Is Hate Speech Protected by the First Amendment?

Yes, it is. However, it does not protect hate speech that would tend to immediately incite violence, which is often referred to as the “fighting words exception.”

Recent events have many people asking the question, “What exactly is protected by the First Amendment,” and it has become clear that many people do not know the limits of the First Amendment. For example:

  • The First Amendment only operates to shield a person from government action. If you are spouting racist nonsense and I tell you to stfu, I have not violated your First Amendment rights.
  • The First Amendment protects your right to speak your mind about your beliefs, including your belief in the superiority of the white race.
  • The First Amendment protects your right to gather peacefully, even if you are gathering to congratulate one another on your racist delusion that you are superior to other humans.
  • The First Amendment protects your right to carry a flag with a swastika on it. Although I would argue that waving a flag with a swastika is an action that would immediately incite many people to violence, the courts have disagreed with me.
  • The First Amendment protects your right to say “F*** you” to a police officer. Expect to be arrested anyway and to pay attorney fees to fight it in court.

Matal v. Tam – No Prohibition on Hateful Thoughts or Speech

In the most recent U.S. Supreme Court opinion on the issue, the Court held that the “disparagement clause,” which prohibits the registration of trademarks “which may disparage . . . persons, living or dead,” is unconstitutional and cannot be enforced.

In Tam, the plaintiff sought to register his band’s name “the Slants” with the federal trademark office, and was denied based on the disparagement clause (“slant” being a racially offensive term applied to Asian persons). The Court wrote that, although “[t]he Government has an interest in preventing speech expressing ideas that offend… that idea strikes at the heart of the First Amendment.”

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.” United States v. Schwimmer, 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).

So, Where Do We Draw the Line?

The U.S. and S.C. Supreme Courts have consistently drawn the line at “fighting words.” What are fighting words?

  • Conduct, the direct tendency of which was to provoke the person against whom it was directed to acts of violence. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  • Epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  • Words where there is a likelihood that the utterance will provoke an immediate violent response. Gooding v. Wilson, 405 U.S. 518 (1972).
  • Words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Houston v. Hill, 482 U.S. 451 (1987).

The conduct we have seen at recent white power rallies has often crossed that line. I would argue that flying the Nazi or certain other flags in front of a black person or many white persons is conduct that would tend to immediately incite a person to violence.

If you disagree with that, and I think the courts would, we have witnessed and will continue to witness other conduct that would tend to provoke the people against whom it is directed to violence. For example:

  • Calling a person a n***** (if they are black) or n***** lover (if they are white) as you yell at them for protesting you.
  • Yelling any epithets at counter protesters.
  • Inviting counter protesters to fight with you.
  • Pushing or throwing things at counter protesters.

We Need to Know Where the First Amendment Ends Because…

When the white supremacists protest in our state, the government needs to let them have their say. We need police on hand who are trained in the First Amendment and where the line is. Law enforcement needs to respect their First Amendment rights just as they need to respect my First Amendment rights. But when they cross the line and begin yelling racial epithets or taking other action that would tend to incite violence, law enforcement needs to step in, do their job, and arrest them.


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