This new article is here. The Introduction:
In the United States, as is widely known, "hate speech" is generally protected by the First Amendment. Hate speech is considered "free speech" unless it provokes imminent violence or constitutes a "true threat" or "fighting words." No other nation protects the right to express hate so vigorously. Hate speech laws exist in most other countries, where the principles of free speech are said to have no bearing on the expression of racial, ethnic, or religious hatred.
Why are there no hate speech laws in America? There are many possible explanations. Some have suggested that the United States diverged from the rest of the world on hate speech regulation because of deeply ingrained national traits and tendencies, such as Americans' historic fear of government regulation and our individualistic culture. In a book manuscript in progress, I argue that the course that America took on hate speech was not foreordained but was rather the result of contingency and circumstance. Hate speech laws existed in many jurisdictions before the 1950s, and there was a good deal of popular support for hate speech laws.
The reasons why hate speech laws ultimately failed to take root in America are complex. Timing was an important factor. The onset of McCarthyism in the 1950s undercut campaigns during the previous decade to advocate for hate speech laws. Efforts to enact hate speech laws arose during the period of the development of the modern First Amendment, between 1930 and 1960. Hate speech regulations clashed with emerging civil libertarian free speech principles, and free speech ultimately prevailed.
This essay focuses on another significant reason why hate speech laws may have failed to take root in America—the vigorous opposition of minority civil rights organizations to hate speech laws at the time when those laws had their greatest potential for adoption. Minority civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee opposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that any limitations on freedom of speech would hinder minorities' efforts to achieve racial and religious equality.
