moral and political viewpoint.  The members of the church have a right to express their views, as we all do.
Speech Codes: Offensive Expression on College Campuses
There is debate among First Amendment scholars about whether, and how, to regulate—in other words, to impose limits upon—hate speech.  In recent decades, that debate has focused primarily on the campus setting, as administrators have sought to enforce school codes of conduct against students who have uttered hurtful racist or sexist epithets.  The ACLU and many First Amendment experts have taken strong positions against such codes.  As Time reported in 1993, “Hate speech regulations, intended to prohibit slurs against minorities, women and gays, have proved nettlesome for . . . universities.  Courts have decreed that the codes at state schools such as the University of Michigan and the University of Wisconsin run afoul of the First Amendment.  At many schools, hate-speech rules are on the books, but are not enforced.”  The article quotes Vincent Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School, “Much hate-speech regulation seems designed not to solve a problem but to make a statement.”  Robert M. O’Neil, former president of the University of Virginia and director of the Thomas Jefferson Center for the Protection of Free Expression, warned against the use of student codes of conduct to punish hate speech in his book Free Speech in the College Community.  Today, O’Neil directs the Ford Foundation’s Difficult Dialogues Initiative, which encourages colleges to create campus programming involving meaningful conversations between diverse students on controversial and sensitive topics.
I first encountered the Westboro Baptist Church when they came to my college campus to protest our theater department’s production of The Laramie Project.  A moving play, The Laramie Project is about the violent homophobia that resulted in Matthew Shepard’s torture and murder.  The Westboro Baptist Church also protested Shepard’s funeral.  When they came to campus, I was among a group of students who marched in counter-protest before entering the theater to watch the play.  There were fewer than 10 church members, but there were hundreds of  us --students and local residents who had come together as a community to express our views.  We had the effect of marginalizing the hateful message of the church members, who left frustrated that they hadn’t drawn any significant media attention to their visit.
The ACLU likes to say that the answer to hateful speech is not regulation, but more speech—by which it means speech that expresses an opposing viewpoint.  The Difficult Dialogues Initiative is one example of this ideal done right, beginning from a place of tolerance and respect and building toward an appreciation of difference.  The counter-protest I took part in is one example of how to engage a hateful speaker who refuses to enter the discussion with any respect or tolerance at all.
William White: Nazis and Threatening Speech
There is a category of hateful speech that remains—and should remain—unprotected by the First Amendment: true threats.  In Virginia v. Black, the ACLU of Virginia’s famous cross-burning case, the U.S. Supreme Court wrote that true threats, falling outside the scope of the free speech clause, “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
The ACLU of Virginia recently wrote a “friend of the court” brief on behalf of a self-proclaimed Nazi in the criminal case U.S. v. William White, pending on appeal at the United States Fourth Circuit Court of Appeals.  White is a white supremacist who allegedly threatened individuals in virulently racist terms by phone and email.  The federal district court in Roanoke convicted him of making threats under a federal statute.  Our brief does not defend the specific statements White made.  Rather, we contest the general threat conviction on the grounds that Virginia v. Black requires that, in order to be punished consistently with the free speech clause, he must have specifically intended to make a threat.  He wasn’t convicted under that standard because the jury was instructed otherwise, and we believe wrongly so.  The jury convicted him under a “reasonable person” standard, which says that if a reasonable person familiar with the statement and the circumstances surrounding its utterance would find it threatening, then it is not protected speech.  This “reasonable person” standard runs counter to the Court’s plain language in Virginia v. Black.
There are other problems with the “reasonable person” standard.  First there is the classic and general objection that the reasonable person is a legal fiction.  Second, in the particular context of speech, there is the objection we argue in our brief.  The right to speak freely should not be limited after the fact by the reaction of a “reasonable” listener.  Otherwise, speech that resides at the margins of political or social acceptability will be unduly punished or chilled for fear of punishment.  Speakers with views that are hyperbolic, rude, inarticulate, or politically radical—but not actually intended to be threatening—would risk criminal punishment under the “reasonable person” standard.
At time of writing, the Fourth Circuit has not yet scheduled oral arguments in the case.
Speech Can Harm
I want to conclude by acknowledging and grappling with the very real and profound harms that hate speech produces.  In Albert Snyder’s case, his emotional reaction to the Westboro Baptist Church’s message was severe enough to manifest itself physically.  On campus and elsewhere, racist and sexist epithets denigrate and demean the humanity of those who have suffered historic discriminations and degradations and continue to live in a society that is grossly unequal.  Statements made by Nazis like William White often have the same effect.
It is easy enough to say that these are the costs we must bear collectively to live in a society in which we are free to express our views, political and otherwise.  And it is true that if the government can punish the speech of a Nazi based on either its content or its unintended effect upon the listener, then it can punish the speech of a socialist, or an anarchist, or a Democrat, or a Republican.  That is a power that no government should have.  But it is also true that we don’t always bear that cost collectively.  Albert Snyder suffers the emotions stirred by the Westboro Baptist picketers’ disrespect far more profoundly than I do, and probably more than I can even understand absent similar experience.
Perhaps, then, with the outsized benefit we enjoy for living in a free society, we collectively bear a correspondingly large burden of a different sort.  Perhaps it is incumbent upon us to speak out wherever and whenever we encounter hate speech, to counter it not through government action but through correction or, where that fails, counter-protest.  To do so is not only to repudiate hatred but also, in so doing, to build community.