The 3 Rules of Hate Speech: Free Speech Rules (Episode 2)

The 3 Rules of Hate Speech: Free Speech Rules (Episode 2)

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The three rules of hate speech. Rule one: the First Amendment protects all ideas: loving,
hateful, or in between. In the United States hate speech is just a
political label like un-American speech or rude speech. Some people use the phrase broadly, some more
narrowly but there’s no legal definition because there
is no hate speech exception to the First Amendment. As the Supreme Court held in 1974: “Under the First Amendment there is no such
thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience
of judges and juries but on the competition of other ideas.” Or in 2017: “…the proudest boast of our free speech
jurisprudence is that we protect the freedom to express
‘the thought that we hate.'” That’s from Matal V Tam, in which the government
denied a trademark to an Asian-American band because the band’s name, The Slants, was seen
by some as a racial slur. The government wasn’t even trying to ban the
name, it was just denying a generally available
benefit, trademark registration, to people who used the name. But even that, the Court concluded, was unconstitutional
viewpoint discrimination and thus violated the First Amendment. Rule 2: Some speech is not protected by the
First Amendment but that’s true regardless of whether it’s
bigoted or hateful. For instance, threats of violence are constitutionally
unprotected. That includes all threats, racist threats,
threats of police officers, business owners, the President, anyone. Likewise, intentionally inciting immediate
violence is sometimes punishable. Classic example, giving a speech to a mob
outside a building urging them to burn it down. But again it doesn’t matter if the speech
is outside a synagogue, a police station, or a recycling center. Personal insults said to someone’s face might
also be punishable as so-called fighting words. Again though that’s true regardless of whether
the insults stem from personal hostility, or group hatred related to race, religion
and the like. Indeed in 1992 the Supreme Court struck down
an ordinance that specifically targeted bigoted fighting
words. Rule 3: Hate crime laws are constitutional
so long as they punish violence or vandalism, not speech. The classic example is Wisconsin v Mitchell, the 1993 case in which the Supreme Court unanimously
upheld hate crime laws. Todd Mitchell, a black man, urged some friends
to beat up a white boy because the boy was white. Wisconsin law made the beating into a more
serious crime because the boy was targeted based on his race. The Court said this is fine because “…a
physical assault is not by any stretch of the imagination expressive conduct protected by the First
Amendment.” And while the law increased the punishment
because of the defendant’s intent the law often punishes more because of why
they did what they did. Killing someone for money will get you a harsher
punishment than killing them out of momentary anger. Likewise, firing an employee because of his
race will get you a civil lawsuit, firing an employee for most other reasons
won’t. None of this covers the mere expression of
hateful ideas or the use of words that some see as hateful. Those are indeed generally protected by the
First Amendment. But why? The justices generally agree that racist ideas,
for instance, are wrong and dangerous. Why would the justices say hate speech is
constitutionally protected? Because they don’t trust government officials
to decide which ideas are wrong and dangerous. They worry that if government officials had
the power to ban evil ideas that power would quickly stretch to punishing
a wide range of debate and dissent. And they see the First Amendment as requiring
that distrust. In the words of Justice Black, echoed by the
Supreme Court in 1972: “The freedoms guaranteed by the First Amendment
must be accorded to the ideas we hate or sooner or later they will be denied to
the ideas we cherish.” So to sum up, there is no hate speech exception
to the First Amendment, threats of violence and incitement to violence
are not protected but that has nothing to do with their hateful
content, and hate crime laws can punish violence or
vandalism based on the offender targeting particular
groups but that doesn’t allow punishment of supposed
hate speech. I’m Eugene Volokh and I approve this message.

100 thoughts on “The 3 Rules of Hate Speech: Free Speech Rules (Episode 2)

  • TheCzyzo2 Post author

    fuck offfffffffffff

  • Vaibhav Gupta Post author

    Great video.

  • Michael Swirsky Post author

    The sad thing is the vast majority of constitutional "experts" including a lot of conservatives and libertarians, believe the bill of rights was a limitation on state and local governments. It wasn't, it only limits the actions of the federal government ("Congress shall make no law…"). It's also frustrating that this video was based almost entirely on precedent and not more importantly on the original intent of the founders.

  • K-Tech PL Post author

    Great video

  • Non Mirage Truth Vision Post author

    Kind of sad we have to explain this, what was school for again?

  • mookosh Post author

    The problem is when you encourage violence against racial groups.

    I think that's permissible which is dumb.

  • Sergio Samayoa Post author

    I wonder who is the one who down voted.
    May be he/she has a good reason(s) or simply is an IDIOT who is against Reason for no reason.

  • Matt Post author

    Fucking a right buddy.

  • tolkarius58 Post author

    Okay, my next sentence will incite violence: I will beat my meat, and you should too!

  • Ham & Eggs Post author


  • Erik Kovacs Post author

    Recycling center = Nickelback recording studio. Ha!

  • Robert the Komodo Dragon Post author

    Exactly! It is completely allowed to not like someone’s ideas, but that’s no reason to strike them down.

  • Erik Kovacs Post author

    White boy = #FFFFFF (hex value of white in 256 bit color space for you non nerds)

  • Larry Manier Post author

    Nice. We aall need a reality ✔

  • jeffersonianideal Post author

    A "hate" crime may not result in punishment by government for speech but it essentially punishes thought. This type of authoritarian edict is also ludicrous.

  • Casperian Post author

    Mark my words, the left and the right are going to began chipping away at the 1st Amendment by making “anti-semitism” and criticism of Israel’s occupation of Palestine illegal and will slowly add to this list of illegal thoughts and words from there.

  • Nobody Matters Post author

    I hate all this talking and free speech. Can everyone please shut the fuck up?

  • z3ke_sk1さん Post author

    Threats should be protected too. It should never be illegal to blow hot air from your mouth.

  • EasytheGoon Post author

    Chewbacca isn't a ewok…

  • Suraj Grewal Post author

    Nickleback recording studio = recycling center.

  • 13345bob Post author

    Where is episode 1?

  • sweetcara14 Post author

    All "hate crimes" laws should be abolished, since they were always unconstitutional and it's not even possible for them to be evenly applied. Who cares what someone's "reason" is for killing, raping, maiming, etc? The consequences are still the same.

  • toby schmel Post author

    Great vid.

  • Beardoggin89 Post author

    Wonder what Hans will have to say about this video? Probably find a way to down the US and the capitalist free society

  • Trevor Doge Post author

    All speech ought to be legal.

    How can you honestly punish a citizen for expressing violent words?

    What if it's just two people who are rambunctious and just kidding around?

    Are you gonna step in as a third party and call the police?

    That's incredibly stupid.

    All speech ought to be free speech, even violent speech.

    Once someone actually makes good on their threats, only then should punishment come into the equation… And even then, there ought to be increments in the severity of the punishment, corresponding to the level of violence perpetrated.

    Like, if two guys are joking around and a buddy puts the other one in a pretend chokehold, that shouldn't be prosecuted. But if that chokehold results in injury, death, or even just unwanted contact, then punishment ought to come back into the equation.

    But as a general rule, we ought to side with less governance over human interaction.

    Laws and punishment should only be used to deter the worst excesses of human malevolence…and even then, we can't really expect to eradicate all of it.

    "He who governs least, governs best."

  • zoo Post author

    Share this with the Google top brass.

  • TheVideomaker2341 Post author

    Rule #4: It doesn't apply for minorities or women.

  • Borussia Doormat Post author

    Great quote from the Supreme Court

  • Right to fight back RTFB Post author

    Ya now no court will charge a black person beating up a white person with a hate crime.

  • Eukatae Post author

    I feel like there should be hate speech laws. We should empanel a group of experts.

  • ThisnThatPackRat Post author

    So, go through the Tweets regarding the Covington situation and look at all those unprotected statements calling for violence. Clearly violations of acceptable free speech, yet Twitter let's them stand. Hypocrisy at its finest.

  • Joe Vartanian Post author

    Explaining the actual law huh? Countdown to Youtube demonetization. . .

  • Al Storm Post author

    1'st rule of hate speech, there's no such thing as hate speech.

  • A J MacDonald Jr Post author

    The US is going the way of Europe… Hate speech: a warning from Europe – a spiked podcast special

  • Midi Mercury Post author

    Discrimination is a right and the minimum wage should be zero

  • C. dogg Post author

    "They worry"- in the UK their worrys are reality

  • David Cisco Post author

    Remember ? "I disapprove of what you say, but I will defend to the death your right to say it"
    Strong character, common sense and thick skin are scarce these days.

  • True north 30 Post author

    Great video..too bad not enough people will hear it!

  • Will Strong Post author

    Eugene Volokh is fantastic, more videos with him please!

  • Savage Trump ES Post author

    Go fuck yourself

  • wampastompastomp Post author

    It’s funny that a hate crime Supreme Court case had an African American man as the plaintiff.

  • V Denton Post author

    US fed court ruled TX SO deputies sexually harassing their jail nurse, locking her in a cell with a capital murderer and Sgt she reported and threatened to record yelling WOMEN DESERVE RAPE was "rude crude crass and obtuse" also i was only able to say the word retaliation in federal court to explain why i had to move out of the state after i filed suit. Lawyers for cops quickly changed subject when i said that word so i was not able to document how the sheriff approached my husband in the bank demanding he "control your wife" and finding my horse picked out of a herd and shot with a slug.
    It was exactly like a rape trial. I was treated by cop lawyer like a crazy lying bitch gaslight my behavior attacked like I deserved this treatment my childhood and family shamed in court. UNBELIEVABLE
    Liberty and justice is a laughable joke in America for women.
    It's almost as bad as Saudi Arabia for women here and getting more regressive every decade

  • Julian T. Post author

    Yeah, that's the law as it is now . The thing is that lefties want to change the law itself. And I fear if the popularity of banning hate speech grows, sooner or later, we'll have enough justices to say that it's not protected under the First Amendment anymore. Remember some things that weren't protected by it sixty years ago, like obscenity, are considered First Amendment now. Things can change.

  • Maple Flavor Post author

    sure but the constitution is wrong. free speech is absolute

  • Merlin-Hans Hiiekivi Post author

    let me give you a hateful hug

  • Mr. JustAGuyWithALightsaber Post author

    Hate speech is a legal term, just nobody actually uses its definition correctly. Hate speech is when you give a speech to people explicitly telling them to go kill or injure people and how to do so, and as a result of that speech someone listening actually carried out that crime. That’s hate speech, and it should be fairly obvious why it would not be supported, as well as why 99.999999999999% of claimed hate speech today is not actually hate speech but supported, constitutional free speech.

  • Blop Jones Post author

    It's only a problem when you're talking about Jews….

  • Wouter Cloetens Post author

    As a nerd, I approve of this video. I chuckled at Chewbacca telling Spock that the Star Trek fanbase sucks, and at the #ffffff sign.

  • Loathomar Post author

    Great video. Another exemption is, the classic "Yelling fire in a crowd" when there is not a fire, though it is part of the "inciting violence" exemption in that you created a "clear and present danger" with your words. Even though, here, you are not telling people to do anything illegal, like when people are "inciting violence", you are still creating real harm to people with words.
    And in civil law the 1st amendment is no where near as strong. Defamation and other things, like firing someone based on race or sex, can cause a lawsuit.

  • Alex Carter Post author

    I am amazed at the number of people around me who don't understand this concept.

  • M Buck Post author

    “If this were legal advice, it would be followed by a bill.” Truer words were never spoken

  • Mandatory Carry Post author

    ¿Vandalism isn't protected? Huh.
    … ¿Oops?

  • Sam Omiotek Post author

    I sense Jordan Peterson fanboy energy

  • ChornyiKot Post author

    Quick!! Send this to Google, Youtube, Facebook, Twitter, Patreon, Pintrest…… not that it would change anything but I like the idea Silicon Valley techno-censors will reconsider their censorous ways if only shown the light!

  • King Peppy Post author

    Fuck the police has a great beat and you can dance to it.

  • Nicole Butler Post author

    I hate pumpkin soup.

  • frzstat Post author

    Great video! Very entertaining and makes us think. Thanks Prof. Volokh 🙂

  • bug5654 Post author

    I don't even know what to say…RAARGHHH! WAAARK!

  • Hotrod2k82 Post author

    Wookies are not Ewoks

  • mark spannar Post author

    No such thing as hate speech.

  • La Republica canal oficial Post author

    Who cares about the U.S? I live in Argentina and i cand sey what ever i want, There even is a Nazi party in here

  • Ruthless Savage Hatred Post author

    Unpopular opinion: threats of violence should be protected under the first amendment

  • VideoTzar19 Post author

    Problem today is people confuse "you said something that hurt my feelers" with hate speech.

  • kcthinker Post author

    The term, "extra illegal," bothers me. It is seems the definition is not controllable.

  • W K Post author

    Strictly speaking, any hate-crimes law is immoral simply because it punishes based on beliefs, which everyone has a human right to express. If a crime is committed because of the beliefs, the crime must be punished, but not the belief behind it. This was Civics 101 when I was a kid. sixth-grade stuff. What the hell happened to my country? We're now flunking sixth-grade civics en masse!

  • Peter Post author


  • Pete Post author

    Is this statement an incitement to violence? "Murderers should get the death penalty." How about this one? "The US should bomb Iraq."

  • Thomas Healey Post author

    Anyone know when Mostly Weekly comes back? (If at all…)

  • Savage Dove Post author

    You should not be jailed if someone willing does something harmful because of what you said. They have complete control over your self, though i dont like that kind of behavior.

  • macsnafu Post author

    Legal or not, you'll still get called out on social media and in real life for various and sundry perceived politically-incorrect speech.

  • Recovering New Yorker Post author

    1:13 Yet Madonna can say she has thought of blowing up the White House! Can you say double standard? I knew you could.

  • HuntingTarg Post author

    This is freaking digital gold. Bravo Zulu (that's Navalese for 'outstanding job').

  • Spencerianism Post author

    I hate speech.

  • SusanBailey AmazingEstate Post author

    The three rules of hate speech:
    The first amendment.
    The first amendment.
    The first amendment.

  • Dan Z Post author

    The part where they explain that if you give the government that power, there is NOTHING stopping them from abusing it or using in on something you care about, is the crazy import part that the left cannot understand.

  • voronOsphere Post author

    Excellent Presentation!

  • stringX90 Post author

    Great video that I can feel comfortable sharing with my progressive friends. Would love to see more like it.

  • Viktor Post author

    Nice chewbaca dildo you've got there!

  • chetopuffs Post author

    Hate isn’t a crime!
    If you can’t tell me what I can love; you can’t tell me what I can hate.

  • Denise Allison Stout Post author

    Yes burn nickel back please

  • Nice Guy Eddie Post author

    Anarcho-Communist Antifa uses violence to shut down free speech.

  • Rory Scott Post author

    As a Trekkie I protest the treatment of my Star Wars fan counterparts. To compare that bold space epic to harry potter, even hypothetically, is a low blow. Haven't they suffered enough during the prequels?

  • Tom Smith Post author

    The purpose of the right to Freedom of Speech is NOT to allow you to say something which might offend someone else; it is to allow SOMEONE ELSE to say something which might offend YOU! If you don't believe in this, you are an ENEMY of Freedom of Speech, and consequently do not deserve to have this right.

  • jin choung Post author

    fuck. yes!

  • Brandon Saremi Post author

    11 CNN reporters viewed this video.

  • rollo clevich Post author

    2:18 "killing someone for money will get you a harsher punishment than killing them out of momentary anger"

    Wait a second, doesn't killing "out of momentary anger" describe the most negative interpretation of the action of the driver at Cville? His GPS indicated he was trying to get home and the two passengers he dropped off several minutes earlier said he was calm, not agitated. Maybe it depends on the definition of "momentary." IIRC, he sped up for about five seconds and reached 25-28 mph at point of impact.

  • kenp3L Post author

    Here's the problem: Say hateful ideas, speech, and/or expressive conduct = H. The penalty for H in the absence of any criminal conduct is X. As per the concept described in the first part of the video, X = 0. Now, The penalty for some specific bone fide crime, in the absence of H is Y. The penalty for the same crime when accompanied by H is Z. Y + H = Z. As the video explains, Z > Y. That is, Y + H > Y. Subtracting Y from both sides of the inequality gives, H > 0. Therefore, the idea expressed in the second part of the video is a violation of the ideal of the first part. Enhanced penalties for H is a form of viewpoint discrimination.

  • Cnn is Fakenews Post author

    So can we have our freedom back now and Unban Alex Jones from youtube?

  • G Hooghkirk HIGHLIFE Post author

    Please stop saying hate speech exist. It doesn't

  • Jim K Post author

    Even if such laws existed, would burning down the Nickelback recording studio be considered a hate crime? Or would it be considered a public service?

  • Marissa Oswald Post author

    Bhahahahaha! 1:25 Such a subtle burn!

  • Leonard Wong Post author

    FOcus on freedom of TRUTH.

  • Salvation Pictures Post author

    Ewoks are genetically inferior and have a very low IQ. Deep down, everyone knows this. Is this hate speech, or not?

  • AMERICAN PATRIOT Post author

    Why is it that i post FBI statistics on race and crime on Facebook and get a 30 day suspension for hate speech then?

  • Brandon McGowan Post author

    but Don Lemmon told me that hate speech is any opposing viewpoint…

  • Lizard Leliel Post author

    I think most people are worried about speech being used to incite violence. Unite the Right rally, they were chanting "What do we want? Race war!" at one point, and the proud boys regularly encourage their members to be violent. Yet people are being more afraid of freely speaking against radical violence-inciting speech out of fear of being labelled "anti free-speech".

  • Conrad Gifford Post author

    Bout to say if view point discrimination is illegal. Good to know.

    Interesting how cnn says civil rights laws are to protect a small group being in danger when in fact that’s false, the civil rights laws go both ways and are in place to protect a persons constitutional rights, not because they’re inferior.

    Last I checked the Supreme Court recently ruled hate speech isn’t hate speech its just speech someone else doesn’t agree with but if it’s speech which calls to danger to others like yelling there’s a fire in a movie theater then yes that is illegal.

  • TheRisky9 Post author

    A lot of people seems to think that the world works the same way Twitter does. If the mob deems it unacceptable on Twitter, it's therefore banned.

  • R Jones Post author

    Freedom of speech is a much bigger concept than, and precedes, the First Amendment. This video should have been entitled "First Amendment Rules", not "Free Speech Rules".

  • sinistar99 Post author

    Is violating Disney's copyright on Chewbacca's image protected under the First Amendment?

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