The Day of Silence, a project of the Gay, Lesbian and Straight Education Network (GLSEN), is a student-led day of action when concerned students, from middle school to college, take some form of a vow of silence to bring attention to the name-calling, bullying and harassment – in effect, the silencing – experienced by GLBT students and their allies. This year the Day of Silence will be Friday, April 17. More than 500,000 students from nearly 6,500 junior high and high schools in all 50 states and Puerto Rico have participated since the effort began 14 years ago.

On April 1, Congressmembers Eliot Engel (D-NY) and Tammy Baldwin (D-WI) re-introduced a resolution to highlight the National Day of Silence, a day in which students from around the country take a vow of silence to bring attention to the anti-GLBT name-calling, bullying and harassment students, teachers and other school staff face.

“Sadly, violence and discrimination against LGBT youth is all-too-common in American schools. It is a national disgrace that students feel threatened in school simply because of their sexual orientation,” said Rep. Engel. “As a former public school teacher, I am proud to introduce this resolution. Americans need to know that thousands of children each day go to school deprived of a happy adolescence because of the insensitivity and cruelty shown by some fellow students, teachers, staff and parents.”

“Lesbian, gay, bisexual, and transgender students continue to face pervasive harassment and victimization in schools. As students use their silence to demand safe schools, we in Congress must use our voices to support them,” said Congressmember Baldwin.

“It is tragic to have any child suffer and what makes this worse is that it is completely preventable. Bullying and harassment of LGBT students stems from ignorance and can only be repaired with education. By helping other students, teachers, staff and parents understand the plight of LGBT students, we can help these students live a happier childhood and enable them to earn their education free from fear,” added Rep. Engel.

Feb. 12, 2009, marked the first anniversary of Lawrence King’s murder. King, an eighth-grade student at E.O. Greene Middle School in Oxnard, Calif., He was shot by fellow classmate Brandon McInerney. The prosecution brief from the trial reveals that, according to students, King was not, in fact, sexually harassing McInerney, as previously believed. McInerney was the aggressor, teasing the effeminate King for weeks and vowing to “get a gun and shoot” him. Multiple students provided accounts of a growing hostility between the two boys, the document shows.

King’s death struck a chord with parents, teachers, students and gay-rights advocates concerned that McInerney’s alleged bullying of King had been minimized by school authorities.

Since King’s death, teachers have sought training in how to identify gay and lesbian students who might be struggling with their sexual identity. Teachers also have asked for resources to help students who have already come out or who may be experiencing bullying.

For advocates working to end the bias, bullying and harassment directed at GLBT students in our schools, the murder of Lawrence King was the nightmare scenario come to pass. For years, GLSEN, has sought to alert educators and the public to the daily reality of anti-gay language and harassment in our schools, and to the potential for this pervasive denigration to lead to more serious acts of violence. Nearly 75 percent of high school students report hearing “faggot” or “dyke” frequently or often at school and more than one in five GLBT students has been assaulted at school.

Which brings us to the topic of hate speech itself.

Two lesbians walk down University Avenue holding hands, enjoying a quiet evening after a pleasant dinner. A car drives by and a 20-year-old college kid in the passenger side leans out the window and shouts, “Fucking Dykes!”

A teenager walks down the street with matching T-shirts that read, “Faggots will burn in hell.”

Are these examples of hate speech?

According to San Diego State Professor of Philosophy and Ethics J. Angelo Corlett, the answer is no.

“There are lots of things we might call hateful speech, and most of us would recognize it as hateful because there is some sort of emotive response that is clear to the listener,” Corlett argues. “And even if the person means it in a hateful way, that doesn’t make it what we call ‘hate speech.’ It may be highly offensive speech, and we can all agree there are very serious problems, but we must be very careful what we call ‘hate speech.’”

Defining hate speech, then, can be a tricky business. Wikipedia, the online publicly monitored encyclopedia, defines hate speech as follows:

“Hate speech has become a controversial term for speech intended to degrade, intimidate, or incite violence or prejudicial action against a person or group of persons based on their race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, moral or political views, socioeconomic class, occupation or appearance (such as weight, height and hair color), mental capacity and any other distinction-liability. The term covers written as well as oral communication and some forms of behavior in a public setting.”

The Supreme Court weighed in on the definition of hate speech in the 2003 case Texas v. Johnson: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

This arises, of course, from the First Amendment which states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.”

These amendments are collectively known as the freedom of expression.

George Orwell once famously said, “If liberty mean anything at all, it means the right to tell people what they do not want to hear.”

However, cases over time since our nation’s constitution was written have categorized five distinct areas of unprotected speech: incitement to illegal activity and/or imminent violence; defamation and libel; obscenity; threats and intimidation; and false advertising.

If then, argues Corlett, you can prove that either of the above examples meets one of those five criteria, then they might fall under an unprotected area of expression.

“You have to understand the context in which the events occurred,” Corlett explains. “Maybe that guy who yells ‘faggot’ or ‘dyke’ out the window – maybe nothing happens, and so it’s insulting, demeaning, offensive. But we must be very careful not to call everything we see as racism, sexism, homophobia – which are very serious problems – we want to be careful that we aren’t crying wolf. We want to make sure that even though those expressions may be serious moral offenses and evils, we don’t want to be too broad in our sweep of lumping things into hate speech. Because then when a situation such as when those gentlemen were coming out of Pride two years ago were are beaten, (and I can only imagine what epithets were used against the gay men loudly, horrifically. It’s in this type of situation, where the actions showed that the language was hateful. [Then] we can truly classify that language at that moment as hate speech. And that is when we should really get them.”

Sandra Raskovich, a psychiatrist specializing in hate speech, agrees.

“Racial slurs in certain cases have to be taken in the civil context they are delivered,” Raskovich says. “We have to get to the root of what is causing it. Racial slurs accompanied by someone throwing a glass bottle at you, then that’s when criminal statutes kick in, and we have what are called ‘enhancements,’ where, say, instead of getting five years for getting into a fight at a bar, you might get seven and a half, if while, in the process of beating the guy up, you say some sort of racially-based or orientation-based slur, showing, in essence that you are targeting the person because of their race, gender, or sexual orientation.”

The scenario of a teenager wearing such a T-shirt as described above is not so far-fetched. In fact, earlier this year, a full court declined to review the case of Chase Haper, a then-sophomore at Poway High School who, in 2004 was removed from class for wearing a T-shirt that read on the front, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back read, “Homosexuality is Shameful, Romans 1:27.”

Judge Ronald Gould went so far as to say the t-shirt constituted, in his opinion, “hate speech.”

Hate speech falls under the category of what is commonly referred to as “semi-protected speech,” as opposed to “protected” (the right to criticize the decisions of an elected official) and “unprotected” speech (the right to yell “fire” in a crowded theater).

There are two main “tests” to determine if the issue at hands falls under the protection of First Amendment.

The Garrison Test, from the 1964 Garrison v. Louisiana requires hate-motivated speech to be protected if the speaker is purely speaking out of hatred – however uninformed he or she may be – as long as he or she believe they are “contributing to the free interchange of ideas and the ascertainment of truth.” During the case, Louisiana District Attorney Jim Garrison stated in a press conference that the slow and often-hindered process of the local judicial system raised “interesting questions about the racketeer influence on our eight vacation-minded judges.” Garrison was fined $1,000 for libel. The Louisiana State Supreme Court upheld the conviction, but the U.S. Supreme Court argued it was aimed at ascertaining the truth.

The second test is called the R.A.V. test from R.A.V. v. City of St. Paul, a 1992 case that involved a teenager burning a cross on a black family’s lawn. The Court ruled that since the conduct contained a political message, it should be protected, but cautioned that hate crimes that include willful hateful acts in association with hateful expression should be dealt with in a more severe manner.

“We also have to be careful that we don’t over-police our culture’s language,” Sherman argues.

Raskovich explains.

“We should always be cautious that we don’t label conduct as criminal activity, even if it is offensive, because sometimes that which was once deemed to be offensive by the those in power may no longer be offensive,” Raskovich explains.

“Advocating the end of slavery was once deemed to be offensive in speech, and yet now we would say that advocating slavery is offensive,” Raskovich says. “Times change, and perceptions change, and public opinion changes, so we must be careful.”

That being said, however, neither Raskovich nor Corlett say GLBT-directed hate speech, like racially-motivated hate speech, is unlikely to ever be acceptable.

In fact, just as it is now inconceivable, 40 years after the Civil Rights movement, for a magazine to scrawl the N-word across its cover, 40 years from now, we may look back and wonder how the Gay & Lesbian Times could print the word “Faggot” on it’s cover, as it did in 2007.

In 1942, a Jehovah’s witness addressed a police officer as a “God damned racketeer” and “a damned facist. He was convicted of using hate language. The case, Chaplinksy v. New Hampshire, argued that there was a category of so-called “face-to-face” epithets that was entirely outside of the First Amendment. The Court labeled these words “fighting words” which “by their very utterance inflict injury” or tend to incite an immediate breach of the peace and which “are no essential part of any exposition of ideas,”

Nearly 50 years later, in 1988, Hustler Magazine ran a satiric ad for Campari liquor in which the ad, entitled “Jerry Falwell Talks about his first time,” describes Falwell’s first sexual encounter was with his mother while drunk in an outhouse. Virginia courts awarded Falwell $150,000 for “intentional infliction of emotional distress.” In an unanimous decision, the Supreme Court distinguished political satire – even in its form outside of political cartoons – from the face-to-face epithets in the Chaplinsky case.

In... [the aforementioned] R.A.V v. City of St. Paul. Justice Antonin Scalia reversed the conviction on the grounds that the City of St. Paul’s ordinance unconstitutionally criminalized expression based on the political preference of legislators. In essence, the court was establishing that the winds of change of political parties in power cannot dictate what is and is not hurtful expression. The court established that the Chaplinsky case’s “fighting words” are not a category of speech that is entirely outside of First Amendment protections.

The following year, the Supreme Court unanimously upheld Wisconsin v. Mitchell, in which the state of Wisconsin had imposed a harsher penalty on Todd Mitchell who was sentenced for aggravated battery because his selection of his victim was on account of the victim’s race. “The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendment. We hold that it is not.” This has been the bedrock for hate crime sentencing enhancements, establishing a premise of hate conduct, and not simply hate speech, as the litmus test for sentencing enhancements.

In 2003, the Supreme Court divided sharply on a case involving a Virginia man, Barry Elton Black – an active member of the Ku Klux Klan – who was convicted for violating a Virginia statute against cross burning. The court majority argued that simply burning a cross does not violate First Amendment speech protections, unless it can be shown that an intent to intimidate is present. The case has further established that hate-speech crimes must be accompanied by physical actions with the intent of harm in order to fall into an unprotected category of First Amendment protections. In a minority dissent, Justice Clarence Thomas argued that cross-burning in and of itself is conduct and not simply expression, and therefore should fall under the Wisconsin v. Mitchell decision.