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In the United States, hate speech is protected by the First Amendment. 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. The justices have 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 on the basis of the speaker's viewpoint. However, a plurality of Americans (around 45%) think that hate speech should not be protected.
| Characteristics | Values |
|---|---|
| Protected by the Constitution | Yes |
| Legal term | No |
| Protected by the First Amendment | Yes |
| Can be punished based on content or viewpoint | No |
| Can be criminalised when it directly incites imminent criminal activity | Yes |
| Can be criminalised when it consists of specific threats of violence | Yes |
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What You'll Learn
- Hate speech is protected by the First Amendment
- Hate speech is not a legal term in the US
- Hate speech can be criminalised if it incites imminent criminal activity
- Hate speech is protected by the Constitution due to the right to freedom of speech
- The government may not discriminate against speech based on the speaker's viewpoint
Hate speech is protected by the First Amendment
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 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."
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.
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Hate speech is not a legal term in the US
The US 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 the 2017 case of *Matal v. Tam*, 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 US government may not discriminate against speech on the basis of the speaker's viewpoint.
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.
While hate speech is protected by the Constitution, hate crimes are not. Hate crimes are overt acts that can include acts of violence against persons or property, violation or deprivation of civil rights, certain "true threats," or acts of intimidation, or conspiracy to commit these crimes.
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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 US Constitution. However, this protection is not absolute. While "hate speech" is not a legal term in the US, the Supreme Court has ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. This means that hate speech can be criminalised if it incites imminent criminal activity or consists of specific threats of violence targeted against a person or group. For example, in the Supreme Court case *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. However, they also stated that the US government may not discriminate against speech based on the speaker's viewpoint.
The courts in the United States have found that expression generally cannot be punished based on its content or viewpoint. This means that hate speech, alone, receives constitutional protection. However, any expression that constitutes a true threat, incitement to imminent lawless action, or discriminatory harassment can be criminalised.
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. This protection of free thought and expression is seen as essential to avoiding 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.
Despite this strong protection of free speech, it is important to note that a plurality of Americans (roughly 45%) believe that hate speech should not be protected by the First Amendment.
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Hate speech is protected by the Constitution due to the right to freedom of speech
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.” This concept was echoed by Justice Samuel Alito in Matal v. Tam, who wrote: "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."
While hate speech is protected by the Constitution, it is important to note that any expression that constitutes a true threat, incitement to imminent lawless action, or discriminatory harassment is not protected.
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The government may not discriminate against speech based on the speaker's viewpoint
Hate speech in the United States is protected by the First Amendment, despite the fact that a plurality of Americans (around 45%) think it shouldn't be. The U.S. Supreme Court has repeatedly ruled that hate speech 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 U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
The Supreme Court's decision in Snyder v. Phelps provides an example of this legal reasoning. 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.
In 2017, Justice Samuel Alito expressed a similar 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.”
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Frequently asked questions
Yes, hate speech is protected by the First Amendment.
The First Amendment requires the government to protect robust debate on matters of public concern, even when the debate becomes offensive or hateful.
Yes, hate speech can be criminalised when it directly incites imminent criminal activity or consists of specific threats of violence against a person or group.
A majority of Americans recognise that the First Amendment protects hate speech, but around 45% think it should not.
