Debate Desk
Is Hate Speech Not Protected by the First Amendment in America?
The Supreme Court holds that speech cannot be banned for being offensive; the line is incitement and true threats, and it protects everyone.
The claim
Many say that words can wound and incite, that other democracies ban hate speech without ending free expression, and that America should do the same to protect minorities and keep public discourse civil.
The answer in three points
- "Hate speech" is not a legal category in American law. The Supreme Court has repeatedly held that expression cannot be punished because it is offensive. In Matal v. Tam (2017), Justice 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 the free speech tradition is that it protects the thought we hate.
- The law already covers what matters. Incitement to imminent lawless action, true threats, harassment, defamation and fighting words are not protected. Brandenburg v. Ohio (1969) drew that line in a case that protected a Klansman's speech and has since protected the speech of civil rights activists and others.
- Someone must decide what counts as hate. Whoever holds that power can turn it on dissenters. Laws abroad have been used against religious preachers, comedians and critics of government. A rule that sounds fair when your side writes it can be used against you when the other side wins.
The numbers
- The Supreme Court decided Brandenburg v. Ohio in 1969, holding that advocacy can be punished only when it is directed to inciting imminent lawless action and is likely to do so.
- The Supreme Court held in Snyder v. Phelps (2011), by a vote of 8 to 1, that a church's offensive funeral protests were protected speech on matters of public concern.
- The Supreme Court decided Matal v. Tam in 2017 without a dissenting vote on the principle that the government may not discriminate against speech because it offends.
What they will say next
"Europe bans it and remains free." Several European countries do, and they prosecute people for speech that Americans would find unremarkable. Free speech is wider here, and that has been good for dissent and reform.
"Words lead to violence." Sometimes, and the law punishes direct incitement and threats. A theory that allows the government to ban speech that might lead to harm somewhere, at some time, has no limit.
"Minorities need protection." They do, and the law punishes threats, harassment and discrimination. The civil rights movement itself depended on free speech to persuade a country, and its opponents tried to silence it.
"Private companies can act." They can, and the larger question is what government may do. Counter-speech, boycotts and persuasion are the free society's tools.
The cure for bad speech is more speech, and the cure for hate is persuasion and good example.
"Online abuse silences minorities." It can, and harassment and threats are punishable. The response should target those acts, not the broad category of offensive opinions.