January 6, 2016

On December 17, 2015 eighty-two Democratic members of Congress introduced a Resolution which, among other things, “denounces in the strongest terms the increase of hate speech, intimidation… and other hate crimes” against Muslims.  This language in House Resolution 569 perpetuates the false notion that “Hate Speech” is a category of speech which is not protected by the First Amendment to the U.S. Constitution.  The opposite is true.

“Hate Speech” is not a crime.  In fact, there is no concept of “Hate Speech” under First Amendment law.  There are only a few limited categories of speech which are not protected by the First Amendment, and “Hate Speech” is not one of them.

The Supreme Court has determined only a few “well defined and narrowly limited classes of speech” which are not protected under the First Amendment, including obscenity, defamation, fraud, incitement to violence, and speech which is integral to criminal conduct.  U.S. v Stevens (2010).  The Supreme Court has explicitly declined to carve out any new categories of unprotected speech.

In U.S. v. Stevens the Government tried to convince the Supreme Court to add a category of unprotected speech, and suggested the following test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”  The Supreme Court found the government’s suggestion startling and dangerous,” and the Court refused to carve out any novel exception to the First Amendment’s protection for a category of speech on the basis of an analysis of the value of the speech versus its costs to society.  “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

In Brown v. Entertainment Merchants Assn (2011) the Supreme Court again refused to expand the list of unprotected categories of speech: “new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”

The First Amendment protects speech that is unpopular, offensive or unsettling.  The Supreme Court has explained that the Right of Free Speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Speech is often provocative and challenging.  It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”Terminiello v. City of Chicago (1949).”If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.Texas v. Johnson (1989).

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