Malcolm Rivera
Hate speech is protected by the First Amendment in the United States, despite the fact that a plurality of Americans (around 45%) think it shouldn't be. 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 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.
| Characteristics | Values |
|---|---|
| Hate speech protected by the Constitution | Yes |
| Hate speech a legal term in the US | No |
| Hate speech protected by the First Amendment | Yes |
| Hate speech criminalised when it directly incites imminent criminal activity or consists of specific threats of violence | Yes |
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What You'll Learn
The First Amendment protects hate speech
The First Amendment requires the government to strictly protect robust debate on matters of public concern even when such debate devolves into distasteful, offensive, or hateful speech that causes others to feel grief, anger, or fear. Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.
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.”
Nearly 90 years later, in 2017, Justice Samuel Alito expressed this concept in Matal v. Tam with a homage to Justice Holmes, writing: "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.' A free society must give much breathing space to hateful speech in order to avoid thought control and the censorship of unpopular views by the government."
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Hate speech can be criminalised if it incites imminent criminal activity
Hate speech is protected by 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 most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. This is because the First Amendment requires the government to protect robust debate on matters of public concern, even when such debate becomes offensive or hateful.
However, this protection is not absolute. Hate speech can be criminalised if it incites imminent criminal activity or consists of specific threats of violence targeted against a person or group. This is known as the "true threat" exception to free speech. Courts have found that expression generally cannot be punished based on its content or viewpoint, but any expression that constitutes a true threat, incitement to imminent lawless action, or discriminatory harassment can be criminalised.
The Supreme Court's decision in Snyder v. Phelps provides an example of this legal reasoning. In this case, the Court held that the First Amendment protected the speech of a group of protesters who had made offensive and hateful statements about a deceased soldier. The Court found that the protesters' speech was protected because it did not directly incite imminent criminal activity or consist of specific threats of violence.
Despite the legal protection of hate speech, a plurality of Americans—roughly 45%—think that it should not be protected by the First Amendment. This tension between free speech and hate speech highlights the complex nature of constitutional rights and the ongoing debate over how to balance these rights with the need to protect individuals and groups from harmful and offensive speech.
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Hate speech is not a legal term in the US
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. This means that the government may not discriminate against speech based on the speaker's viewpoint, even if it is hateful or offensive.
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."
Nearly 90 years later, in 2017, Justice Samuel Alito echoed this sentiment in Matal v. Tam, writing, "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.'"
While hate speech is protected by the First Amendment, it is important to note that courts have found that expression generally cannot be punished based on its content or viewpoint. However, hate speech can be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence against a person or group.
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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 the United States, hate speech is protected by the First Amendment. Courts extend this protection on the grounds that the First Amendment requires the government to strictly protect robust debate on matters of public concern even when such debate devolves into distasteful, offensive, or hateful speech that causes others to feel grief, anger, or fear. Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.
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.”
Nearly 90 years later, in 2017, Justice Samuel Alito expressed this concept in Matal v. Tam with a homage to Justice Holmes, writing: "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.' A free society must give much breathing space to hateful speech in order to avoid thought control and the censorship of unpopular views by the government."
Although a majority of Americans recognize that the First Amendment protects hate speech, a plurality — roughly 45% — think that it should not.
The Supreme Court has ruled that hate speech is protected by the First Amendment
While hate speech is protected by the First Amendment, there are limits to this protection. Hate speech can be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence against a person or group. Courts have found that expression generally cannot be punished based on its content or viewpoint. However, any expression that constitutes a true threat, incitement to imminent lawless action, or discriminatory harassment is not protected.
The protection of hate speech under the First Amendment is a contentious issue in the United States. While a majority of Americans recognize that the First Amendment protects hate speech, approximately 45% believe that it should not be protected. 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."
Frequently asked questions
Yes, hate speech is protected by the First Amendment. 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.
While "hate speech" is not a legal term in the United States, speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful.
Hate speech can only be criminalised when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.
