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origil'1."(') There is no legal category of but delving into them here in detail
hate speech as a type of speech that is would be beyond the scope of this
criminalized (incitement to violence paper. Suffice to say that, at least one
of the philosophical underpinnings is
based on race or religion or other- based on John Stuart Mill's utilitar-
ian philosophy and the discovery of
wise is considered different and is truth. Accordingly:
criminalized, but it must be a clear
...truth is more likely to prevail
and present incitement to violence).
lndeed, in a unanimous case in 2017, through open discussion (even if such
Matal v. Tam, which was concerned discussion temporarily unwittingly
with the protection of the trademark promotes falsehoods) than through
any other means bent on eradicating
of names even though they might falsehoods outright.(z)
offend, the Supreme Court stated,
Justice OIiver Wendell Holmes was
"speech that demeans on the basis of a proponent of the idea that speech
race, ethnicity, gender, religion , dge, should be protected unless it poses a
"clear and present danger" to people,
disability or any other similar ground
is hateful; but the proudest boast of and who introduced it intro Ameri-
our free speech jurisprudence is that
can constitutional j urisprudence.(')
we protect the freedom to express
While the protection of ideas is
'the thought that we hate."'
indeed important, this notion of free
This is why incidents such as the speech perhaps overlooks the types
burning of the Qur'an by the West-
boro Baptist Church in 2010, as well of marginalization that can occur
as some protests by armed individuals against oppressed persons that fall
outside of mosques, and the mocking short of actual physical violence, and
does not take into account that mis-
of religion and religious figures on characterizing beliefs and the adher-
ents of a belief system, or an ethnic
late night TV shows, are considered minority, can incrementally lead to
protected forms of expression. There
are philosophical underpinnings as violence. One can only point to the
to why speech that can be harmful death threats levelled at US Con-
to community relations and may
even incrementally lead to violence 2- Rosenfeld, 1534.
3- See Schenk v. United Stater 249 U.S. 47
is permitted in the United States,
(1e1e).
1- Michel Rosenfeld, "Hate Speech
in Constitutional J urisprudence: A
Comparative Analysis," Cardo<o L. Reu. 24
(zooz):1s23.
38
Dr. Jinan Bastaki
