Professor Elizabeth M. Glazer presented “Volumes of Hate Speech” at West Virginia University College of Law and Cumberland School of Law (Samford University).

ABSTRACT:
Does hate speech cause holocausts? Timelines of events leading up to the Holocaust emphasize the extent to which hateful messages about outsider groups played an essential role in their extermination. Mass genocides in Nazi Germany and Rwanda have been linked to systematic propaganda campaigns. Visitors to Holocaust memorial exhibits are not the only ones who have wondered whether offensive words may have a causal relationship to an eventual genocide. Many First Amendment theorists, too, have wondered about this for some time.

This Article does not take a position on whether there exists a causal relationship between offensive words and holocausts. However, this Article takes as its starting point that many individuals and First Amendment theorists struggle to pinpoint exactly when to regulate hate speech before allowing enough of it to precipitate a holocaust. Those who struggle in this way have sought to balance the liberty of free speech against equality interests that inhere in the prevention of genocide. This balance has been particularly difficult to strike when courts have attempted to adjudicate hate speech cases. This Article aims to aid those who struggle to balance liberty against equality in the hate speech context.

The Article constructs a “cultural harassment” model for use in deciding hate speech cases. Cultural harassment represents an extension of hostile environment harassment doctrine. Hostile environment harassment law has provided victims with redress for having to live and work in environments that have become hostile for them. However, rather than providing these victims with redress for a single offense, as hate speech doctrine has at times done, victims must ground their claims of hostile environment harassment in a pattern of offensive expression or conduct. Because courts’ current determination of whether a particular instance of expression or conduct constitutes hate speech functions like an on/off switch, this model would function like a dimmer.

In three parts, this Article argues that hate speech cases should be decided in accordance with a cultural harassment model. Part I describes the ways that courts and commentators have addressed hate speech cases. Part II provides an overview of hostile environment harassment claims. In light of the “power-based paradigm” shared by hate speech and harassment doctrines, Part III develops a cultural harassment model, which is a hostile environment harassment model for application in hate speech cases, and explains this model’s advantages over other models proposed in connection with hate speech cases.