What distinguishes hate speech from harassment in the US?

Question

In the United States, hate speech is protected by the First Amendment to the Constitution no matter how morally repugnant it is. But harassment is a crime and is therefore not protected.

Here are some examples of hate speech which US courts have declared are protected.

• KKK rallies in Jewish neighborhoods.
• Westboro Baptish Church pickets funerals with signs that say "God Hates Fags".
• Burning Koran, Bible, national flags, and the Constitution itself.

Harassment on the other hand is generally defined as any of the following when there is no valid reason for it.

• Stalking
• Insulting or tormenting somebody
• Repeatedly annoying somebody (or somebodies) after being told not to
• Scaring somebody
• Requesting dates or sexual intimacy after being told "no"
• Unwanted words or actions intended to cause fear, anxiety, or suffering
• Catcalling or verbal bullying
• Threats to do any of the above
• Threats of violence

What distinguishes these two things?

Answer 1

Most hate speech, such as "Jews are bad," "Muslims are bad, "Catholics are bad," ad nauseum, doesn't target specific individuals. Harassment does. You can burn a Koran, but you can't stalk or threaten someone. Once you cross the line from the general to the specific, it becomes a crime.

Answer 2

Taking Washington law to be typical, harassment in the relevant sense is covered in RCW 9a.46.020. First, to "harass", you must "threaten", specifically,

(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or

(ii) To cause physical damage to the property of a person other than the actor; or

(iii) To subject the person threatened or any other person to physical confinement or restraint; or

(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety

Furthermore, the threat has to be credible ("The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out").

So under the law, insulting a person is not harassment. "Tormenting" is just verbal puffery referring to persistently thwarting a person, or annoying a person. There is no law against being annoying in the US. Asking somebody out on a date is also not a crime, even if you've said "no" (though it would be against the law to disobey a court order, so one should explore the whole court order question). I don't know what catcalling means. Verbal bullying is a vague term referring to things ranging from actually harassing (as defined by law) to doing things that you don't like, that you take personally. The essence of harassment is that you threaten to commit a crime against them.

There is also a separate crime of stalking, which prohibits repeatedly following a person in a manner that a reasonable person would interpret as signaling an intent to harm (criminally).

So actually, your understanding of harassment is a bit divergent from the legal concept. It is legal to repeatedly call your neighbor a moron if he fails to sweep up his leaves, even though in popular culture it might be considered "harassment".

Answer 3

The presence (or absence) of clear and present danger.

When the protections of speech have come up in the past, judges have opined that speech in itself is not a threat. While prohibiting the free exercise of speech is. That said, freedom of expression is limited in certain circumstances. (Possibly the most famous — and cliche — of which is falsely shouting fire in a crowded theater.)

In Schenck v. United States (1919) Oliver Wendell Holmes, Jr. wrote the opinion of a unanimous U.S. Supreme Court:

Holmes in Schenck v. United States (1919):

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

So, one might infer that the courts do not consider the things you listed as protected as creating a clear and present danger. Per Schenck.

Below this line applies to the original (unedited question).

The original question was (paraphrased):

Why is certain forms of freedom of speech legal while harassment is illegal.

The answer to any question of the nature:

Why is X legal while Y is illegal?

is:

Because

1. at least one legislature passed a bill prohibiting Y
2. the bill was signed by the chief executive associated with that legislature (which made the bill a law) and
3. the law has not yet been overturned or declared unconstitutional by a court.

And all those things have not yet occurred in the case of X.

To further answer why would require one to poll every member of the legislature who voted to pass the bill for their individual and personal reasons why they voted the way they did. And a similar poll for any judge who ever failed to overturn the law when they had the chance.

Anything less is conjecture, speculation or opinion.

Answer 4

Your lists are not precise. Threats of violence, for example would be one thing if they were generic and talked about something that might happen some day vs something imminent and believable.

The Wikipedia page on Brandenburg v Ohio gives a good answer

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark decision of the US Supreme Court interpreting the First Amendment to the U.S. Constitution.[1] The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[2][3]:702 Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927)[4] was explicitly overruled, and doubt was cast on Schenck v. United States (1919),[5] Abrams v. United States (1919),[6] Gitlow v. New York (1925),[7] and Dennis v. United States (1951).[8]

Answer 5

In the United States Free Speech Jurisprudence, Speech is considered protected (i.e. Free Speech) until proven otherwise. Thus, the burden of proof that the speech is not protected speech is on the accuser, not the defender. It has been widely held that Free Speech means "Freedom to express the thought that we (collective society) hate." While that opinion is in fact, the dissent (Oliver Wendle Holmes, United States v. Schwimmer) it has been the more quotable portion of the decision to that case.

In your examples of "Hate Speech" lets take the most tame of these examples, the burning of the United States Flag. Generally, the Burning of the Flag is a form of protest of the policies of that country... that is, there is something that the government is doing or did that you disagree with and you want to make your opinion known. No one who loves American and/or Americans would ever burn the Flag of the United States Banner right?

Enter two stage magicians, Penn Jillet and Teller, who do just that... in the Bill of Rights no less! The event is one of the most popular parts of their Vegas show, but if you want to see it, I highly recommend watching either the end of Penn and Teller: Bullshit! season 5, episode 8, where they show it in discussion of Freedom of Speech, or in the West Wing Episode "In the Room" (season 6, Episode 8), where they do this in the White House to boot (or the set of the White House used for a TV show... though this lacks the "restoration" part of the trick).

The point of the trick is that, for every reason such a hateful speech can be spewed, so long as no one is threatened, intimidated, coerced, or harmed, the Speech should be protected for that one use of the foul word that requires it. Should we ban the N-Word (yes I know the irony of self-censoring I just engaged in) and lose it's masterful use in works like "To Kill a Mocking Bird", or "The Adventures of Huckleberry Finn", where it's masterful use was to deliver a striking blow to the people who would speak those words against another?

Because the Nazis mistreated the Jews, do we curb our use of those words in "Schindler's List" or "Anne Frank", both of which decried the horrors of the Nazi Regime with unabashed honesty?

In the United States, you can say just about any abominable word you can think of... it is what the context of the utterance, and more importantly, your actions while uttering those words, that determines if it is protected or not... not the word itself.

"Dort wo man Bücher verbrennt, verbrennt man auch am Ende Menschen."

         -Heinrich Heine ("Those who burn books, will burn man in the end.")