Lawmakers want to force Californians to take anti-hate speech training

California lawmakers are considering two bills that would make “anti-hate speech training” a requirement. Assembly Bill 1803 would require employers with five or more employees to incorporate such training into existing, already-mandated sexual harassment prevention programs. Under Assembly Bill 1578, a similar training would be mandated for all state and local elected officials.

But “hate speech” includes speech protected by the First Amendment — speech the government has no business trying to snuff out with legal mandates. But also, it has no clear or consistent definition. Because of that vagueness, efforts to regulate “hate speech” risk giving the government sweeping authority to suppress views it doesn’t like. Internationally, similar laws have indeed often been used to silence political dissent. Adopting “hate speech” into law, even under the perhaps benign-sounding “anti-hate speech training,” blurs the line between unlawful conduct and protected expression.

Existing California law already requires sexual harassment training. That training is designed to provide “information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.” Of course, the state can regulate workplace conduct, including unlawful sexual discrimination and harassment. The state can also require employees to get training in such areas. But these bills go further.

Is hate speech legal?

Is hate speech legal? Most hate speech is protected by the First Amendment and cannot lawfully be censored, contrary to a common misconception.

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As the Assembly Labor and Employment Committee’s analysis of AB 1803 acknowledges, “hate speech itself is not illegal but can violate employment law if it rises to an actionable level of workplace harassment or discrimination.” The problem is, most common definitions of “hate speech” end up including a lot of speech that the Constitution actually protects. In fact, even the examples used by the committee’s analysis include speech that would be protected under the First Amendment.

Recent amendments to AB 1803, citing speech that “vilifies, humiliates, or incites hatred” based on protected characteristics, do little to resolve this problem. Terms like “vilify,” “humiliate,” and “incite hatred” lack clear legal meaning, so you end up with a vague mandate that fails to distinguish between protected speech and unprotected conduct — and that vagueness has consequences. 

Private employers, uncertain about how to comply, are likely to err on the side of caution by discouraging or restricting lawful speech in the workplace. Many contentious public issues, such as the war in Ukraine or the Israeli-Palestinian conflict, generate strongly held and opposing views about what constitutes offensive or even “hateful” expression. Requiring employers to adopt or promote particular viewpoints about such speech risks infringing the First Amendment rights of both private employers and employees.

The government does have greater leeway when it comes to its own speech, which means legislation can require public agencies to conduct such training for elected officials. But even there, perhaps especially there, caution is warranted. Training that frames protected expression as something government agencies should suppress risks encouraging the use of public office to silence lawful speech. As Jonathan Rauch has written, “The big problem for proponents of hate-speech laws and codes is that they can never explain where to draw a stable and consistent line between hate speech and vigorous criticism, or who exactly can be trusted to draw it. The reason is that there is no such line.”

We have seen these ideas tried on campuses, and we have seen them fail time and time again. We should not be exporting them to workplaces at large or into the offices of elected officials. 

Training that makes clear that certain protected expression should be avoided is nothing new. FIRE has raised similar concerns in the context of mandatory diversity training on college campuses. Such training can extend beyond fostering a respectful or inclusive environment and instead signal which viewpoints are acceptable, pressuring participants toward ideological conformity. To give a couple of examples: 

• At the University of Oklahoma in 2020, participants in a mandatory diversity training program had to keep retrying questions until they chose statements acknowledging their agreement with the University’s chosen political viewpoints.
• At Boston University (which, as a private institution, was offending academic freedom but not the First Amendment) in 2021, faculty members were required to choose the institution’s preferred answers to contested social and political questions to advance, compelling their speech. 

Another place where efforts to limit “hate speech” often backfires is on campus, where it ends up chilling and policing basic political expression as well as research speech, precisely because hate is subjective.

• At San Francisco State University in 2007, students were charged with harassment and creating a hostile environment for protesting terror groups. Why? They had stepped on the flags of Hamas and Hezbollah, which have the word “Allah” on them. Months later, a federal judge ultimately barred the university’s enforcement of its policy.
• Infamously, and also in 2007, a student employee at Indiana University-Purdue University Indianapolis was charged with racial harassment because, during his work breaks, he read the book Notre Dame vs. The Klan: How the Fighting Irish Defeated the Ku Klux Klan. A shop steward told him reading the book (about a 1924 street fight between students and Klan members and how students handled anti-Catholic prejudice) was like bringing pornography to work.   

And attempts to regulate speech internationally have resulted in similar chills. For instance, in 2023 alone, British police arrested more than 12,000 people for their online speech under two laws, the Communications Act of 2003 and the Malicious Communications Act of 1988. People have been arrested for sharing memes, arguing online, and insulting people in conversations with third parties.

California can and should combat unlawful discriminatory and sexual harassment. But trying to combat the ambiguous concept of “hate speech” is unwise, and in most cases, unconstitutional.