The 3 Rules of Hate Speech and the First Amendment

Here are three rules you should know about "Hate Speech" and the First Amendment:

Rule 1. The First Amendment protects all ideas, loving, hateful, or in between.

In the United States, "hate speech" is just a political label, like "un-American speech" or "rude speech." Some people use the phrase broadly, some more narrowly—but there's no legal definition, because there is no "hate speech" exception to the First Amendment..

As the Supreme Court held in 1974, "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." [quoting Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).]

Or, in 2017:

"…the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" [quoting Matal v. Tam, 137 S. Ct. 1744 (2017).]

That's from Matal v. Tam, in which the government denied a trademark to an Asian-American band, because the band's name—The Slants— was seen by some as a racial slur. The government wasn't even trying to ban the name; it was just denying a generally available benefit—trademark registration—to people who used the name.

But even that, the Court concluded, was unconstitutional viewpoint discrimination, and thus violated the First Amendment.

Rule 2. Some speech is not protected by the First Amendment, but that's true regardless of whether it's bigoted or hateful

For instance, threats of violence are constitutionally unprotected. That includes all threats–racist threats, threats to police officers, threats to business owners, threats to the President, anyone.

Likewise, intentionally inciting immediate violence is sometimes punishable. Classic example: Giving a speech to a mob outside a building, urging them to burn it down. But again, it doesn't matter if the speech is outside a synagogue, a police station, or a recycling center.

Personal insults said to someone's face might also be punishable, as so-called "fighting words."

Again, though, that's true regardless of whether the insults stem from personal hostility or group hatred related to race, religion, and the like.

Indeed, in 1992, the Supreme Court struck down an ordinance that specially targeted bigoted fighting words. Such an ordinance, the Court said, unconstitutionally discriminates against particular viewpoints.

Rule 3. Hate crime laws are constitutional, so long as they punish violence or vandalism, not speech

The classic example is Wisconsin v. Mitchell, the 1993 case in which the Supreme Court unanimously upheld hate crimes laws. Todd Mitchell, a young black man, urged some friends to beat up a white boy because the boy was white.

Wisconsin law made the beating into a more serious crime because the boy was targeted based on his race. The Court said this is fine, because "a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment."

And while the law increased the punishment because of the defendant's intent, the law often punishes people more because of why they did what they did.

Killing someone for money will get you a harsher punishment than killing them out of momentary anger. Likewise, firing an employee because of his race will get you a civil lawsuit; firing an employee for most other reasons won't.

None of this covers the mere expression of hateful ideas, or the use of words that some see as hateful. Those are indeed generally protected by the First Amendment.

But why? The Justices generally agree that racist ideas, for instances, are wrong and dangerous. Why would the Justices say hate speech is constitutionally protected?

Because they don't trust government officials to decide which ideas are wrong and dangerous.

They worry that if government officials had the power to ban evil ideas, that power would quickly stretch to punishing a wide range of debate and dissent. And they see the First Amendment as requiring that distrust.

In the words of Justice Black, echoed by the Supreme Court in 1972, "The freedoms…guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." [quoting Healy v. James, 408 U.S. 169 (1972).]

So to sum up:

1: There is no "hate speech" exception to the First Amendment

2: Threats of violence and incitement to violence are not protected, but that has nothing to do with "hateful" content.

3: and Hate crime laws can punish violence or vandalism based on the offender targeting particular groups, but that doesn't allow punishment of supposed "hate speech."

Written by Eugene Volokh, a First Amendment law professor at UCLA.
Produced and edited by Austin Bragg, who is not.

This is the second episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of the Volokh Conspiracy, which is hosted at Reason.com.

This is not legal advice.
If this were legal advice, it would be followed by a bill.
Please use responsibly.

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Music: "Lobby Time" by Kevin MacLeod, Incompetech.com
Music: "You Make Me Alive" by The Slants
Wookie Icon by Jory Raphael, symbolicons.com

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