Is Hate Speech Protected by the First Amendment?

Short answer: Yes.

Long answer: “Hate speech” isn’t a legally meaningful category of speech. Although there are exceptions to the First Amendment right to free speech, “hate speech” is not among them.

Howard Dean obviously doesn’t understand this:

Twitter is blowing up with lawyers and legally literate laypeople expressing their surprise and dismay that a former governor and presidential candidate could be so ignorant of our country’s law.

So yeah, hate speech is protected by the Constitution, and no one who knows what they’re talking about disputes this.

Besides the constitutional question, “hate speech” is such an ill-defined phrase that it doesn’t meaningfully describe any kind of speech. For example, Ball State University’s “Learning from a Legacy of Hate” project lists the following as forms of hate speech:

  • Racist cartoons
  • Anti-Semitic symbols spray painted on the side of a synagogue
  • Ethnic slurs or other derogatory labels for a group
  • Burning a cross in the yard of an ethnic minority
  • Politically incorrect jokes that target the disabled or the aged
  • Sexist statements
  • Anti-gay protest signs and chants

Obviously, this list is insane. Some would say it’s sexist to say that mothers shouldn’t have careers. Would it be hate speech for me to say that? Is it really hate speech to make fun of old people? These categories are so broad that, were we to adopt them, a huge amount of mostly unoffensive speech could be defined as hate speech and suppressed. (Note: The Supreme Court also ruled that cross-burning is a form of protected speech in R.A.V. v. City of St. Paul.)

Of course, there’s good reason to think that that’s the point. The people crying “hate speech” are trying to create a huge exception to our laws protecting speech, and then exploit that exception to suppress those whose viewpoints differ from their own. It just so happens that the spirit of our age is the spirit of radical egalitarianism, making it easy to sell the eradication of all things that we associate with the inequality of ages past.

Posted in Law

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