Friday, May 15, 2015

No, there’s no “hate speech” exception to the First Amendment

By UCLA law professor Eugene Volokh

I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. (And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of.)

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a “group libel” law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true, and were said with “good motives” and for “justifiable ends.” But this too was treated by the Court as just a special case of a broader First Amendment exception — the one for libel generally. And  Beauharnais is widely understood to no longer be good law, given the Court’s restrictions on the libel exception.

More here


Anonymous said...

Free speech means that the government cannot punish people for what they say or write; it does not protect the speaker or writer from other people.
For example, it would not be wise to walk through South Boston wearing an orange suit on St. Patrick's Day.

Anonymous said...


So you believe that a person can assault or physically prevent a person from speaking and that physical retaliation is an appropriate response as long as the government is not involved in the speech itself?

Perhaps it would be wise to remember that according to this country's foundational documents, governments are established by the people to protect the rights of the people - rights such as freedom of speech.

The government has a obligation and a duty to protect unpopular speech. If it does not, then it is actually favoring certain speech over another.

The answer to speech that a person doesn't like or that "offends" is always more speech. We should never allow those who wish to silence others to succeed in their goals of silence.

Bird of Paradise said...

The ACLU the Athiests.Communists. & Lawyers. Underground

Anonymous said...

3:05 AM Your head is full of nonsense. If you insult me to my face, I will rearrange your nose !

Anonymous said...


Ah yes, the so called "fighting words" exception that doesn't truly exist.

In the example that started this, the poster said it would not be wise to walk down the streets of South Boston wearing orange on St. Patrick's Day.

Such an action would not be within the "fighting words" exception, but perhaps you didn't realize that. Perhaps you aren't aware that the fighting words doctrine doesn't just take your word that you were "insulted" and therefore had the right to hit someone.

It is people like you and actions that you advocate that show the need for the First Amendment and the protection of speech. Otherwise we would be running around trying not to offend those who are too childish to control their emotions when someone disagrees with their underdeveloped minds.

Alpha Skua said...

ACLU Go Away

Anonymous said...

12:48 AM
The First Amendment is for the purpose of protecting people from the government. In Colonial times, it was an offense punishable by death to criticize the King and by extension the King's representatives.

Anonymous said...


You are partially right. The First Amendment also exists to allow the exchange of ideas within the public square.

The government exists to protect the rights of the people, and one of those rights is speech.

That is why courts have upheld anit-SLAPP laws. They protect the right for people to express their opinions.

Clearly there are time, place and manner restrictions, but to say that one voice can use violence to silence another person is not accurate.