Hate Speech: Beyond Constitutional Protection

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. These include incitement to imminent lawless action, speech that threatens serious bodily harm, or speech that causes an immediate breach of the peace. If hate speech falls within one of these unprotected categories, then it is not protected by 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.

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Incitement to imminent lawless action

Hate speech is generally protected by the First Amendment, which upholds the right to freedom of speech. However, there are certain categories of speech that are not protected by the First Amendment, including incitement to imminent lawless action, true threats, and fighting words.

For example, in the case of *Beauharnais* vs. *Illinois*, the defendant was charged for distributing a leaflet that incited white people in Chicago to take action against the "encroachment, harassment and invasion" of their neighbourhoods by Black people. The Supreme Court ruled that the defendant's speech was not protected by the First Amendment because it constituted incitement to imminent lawless action, even if it did not directly incite violence.

It's important to note that the line between protected and unprotected speech can be blurry, and context plays a crucial role in determining whether hateful speech falls into one of these unprotected categories.

Speech that threatens serious bodily harm

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. Speech that threatens serious bodily harm falls under the unprotected category of 'true threats'. This means that if hate speech threatens serious bodily harm, it is not protected by the First Amendment.

In 1969, the Court distinguished true threats from political hyperbole in *Watts v. United States*. The Watts Court reviewed Robert Watts’s federal conviction. The relevant law criminalised any threat to kill or cause bodily harm to the American President. Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, 'If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.'

In another case, *Chaplinsky v. New Hampshire* (1942), the Court unanimously decided that the First Amendment doesn’t protect fighting words. The law defined fighting words as speech 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace'.

In the *Beauharnais* case, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine. Traditionally, if the speech did not fall within one of the categorical exceptions, it was protected speech. 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.

Speech that causes an immediate breach of the peace

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. Speech that causes an immediate breach of the peace, or 'fighting words', is one such category. In 1942, the Court unanimously decided in *Chaplinsky v. New Hampshire* that the First Amendment doesn't protect fighting words. The law defined fighting words as speech 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace'. The Court upheld the conviction and the statute, which it found to be sufficiently narrowly tailored.

In the *Beauharnais* case, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine. However, traditionally, if the speech did not fall within one of the categorical exceptions, it was protected speech.

Hate speech that causes tangible harm is generally punishable as a hate crime. In 1969, the Court distinguished true threats from political hyperbole in *Watts v. United States*. The Watts Court reviewed Robert Watts's federal conviction. The relevant law criminalised any threat to kill or cause bodily harm to the American President. Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, 'If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.'

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Libelous utterances

In the case of *Beauharnais v. Illinois*, the defendant was charged for distributing a leaflet that rallied white people in Chicago 'to halt the further encroachment, harassment and invasion of white people, their property, neighbourhoods and persons, by the Negro'. The Court ruled that since 'libelous utterances [are not] within the area of constitutionally protected speech', it did not matter that the speech did not incite any direct harm.

Hate speech is generally protected by the First Amendment, unless it falls within certain narrow categories of unprotected speech. These include incitement to imminent lawless action, speech that threatens serious bodily harm, or speech that causes an immediate breach of the peace. If the hateful speech falls within one of these unprotected categories, then it is not protected by the First Amendment.

In 1969, the Court distinguished true threats from political hyperbole in *Watts v. United States*. The Watts Court reviewed Robert Watts's federal conviction, which criminalised any threat to kill or cause bodily harm to the American President. Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, 'If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.'

While 'hate speech' is not a legal term in the United States, 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 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.

Speech that causes tangible harm

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. Hate speech that causes tangible harm is generally punishable as a hate crime.

In 1969, the Court distinguished true threats from political hyperbole in *Watts v. United States*. The Watts Court reviewed Robert Watts’s federal conviction. The relevant law criminalised any threat to kill or cause bodily harm to the American President. Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."

In 1942, the Court unanimously decided in *Chaplinsky v. New Hampshire* that the First Amendment doesn’t protect fighting words. The Chaplinsky Court reviewed a conviction under state law that criminalised the use of “fighting words”. The law defined fighting words as speech “likely to provoke the average person to retaliation, and thereby cause a breach of the peace”. The Court upheld the conviction and the statute, which it found to be sufficiently narrowly tailored.

In the *Beauharnais* case, the Supreme Court developed a free speech jurisprudence that loosened most aspects of the free speech doctrine. Traditionally, however, if the speech did not fall within one of the categorical exceptions, it was protected speech.

Hate speech that falls within certain, narrow categories of unprotected speech is not protected by the First Amendment. These include incitement to imminent lawless action (incitement); speech that threatens serious bodily harm (true threats); or speech that causes an immediate breach of the peace (fighting words).

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