Hate Speech

[Volokh, Eugene]

	Again, wouldn't that depend on the statute?  For instance, if
the statute simply requires targeting "because of [the victim's] race
[etc.]" -- as many "hate crime" statutes do -- then it doesn't matter
whether the person has a "hostile intent."  

	Thus, for instance, an Orthodox Jew's attacking another Jew for
not observing the Sabbath (when he wouldn't have attacked a non-Jew)
would qualify as a hate crime under California law -- no less than an
anti-Semite's attacking a Jew because he's Jewish.  One doesn't have to
ask whether someone is "self-hating" (a term that I think is unhelpful
for various reasons); the question is simply whether he selected the
target based on race, religion, and the like.  Likewise, if a black man
attacks another black man on the theory that the target is somehow a
"traitor to his race" (or if a white man attacks another white man on
the same theory), the attack would be a hate crime, even if the attack
is not motivated by hostility to the target's race.

	Of course, if a statute is written to require hostility based on
race, then the matter may be different (and less clear).  But that's why
I thought it was pretty important to ask (1) exactly what statute is
involved, and (2) exactly what the defendant's speech or action was.

	Eugene

> -----Original Message-----
> From: Nareissa L. Smith [mailto:nsmith at fcsl.edu]
> Sent: Friday, March 20, 2009 4:01 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Hate Speech
> 
> Actually, Professor Silverberg, I think that is an interesting and
complicated
> question.  I think that this will be an emerging issue in fighting
words
> jurisprudence.  The answer turns in part on the issue of "reclaimed"
words - words
> that have been used to harm members of oppressed groups, but have
> subsequently gained favor *within* those groups as a way of taking
some of the
> sting off the of the word.  Many in the sociological community debate
whether
> such a phenomenon exists.  However, assuming it does, I believe the
proper
> result in your sceanrio would require an examination of the intent
behind the use of
> the word.  Thus, a person who is an outside to the group at issue
would be
> presumed to possess malintent, but a person who is a member of the
group would
> not necessarily be absolved, provided the requisite showing of
"hostile intent" or
> whatever could be shown.   I doubt this would satisfactorily end the
issue for all
> time and likely raises other issues, but these are my initial
thoughts.
> 
> NLS
> 
> -------------------------
> 
> Nareissa Smith
> Assistant Professor
> Florida Coastal School of Law
> 8787 Baypine Rd.
> Jacksonville, FL  32256
> (904) 680-7674
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu
[conlawprof-bounces at lists.ucla.edu]
> On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
> Sent: Friday, March 20, 2009 6:10 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: Hate Speech
> 
>         There is no liability for "hate speech," nor a hate speech
> exception to the First Amendment.  Certain kinds of bigoted speech may
> be covered by some constitutionally permissible speech restrictions --
> e.g., bans on threats, fighting words, and so on -- just as certain
> kinds of nonbigoted speech may be covered by such restrictions.  So
I'm
> not quite sure what to make of the question, but if a specific statute
> and a specific statement are given, I think we should be able to give
an
> answer.
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> > bounces at lists.ucla.edu] On Behalf Of Silverburg, Sanford R
> > Sent: Friday, March 20, 2009 2:44 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: Hate Speech
> >
> > Could a self-identified, self-hating member of a
> racial/religious/ethnic group who
> > issues a remark towards a member of the same group in accordance
with
> criteria
> > set forth in R.A.V., be held liable for hate speech?
> >
> > Sanford Silverburg
> >
> >
> > Sanford R. Silverburg, Ph.D
> > Professor
> > Department of History and Politics
> > Catawba College
> > Salisbury, NC 28144
> > US
> > ssilver at catawba.edu
> > _______________________________________________
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