Why We Need to Criminalize Hate Speech in the United States to Curb Hate

October 21, 2021 Updated September 18, 2022 Articles

By: M Baqir Mohie El-Deen, MPAC Policy Program Manager

Anti-Hate Crime March at the University of Delaware, Photo by Xander Opiyo via Flickr.

Last month, a neighborhood dispute in Virginia Beach shocked the nation when the local police department issued a public statement that the neighbor that has been blasting racist slurs and sounds on his loud speakers cannot be charged with a crime. The victimized black neighbors had been complaining to the authorities for months about their neighbor and decided to go public, stating that their children are terrified about going out of their home and are inquiring about the n-word that is often blasted on their neighbor’s audio speakers. This case adds another dynamic to the national discourse occurring about the white supremacist threat in America, and the discussion about controlling hate speech on social media without impeding on the civil liberties of Americans. Before diving down into that discourse, let’s analyze why the Virginia Beach Police Department was not able to criminally charge the racist neighbor that had been harassing his neighbors — how did he get away with it?

To answer this question, we have to understand the relevant legal codes. First of all, there is no criminal law against hate speech in the United States, as compared to many nations in Europe, where it is a crime to use racial slurs or defame ethnic groups. Why didn’t the neighbor get charged with a hate crime? A hate crime is a crime that is motivated by discrimination against certain protected groups. In order for the city prosecutors to bring hate crime charges against the racist neighbor, that neighbor must first commit a crime that is defined in our legal code, and then hate crime charges can be applied in his sentencing to up his legal punishments.

The next question is, why can’t the neighbor be charged with harassment when he is clearly harassing his neighbors? Our legal code lacks an umbrella crime of harassment, although there are penal codes for harassing actions, like stalking or making violent threats, neither of which occured in Virginia Beach. Breaching the peace is a crime in some states; however, in the Commonwealth of Virginia, it is only a crime in public space, and not applicable to the neighbor since he’s blasting the audio out of his home. Still, there are some federal and state laws that criminalize discrimination in housing. The prosecutors tried citing the Fair Housing Protection Act, but those only prohibit use of force or threats of violence and are therefore not applicable to this case.

The Virginia Beach case is disheartening, and it reveals a weakness in our federal criminal code. In an era where our nation has experienced the most hate crimes in more than a decade, it is due time that our nation adopts criminal charges for hate speech. Minorities, including American Muslims, in the United States experience the brunt of these crimes, which have grown exponentially during the Trump Presidency. The Trump administration created an environment where hate crimes against American Muslims surpassed the levels directly after the attacks on 9/11.

Criminal charges are not created to punish citizens, but to repel them from partaking in actions that can be criminally prosecuted. Deterrence theory is a psychological theory that states that people are most likely to be dissuaded from committing a crime if the punishment is swift, certain, and severe. Deterrence theory is often argued against, and it is no secret that criminalizing hate speech in the United States will not solve the problems of our nation. It is, however, a start. Our legislators have the privilege of analyzing studies of hate speech, and criminal charges in other parts of the developed world, where some nations have gone as far as adopting criminal charges for online hate speech like in the European Union, as they draft these laws.

Alongside the criminalization of hate speech in the United States, our nation needs to adopt policies and practices that better educate our nation against hate. Our school curriculums must educate our youth to appreciate diversity, and dispel stereotypes about others, for if we want effective and long term change, it must occur organically. In layperson’s terms, we cannot cut out hate cold turkey in the United States, however, to battle the threat of hate that’s tearing apart the social fiber of our nation, we must create an environment that stops hate from breeding in our society. In the meantime, criminalizing hate speech will stop many from spreading their hate onto others.

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