Hate Speech is Free Speech

Hate Speech is not differentiated from Free Speech in the US Constitution. 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. 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. Finally, "hostile environment harassment law" has sometimes been read as applying civil liability " or administrative discipline by universities " to allegedly bigoted speech in workplaces, universities, and places of public accommodation. There is a hot debate on whether those restrictions are indeed constitutional; they have generally been held unconstitutional when applied to universities, but decisions are mixed as to civil liability based on speech that creates hostile environments in workplaces (see the pages linked to at this site for more information on the subject). But even when those restrictions have been upheld, they have been justified precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at large, but only apply to particular contexts, such as workplaces. None of them represent a "hate speech" exception, nor have they been defined in terms of "hate speech." For this very reason, "hate speech" also doesn"t have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define "hate speech" " any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.