You Don’t Say: American First Amendment Protection of Hate Speech

Photo by Aaron Burden on Unsplash

Logan Kline, Associate Member, University of Cincinnati Law Review

Part One of a Two-part series comparing the American and Canadian systems of regulating hate speech.

I. Introduction

Despite being heralded as a pillar of the American conception of freedom, the First Amendment is an outlier when compared to the jurisprudence of the majority of other nations around the world.[1] Just to the north, the Canadian legal system takes a far more interventionist approach to the regulation of speech, with laws that prohibit various forms of expression such as hate speech.[2] Even the United States does not recognize an absolute right to unfettered speech, but the American threshold for acceptable speech is much more lenient than most others, including our neighbors to the north.[3]

The regulation of speech, specifically hate speech, is a hotly contested and often-debated subject. In light of the ambient public discourse, clarification of the scope of this article is crucial. First and foremost, hate speech and its progeny are abhorrent and an affront to civility. This is not in any capacity a defense of hate; it is a study of two contrasting approaches to fighting it, paired with an analysis of the effectiveness of each. By the end of this two-part article series, the goal is for each side to have been examined thoroughly enough to provide insight into the thought process behind both the American and the Canadian approach to the regulation of hate speech. Ultimately, the argument is not for the Canadian or American model, but instead it is against the common modern sentiment that positions one as a straw man to be effortlessly disposed of. Both sides have valid perspectives, so the goal of this series is to steel man each argument against the other, and argue that each is valid within its own legal system and premise of speech.

II. What Is Hate Speech?

Before diving into an analysis of the regulation of hate speech across Northern America, it is important to define the term. However, hate speech is not defined under U.S. law as it is not an outlawed class of language. Thus, it is not formally differentiated from any other protected speech in the United States. The United Nations in their “Strategy and Plan of Action on Hate Speech” memorandum defined hate speech as “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”[4]

III. The United States’ Approach

In the United States, freedom of speech is one of the core tenets set forth by the nation’s founders.[5] The First Amendment reads: “Congress shall make no law… abridging the freedom of speech…”[6] However, the freedom of speech is not unlimited.[7] American law has held since the early 1900s that speech that actively incites violence or otherwise creates danger is not covered by the protection of the First Amendment.[8]

For example, in Schenck v. U.S., Justice Holmes asserted that Congress has an interest in preventing words “of such a nature as to create a clear and present danger that they will bring about the substantive evils.”[9]  Justice Holmes further substantiated this concept by providing a now famous example: even under the most stringent of speech protections, a person cannot falsely yell “fire” in a crowded theater.[10] The Schenck decision provided this general test to be applied to restrictions on speech, known as the “clear and present danger” test.[11] The United States Supreme Court has since refined and adjusted this test through numerous cases, but the general concept that speech inciting violence and danger is unprotected remains in American jurisprudence today.[12]

Further, the United States Supreme Court has held that openly offensive speech and hate speech do not inherently cross into inciting violence or danger, and thus are protected under the United States Constitution.[13] In Cohen v. California, Justice Harlan wrote that offensive speech must be protected because “one man’s vulgarity is another’s lyric.”[14] On the topic of hate speech specifically, the Supreme Court has decided a variety of cases outlining exactly what is, and what is not, protected.[15]

One preeminent example of the Supreme Court’s position on hate speech manifests in R.A.V. v. City of St. Paul, Minnesota.[16] In R.A.V., the defendants burned a cross on the property of an African American resident, and the city prosecuted under a city ordinance outlawing hate crimes.[17] Justice Scalia delivered the opinion for the Court, striking down the city’s ordinance and ruling it unconstitutional on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”[18] The Court went on to hold that the government cannot punish speech and expressive conduct only because it disapproves of the ideas expressed.[19] Justice Scalia noted the potential negative effect such a statute could have on public discourse in writing that: “[The City of] St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”[20] This holding had far-reaching implications, striking down not only this hate speech prohibition, but also hate speech legislation across the nation.[21]

After the R.A.V. decision, the nation was left wondering whether a state can outlaw cross burning specifically. In answer to this, Justice O’Connor delivered the opinion in Virginia v. Black, holding that cross burning could be banned if it was carried out with the “intent to intimidate.”[22] However, Justice Thomas in his dissent aptly noted that burning a cross is always an act meant to intimidate.[23] In Virginia v. Black, the Court considered the intimidation and threat of violence that comes with the burning of a cross.[24] However, some scholars retort that all hate speech comes with some threat of aggression or violence by the nature of the linguistic charge of the words used.[25]

In total, the American approach generally protects hate speech, so long as the speech does not fail one of the other tests set forth by the U.S. Supreme Court, such as the clear and present danger test in Schenck v. U.S. While hate speech may be limited if it presents danger or otherwise incites violence, the general premise is that pure hate speech is protected expression under the First Amendment of the U.S. Constitution.

IV. Strengths and Weaknesses of the United States’ Approach

The American approach relies on the concept of the Marketplace of Ideas, which derives from Justice Holmes’ language in the dissent of Abrams v. United States.[26]The Marketplace of Ideas theory holds that the best ideas will win out through competition if they are just allowed to enter the public discourse and relies on the premise that, given an open forum for discourse, the strongest and best ideas will prevail.[27] Reason appears to be the currency of this intellectual marketplace. In other words, ideas supported by more sound reason are the strongest that survive the marketplace.

Contemporary philosopher and cognitive neuroscientist Dr. Sam Harris conveyed the importance of open discourse and the role reason plays as follows:

I think the need is to be able to talk about the most important questions in human life without losing our connection to one another…We need to able to hear people out, we need to be able to reason about everything, because reasoning is the only thing that scales. It’s the only way of talking about a problem which stands the chance of being universalizable.[28]

In the context of the Marketplace of Ideas model, the result is well-reasoned arguments rising to the peak of the “market” through virtue of being the most logically sound.

Proponents of the American approach to hate speech would therefore argue that the government should not decide what does and does not qualify as acceptable discourse.[29] Instead, the morally-bankrupt ideas that truly are hate speech will be filtered out and exposed as weak in light of reason.[30] In this way, the dangerous and hateful ideas are dismantled out in the open for the world to see their unreasonable nature.[31] Others who may have similar thoughts then see their internal biases dismantled in a public way and can come to the conclusion that they are wrong. Otherwise, hateful people may resort to whispering amongst themselves in the shadows of society and spreading insidious ideologies like an undiagnosed disease.[32] If these ideas are allowed to spread beneath the surface in private forums, they can fester and grow to the point where they can no longer be easily cured by reason.[33] By the time the public realizes the societal disease is present, it has already cemented itself as a hate group.

The American approach also does not rely on the government to proscribe what is and is not hate speech. The danger of allowing the government to censor what it classifies as hate speech is that the term is relatively amorphous.[34] Lee Rowland, Senior Staff Attorney for the American Civil Liberties Union Speech, Privacy, and Technology Project, noted the danger of allowing the government to take on the role of censor as follows:

Your idea of “hate speech” may not be the government’s idea of “hate speech.” I know mine isn’t. But even if you agree with [the current president] — are you sure our next president will agree with your worldview? You shouldn’t be. That’s why I’m a true believer in the First Amendment. I am an anti-authoritarian. And I know that the government has historically wielded its raw power to silence those who speak truth to power. [35]

Therefore, rather than have government draw lines to govern the actions of individuals in their everyday conversations, the local community and members of the conversation themselves should act as their own censor. For example, if someone says something hateful, the first step should be to be for those involved to diffuse the situation on an interpersonal level.[36]

A conservative perspective on the American approach would argue that it is not the role of the federal government to step into the everyday lives of its citizens and limit what they can and cannot say. Instead, communities need to foster a sense of accountability in rejecting bias and hate wherever it manifests. There is little doubt that hate speech exists and should be stopped, but the issue at hand is who will define it, who will draw the lines of acceptability, and who will enforce it. Proponents of the American model reject the idea that legislators in Washington D.C. or anywhere should be able to place a linguistic fetter on what the entire nation can and cannot say.[37] Instead, personal accountability and other mechanisms of discourse, including the Marketplace of Ideas, should govern social acceptability. Finally, if the standard of whether something qualifies as hate speech or not is whether it offends, then many of the most forward-thinking, revolutionary ideas would be quelled.[38] Open discourse is necessary to drive societal collective knowledge forward, and before this can happen, hateful ideas need to be actively defeated in an open forum so that any who may silently hold discriminatory or insidious beliefs can learn and grow beyond them.[39]

Critics of the Marketplace of Ideas note that allowing hate speech to enter the public discourse results in significant harm done before logic can intervene.[40] This hateful language can be so demeaning that it does not engage with the public conversation on the level of reason, but instead subverts it by intimidating targets and silencing discussion. The result is not the defeat of hate speech through reason, but the stymying of rational conversation through intimidation and bigotry. To extrapolate the metaphor of a marketplace, some may argue that those who bring hate speech to the marketplace are bringing a weapon into the negotiation.

As for the argument that protecting hate speech allows it to come to the surface and be eliminated by better arguments, some critics assert that in the modern age of social media, public hate speech can actually attract others harboring internal resentment and embolden them to be more open in their bigotry.[41] Rather than serving as water to douse the flame, the public nature of the discussion stokes it into an inferno.[42] Writing for NPR, David Shih noted that the Marketplace of Ideas relies on several flawed assumptions.[43] According to Shih, one such falsehood, which he referred to as the “empathetic fallacy,” is that people actually care as a society to fight injustice and recognize hateful language when it manifests.[44] Further, Shih argued that racists and other peddlers of hate adapt and use code words as “dog whistles” to signal racist messaging and “game the system.”[45]

One fundamental disagreement in premise that could explain the competing perspectives on the Marketplace of Ideas model is whether speech itself, without incitement or threat of physical aggression, can constitute violence. If it cannot, then it logically follows that hate speech, no matter how abhorrent, should be weathered in order to keep the public discourse as unfettered as possible. However, if speech itself can be violence, then the logical conclusion would be to prevent the violence by stymying the hate speech. Further, if speech itself is violence and places targets in danger, the Supreme Court may need to reevaluate its test to encompass this form of harm.

In an article for The Washington Post entitled Why America Needs a Hate Speech Law, Richard Stengel wrote on the various criticisms of the American system and Marketplace of Ideas model.[46] Stengel argued that the Marketplace of Ideas is deeply flawed in that “no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.”[47] He went on to write that this process would need to be “magical” in order to actually work properly.[48] Stengel argued that even if hate speech itself does not “pull the trigger,” it creates an environment that makes violent acts such as domestic terrorism more likely.[49] Further, he argued that hate speech enables discrimination and diminishes tolerance.[50]

The difference in Dr. Sam Harris’ perspective and that of Richard Stengel appears to spring from a fundamental difference in opinion on the capabilities of the American public to logically dismantle hate. Dr. Harris asserted that, when reason is juxtaposed with irrational thought, the reason will prevail.[51] However, Stengel wrote that not only does this not actually work in practice, but it also assumes a sterile, academic environment for discourse that does not exist in the social media era.[52] To support this, Stengel cited several studies in his article displaying that the vast majority of middle and high school students cannot tell the difference between real and fake news online and cannot even differentiate news from labeled ads.[53] Based on this research, Stengel argued that modern online discourse is not transparent and streamlined enough for truth to win out over falsehood or hate.[54]

V. Conclusion

The effectiveness of the American model has come under intense scrutiny recently with the number of hate crimes in the United States steadily rising over the past several years.[55] According to James Nolan, former F.B.I. crime analyst who helped oversee the National Hate Crime Data Collection Program from 1995-2000, “The trends show more violence, more interpersonal violence, and I think that’s probably reliable.”[56] That said, while critics may argue that this uptick necessitates change in our legal system, a solution is possible within the current framework if the American public embraces a cultural move toward rejecting hate at the personal level. For the American Marketplace of Ideas model of hate speech regulation to work, each individual must do their part in using reason to dismantle the arguments of those who wish to promulgate hate and bigotry. The model assumes that we will engage in our civic responsibility of cultivating the best possible community for rational thought to prevail over irrational prejudice. If Americans fail to oppose oppression wherever it arises and stay silent in the face of hate, then the American model fails. Therefore, the American public must take more personal accountability in the fight against hate if the American model of governmental hate speech protection is to succeed in the future.

Despite strong arguments for a more regulatory approach, the American model has proven effective throughout the nation’s history in both limiting hate speech and fostering an environment conducive to the rise of thought leaders. Ultimately, the measure upon which the success of the United States’ approach balances is whether the positive externalities of relatively unfettered speech outweigh the harm done by the hate speech that is allowed to remain. Even with merit on both sides of the debate, the United States’ culture of freedom and personal responsibility for maintaining that freedom tips the scale in favor of a libertarian approach to regulation of hate speech. That said, the only truly wrong answer to this debate is one that ignores the nuance and strength of the opposition. Stopping hate speech is a paramount issue that cannot afford to be looked at without considering all good solutions. 


[1] Melissa Block, Comparing Hate Speech Laws In The U.S. And Abroad, NPR, (last visited Nov. 7, 2020), https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Speech.

[2] Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Can.).

[3] That said, the United States is certainly not alone in its regulatory standards for hate speech. For instance, international law does not outlaw hate speech and mirrors the law of the United States very closely in applying an incitement standard. António Guterres, United Nations Strategy and Plan of Action on Hate Speech (U.N. Docs.).

[4] Id.

[5] U.S. Const. amend. I.

[6] Id.

[7] Schenck v. U.S., 249 U.S. 47 (1919).

[8] Id.

[9] Id. at 52.

[10] Id.

[11] Id.

[12] See Dennis v. United States, 341 U.S. 494 (U.S. 1951) (In order for advocacy of violence to be unprotected, it must be connected with an act, and not just an abstraction of violence.); Yates v. U. S., 354 U.S. 298 (U.S. 1957) (Advocacy for an idea only cannot be suppressed under the First Amendment. The relevant issue is whether there is advocacy for action.).

[13] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[14] Cohen v. California, 403 U.S. 15, 25 (1971).

[15] The cases include: Snyder v. Phelps, 562 U.S. 443 (2011); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992); Virginia v. Black, 538 U.S. 343 (2003); and Wisconsin v. Mitchell, 508 U.S. 476 (1993).

[16] R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992).

[17] Id. at 377.

[18] Id. at 381.

[19] Id. at 391.

[20] Id. at 392. (The Marquis of Queensberry rules are a commonly accepted code of rules governing boxing. Thus, Justice Scalia is commenting on the issue of regulating one side of an argument while allowing the opposition to engage unrestrained.)

[21] Id.

[22] Virginia v. Black, 538 U.S. 343 (2003).

[23] Virginia v. Black, 538 U.S. 343 (2003) (THOMAS, J. dissenting).

[24] Virginia, supra note 22.

[25] Lee Rowland, Free Speech Can Be Messy, But We Need It, ACLU Speech, Privacy, and Technology Project (March 9, 2018) https://www.aclu.org/blog/free-speech/free-speech-can-be-messy-we-need-it.

[26] Abrams v. United States, 250 US 616 (1919) (HOLMES, J. dissenting). The original concept of the Marketplace of Ideas can be traced back further than Justice Holmes to the seventeenth-century thinker John Milton.

[27] David Schultz, Marketplace of Ideas, The First Amendment Encyclopedia (June, 2017) https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas.

[28] Interview by Chris Anderson with Dr. Sam Harris, The TED Interviews, (Oct. 30, 2018) https://www.ted.com/talks/the_ted_interview_sam_harris_on_using_reason_to_build_our_morality/transcript?language=en#:~:text=We%20need%20to%20able%20to,the%20chance%20of%20being%20universalizable; (For reference, “universalizability” mentioned here by Dr. Sam Harris refers to the concept expounded upon by eighteenth-century German philosopher Immanuel Kant.)

[29] Rowland, supra note 25.

[30] Interview with John Anderson and Dr. Jordan Peterson, In Conversation, (April 3, 2018) https://www.youtube.com/watch?v=U4NijLf3M-A.

[31] Id.

[32] Id.

[33] Id.

[34] Rowland, supra note 25.

[35] Id.

[36] Peterson, supra note 30.

[37] Id.

[38] Id.

[39] Id.

[40] David Shih, Hate Speech and the Misnomer of ‘The Marketplace Of Ideas, NPR (May 3, 2017) https://www.npr.org/sections/codeswitch/2017/05/03/483264173/hate-speech-and-the-misnomer-of-the-marketplace-of-ideas.

[41] Richard Stengel, Why America Needs a Hate Speech Law, The Washington Post (Oct. 29, 2019) https://www.washingtonpost.com/opinions/2019/10/29/why-america-needs-hate-speech-law/.

[42] Shih, supra note 40.

[43] Id.

[44] Id.

[45] Id.

[46] Stengel, supra note 41.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Harris, supra note 28.

[52] Stengel, supra note 41.

[53] Id. (This statistic is cited to assert that the internet is not a sufficiently transparent or straight-forward forum for truth to rise to the surface. The internet tends to obscure messages as simple as ads, leading young adults to believe they are news stories, so it cannot be relied upon to self-regulate hate speech.)

[54] Id.

[55] Adeel Hassan, Hate-Crime Violence Hits 16-Year High, F.B.I. Reports, N.Y. Times, (Nov. 12, 2019) https://www.nytimes.com/2019/11/12/us/hate-crimes-fbi-report.html.

[56] Id.

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