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Video Lesson: What about hate speech?

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First Amendment for College Administrators

Lesson 2: Unprotected Speech

Video 2: “But what about hate speech?”

Video 2: “But what about hate speech?”
Video Transcript

A 2022 survey by FIREfound that a majority of Americans (57%) correctly recognize that the First Amendment protects “hate speech” from governmental regulation, punishment, or censorship — but 45% think that it should not be protected. 

The First Amendment makes no general exception for offensive, repugnant, or hateful expression. Most expression one would consider “hate speech” cannot lawfully be censored, punished, or unduly burdened by the government — including by public colleges and universities. 

The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish “hate speech.” Instead, the Court has come to identify within the First Amendment a broad guarantee of “freedom for the thought that we hate,” as Justice Oliver Wendell Holmes described the concept in a 1929 dissent. 

In Snyder v. Phelps, the United States Supreme Court protected in an 8-1 decision the speech of the Westboro Baptist Church — known for picketing military funerals with signs that read “God hates fags” and “Thank God for dead soldiers” — during a 2006 protest near the funeral of Lance Corporal Matthew A. Snyder, a Marine killed in Iraq.

In that 2011 ruling, Chief Justice John Roberts described our national commitment to protecting “hate speech” in order to preserve a robust democratic dialogue: 

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

In other words, the First Amendment recognizes that the government cannot regulate “hate speech” without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech — whether through debate, protest, questioning, laughter, silence, or simply walking away. 

Not all hateful speech is protected by the First Amendment, however, if it falls within the narrow categories of unprotected speech we heard about earlier in this lesson, such as:

  • Incitement to imminent lawless action;
  • True threats of bodily harm; or
  • Discriminatory harassment

If hateful speech falls outside these categories, the speech remains protected by the First Amendment in most contexts, with a handful of other narrow exceptions for public employees and institutions. 

Universities seeking to regulate “hate speech” in their policies should focus on prohibiting unprotected categories of expression, like harassment, true threats of violence, and incitement. Institutions must resist calls to place blanket bans on “hate speech” in official policy, as any attempts will inevitably fall short of legal standards and chill expression on controversial topics on campus.

As a free society, we must give significant breathing space to hateful, and even repugnant speech in order to avoid complete conformity of thought and to prevent the censorship of unpopular views by the government.

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