Körero Whakamauähara : Hate Speech The Court recognised the harm caused by hate speech, not only to the targeted group, but also to society at large. “Hate speech lays the groundwork for later, broad attacks on vulnerable groups,” Justice Rothstein wrote. “These attacks can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.” A “particularly insidious” effect of hate speech is that it inhibits the expression of the targeted group, Justice Rothstein noted.205 The Court went on to hold that the prohibition against hate speech involves balancing between freedom of expression and equality rights. The Court concluded that the limitation on freedom of expression by the prohibition of hate speech, when properly defined and understood, is demonstrably justified in a free and democratic society. United States The First Amendment to the United States Constitution provides substantial protection for speech no matter how offensive its content.206 However, there are categories of speech that receive no First Amendment protection. These are fighting words, libel, obscenity, child pornography and true threats. The First Amendment does not protect conduct that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment.207 Hate crimes There are no statutes prohibiting hate speech in the United States, however there are federal statutes against hate crimes. Federal criminal civil rights laws impose criminal penalties for the deprivation of certain federal rights, privileges, or immunities. A majority of these laws prohibit violent and intimidating acts motivated by animus based on race, ethnicity, national origin, religious beliefs, gender, sexual orientation, or disability.208 The United States Department of Justice enforces federal hate crimes laws that cover certain crimes committed on the basis of race, colour, religion, national origin, sexual orientation, gender, gender identity, or disability. The Department of Justice began prosecuting federal hate crimes cases after the enactment of the Civil Rights Act of 1968.209 The 1968 statute made it a crime to use, or threaten to use, force to wilfully interfere with any person because of race, colour, religion, or national origin and because the person is participating in a federally protected activity, such as public education, employment, jury service, travel, or the enjoyment of public accommodations, or helping another person to do so.210 In 1968, United States Congress also made it a crime to use, or threaten to use, force to interfere with housing rights because of the victim’s race, colour, religion, sex, or national origin.211 in 1988, protections on the basis of familial status and disability were added. In 1996, Congress passed the Church Arson Prevention Act.212 Under this Act, it is a crime to intentionally deface, damage, or destroy religious real property, or interfere with a person’s religious practice, in situations affecting interstate or foreign commerce.213 The Act also bars intentionally defacing, damaging, or destroying religious property because of the race, colour, or ethnicity of persons associated with the property. Sakatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467 at [75]. United States Constitution, amendment I. 207 American Library Association “Hate Speech and Hate Crime” (December 2017) <www.ala.org/advocacy/intfreedom/hate>. 208 Alison M. Smith, “Overview of Selected Federal Criminal Civil Rights Statutes” Congressional Research Service Report Prepared for Members and Committees of Congress (16 December 2014) < https://fas.org/sgp/crs/misc/R43830.pdf > at 1. 209 The United States Department of Justice “Federal Laws and Statutes” < https://www.justice.gov/hatecrimes/laws-and-policies>. 210 Civil Rights Act of 1968 Pub Law No 90–284, § 82, Stat 73. 211 Criminal Interference with Right to Fair Housing 42 USC § 3631. 212 Damage to Religious Property, Church Arson Prevention Act 18 USC § 247. 213 Damage to Religious Property, Church Arson Prevention Act 18 USC § 247. 205 206 37