There is No “Hate Speech” Exception to the First Amendment


Anyone concerned with the future of free speech in the United States should be appalled by the recent events on the campus of U.C. Berkeley. A seemingly peaceful protest of controversial media personality Milo Yiannopoulos quickly turned violent as protesters broke barriers, threw rocks, and started fires in an attempt to prevent Yiannopoulos from speaking at a previously scheduled event. One 19-year-old protester was quoted as saying: “The whole reason we are here is for free speech. Milo’s hate speech is not allowed here. When it is hate speech, our free speech is to shut him down.”

This protester, while passionate and undoubtedly sincere, is woefully wrong in her assessment of how free speech functions in a free society. There is no exception for “hate speech” under the First Amendment.

This is not to say that the First Amendment’s protection of speech is absolute. Under the “clear and present danger” test, speech that threatens national security during wartime or other national security emergencies can be curtailed. Likewise, speech that consists of “fighting words” probable to provoke imminent violence, or speech constituting “obscenity,” are not protected by the First Amendment. The same goes for child pornography, the various forms of defamation, and speech subject to the proprietary rights of others. And especially applicable to the recent violence in Berkeley, the Supreme Court has found that speech that advocates for violence and is likely to produce it also does not qualify for the protection of the First Amendment. While exceptions exist, the general presumption under American law is towards the free expression of unfettered speech.

Those who sincerely believe that the First Amendment should disallow “hate speech” or other forms of speech they may find offensive have not thought through their assertions to their logical conclusions. Imagine how a “hate speech” exception to the First Amendment would operate. Who decides what constitutes “hate speech”? Does it depend on which party is in the majority at a given point? Legislators seem no better equipped than judges to decide the proper parameters for personal expression. Where do we draw the line? What is “hateful” to you, may not be hateful to me.  How do we impose sanctions on alleged violators? The idea of imprisoning our fellow citizens for offending us should shake civil libertarians, whether on the Left or the Right, to their very core.

And perhaps most dangerous of all: How do we account for the possibility of a chilling effect on future individual expression? It is on this point that many of the Supreme Court’s most impactful speech cases have turned. While courts have found reasonable time, place, and manner restrictions constitutional, restrictions based on specific content require the application of strict constitutional scrutiny. The great fear has always been that speech restrictions providing prior restraint will dissuade individuals from expressing themselves for fear of legal retribution. Given the problems identified above regarding the articulation of the standard for “hate speech,” imposing such an exception would be likely to produce the very chilling effect the Court has been so careful to avoid.

The point that “hate speech” exception advocates are missing is that the entire point of the speech protection provisions of the First Amendment was meant to protect offensive speech. The more offensive the speech, the greater protection that speech should receive. The First Amendment has no applicability to speech we find comfortable, polite, or agreeable. It would also miss the entire point of having a “Marketplace of Ideas.” As observed by John Stuart Mill in his seminal essay “On Liberty,”

“The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier   impression of truth, produced by its collision with error.”

To advocate for a “hate speech” exception to the First Amendment is not only to render the operation of free speech functionally moot, but it is to rob our fellow citizens of their ability to decide for themselves. We do not have the right to hurl bricks, start fires, or shout someone down just because we disagree with what they say. To do so is not only to injure the rights of the speaker but to injure anyone who might be positively (or negatively) affected by their speech. It is the choice of the audience to listen or turn away. There is no right under the First Amendment, or anywhere else, for us to make that decision for them.

So what recourse do we have to oppose speech that we find offensive? In the famous words of Justice Brandeis, “the remedy to be applied is more speech, not enforced silence.”


Timothy Snowball is a third year Juris Doctor candidate at The George Washington University Law School who is interested in constitutional law, history, and government. Tim holds degrees in political science from the University of California Berkeley and Grossmont College in San Diego.

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