Omar Bennett
Hate speech is protected under the First Amendment in the United States Constitution. While hate speech is not a legal term in the US, the Supreme Court has repeatedly ruled that what would qualify as hate speech in other western countries is legally protected speech. The First Amendment makes no general exception for offensive, repugnant, or hateful expression.
| Characteristics | Values |
|---|---|
| Protected by | The First Amendment |
| Not protected by | The government |
| Ruling | The U.S. Supreme Court has repeatedly ruled that hate speech is legally protected speech under the First Amendment |
| Exceptions | Hate speech may be prohibited and punished if it falls into one or more of the categories of unprotected speech, e.g. "harassment" or "true threats" |
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What You'll Learn
Hate speech is protected by the First Amendment
The First Amendment makes no general exception for offensive, repugnant, or hateful expression. In Snyder v. Phelps, the United States Supreme Court protected in an 8-1 decision the hateful speech of the Westboro Baptist Church—known for picketing military funerals with signs that read "God hates fags" and "Thank God for dead soldiers"—during a 2006 protest near the funeral of Lance Corporal Matthew A.
In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern even when such debate devolves into offensive or hateful speech that causes others to feel grief, anger, or fear.
As Supreme Court Justice Oliver Wendell Holmes expressed in his 1929 dissent in United States v. Schwimmer, “ [I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”
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The government cannot regulate hate speech
Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
In Matal v. Tam, Justice Samuel Alito wrote that:
> Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate'.
In other words, a free society must allow hateful speech in order to avoid thought control and the censorship of unpopular views by the government. As Supreme Court Justice Oliver Wendell Holmes expressed in his 1929 dissent in United States v. Schwimmer:
> [I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.
The First Amendment makes no general exception for offensive, repugnant, or hateful expression. However, hate speech may be prohibited and punished if it falls into one or more of the categories of unprotected speech, such as "harassment" or "true threats".
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Hate speech is not a legal term in the US
In the United States, hate speech receives substantial protection under the First Amendment, based on the idea that it is not the role of the government to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government's role is to broadly protect individuals' freedom of speech to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern.
While hate speech is protected, there are some exceptions. The Supreme Court has identified narrow exceptions to the First Amendment, including but not limited to speech that constitutes unlawful incitement, true threats, intimidation, or discriminatory harassment. Some of these carefully-defined exceptions encompass speech that one might identify as hate speech. For example, hate speech may be prohibited and punished if it falls into one or more of the categories of unprotected speech, such as "harassment" or "true threats".
The First Amendment's protection is not absolute, and there is no general exception for offensive, repugnant, or hateful expression. However, as Supreme Court Justice Oliver Wendell Holmes expressed in his 1929 dissent in United States v. Schwimmer, "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate".
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Hate speech can be punished if it constitutes a true threat
Hate speech is protected under the First Amendment of the US Constitution. The Supreme Court has repeatedly ruled that hate speech is legally protected speech under the First Amendment. However, hate speech can be punished if it constitutes a true threat, incitement to imminent lawless action, or discriminatory harassment.
In the United States, hate speech receives substantial protection under the First Amendment, based on the idea that the government should not attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Instead, the government's role is to broadly protect individuals' freedom of speech to allow for the expression of unpopular and countervailing opinions and encourage robust debate on matters of public concern.
While hate speech is protected, there are limits to this protection. For example, hate speech that constitutes a true threat or falls into other categories of unprotected speech, such as harassment, may be prohibited and punished. The Supreme Court has also ruled that the government may not discriminate against speech based on the speaker's viewpoint, even if it is hateful.
As Supreme Court Justice Oliver Wendell Holmes expressed in his 1929 dissent in United States v. Schwimmer, "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate." This concept was later echoed by Justice Samuel Alito in Matal v. Tam, who wrote that a free society must give breathing space to hateful speech to avoid thought control and censorship by the government.
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The Supreme Court has protected hateful speech
Hate speech in the United States is protected by the Constitution, which guarantees the right to freedom of speech. While "hate speech" is not a legal term in the US, the Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment.
In Matal v. Tam (2017), the justices unanimously reaffirmed that there is no "hate speech" exception to the free speech rights protected by the First Amendment and that the government may not discriminate against speech based on the speaker's viewpoint. This means that the government cannot regulate, punish, or censor hate speech.
The Supreme Court has also protected hateful speech in cases such as Snyder v. Phelps, where the Westboro Baptist Church was allowed to picket military funerals with offensive signs. As Supreme Court Justice Oliver Wendell Holmes expressed in his 1929 dissent in United States v. Schwimmer, "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."
While hate speech is protected, there are limits. For example, hate speech that constitutes a true threat, incitement to imminent lawless action, or harassment may fall into categories of unprotected speech and be prohibited and punished.
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Frequently asked questions
Yes, hate speech is protected under the First Amendment. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment.
The First Amendment makes no general exception for offensive, repugnant, or hateful expression. Instead, the government’s role is to broadly protect individuals’ freedom of speech in an effort to allow for the expression of unpopular and countervailing opinion and encourage robust debate on matters of public concern.
Hate speech may only be prohibited and punished if it falls into one or more of the categories of unprotected speech, such as "harassment" or "true threats".
