
The argument against hate speech has always been firm — Hate speech is an abuse of free speech, and thus is not covered by the 1st Amendment.
Much of the mentality of such a statement revolves around the idea that such abusive rhetoric has long been used by the powerful to suppress and demean “historically marginalized peoples”. Many, if not most have this view about the relationship between free speech and hate speech. With the abundance of articles, papers and even books written supporting this opinion, you would think it was true!
However, at the end of the day, the documents and opinions that are ultimately authoritative and final are the Constitution, its amendments and the judgement of the United States Supreme Court.
The 1st Amendment, in its totality reads:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In June 2017, the Supreme Court in Matal v. Tam*, (the “Slants” case) stated:
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful…”
However, after defining what hate speech is they went on to say:
“but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”
The truth is, hate speech is protected by the First Amendment. The purpose of the First Amendment isn’t to protect popular speech, polite speech, or politically correct speech…that kind of speech needs no protection. This means that everyone is free to express an opinion on a public matter — even if the entire public disagrees with that opinion.
Yes, you say, but this can only go so far! How far is that? I believe the most shockingly extreme example of 1st Amendment protection involves the case of Snyder v. Phelps — the case involving the infamous founder of the Westboro Church, and the likely author of his church’s vicious condemnation of both the United States and homosexuality.
After years of saying “God Hates Fags” they decided to protest military funerals with “God Hates the USA” and “Thank God for Dead Soldiers” Imagine the horror of hearing and seeing these assholes at your son’s funeral? One would think that THIS kind of speech worth banning or at least restricting.
Yet the Supreme Court ruled unanimously that the First Amendment protects this speech. Most of the signs addressed issues regarding the moral conduct of the U.S., the fate of the U.S., and homosexuality in the military. As such, the “overall thrust and dominant theme” of the speech related to broader public issues impacting American society as a whole. Furthermore, the church was picketing on public land adjacent to a public street. And finally, there was no pre-existing relationship between the Westboro Church and Snyder that might suggest that the speech on public matters was intended to mask an attack on an individual in a private matter. Therefore, the Court held that the Phelps family and their followers were “speaking” on matters of public concern on public property and thus, were entitled to First Amendment protection.
“The principle that debate on public issues should be uninhibited, robust, and wide-open” allows for free speech on public issues — even when found offensive by some.”
With the Phelps decision, it’s clear that the Supreme Court takes the position that all public speech is created equal, and defining any speech as “hate speech” is a form of censorship…content discrimination, as it’s based on the judgement of the listener.
According to Justice Kennedy,
“A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”
The ruling by the Court also apparently left open yet another avenue for future lawsuits by stressing the fact that so-called “hate speech” is also protected from more crafty acts of discrimination, such as denial of tax exemption for organizations, university bans on certain speakers, employment termination of those who are found to use “hate speech” outside their workplace, “no-platforming” of websites, etc…
Now, is this writer advocating the return to the days when crude jokes were made and insults were commonly aimed at certain groups? Far be the thought. Do I even faintly agree with Westboro Church’s message? Hell no! It is detestable, despicable, demeaning and in no way expresses the Christian message of God’s love towards humanity. It is blasphemous to hijack scripture and use it the way terrorists use Islam to justify their acts. It won’t surprise me that they find themselves in the place they say others will be.
No, instead I hope by showing how far the Supreme Court is willing to go to allow the most egregious and offensive speech, that the overly sensitive and the “easily offended by a word” liberals, progressives, so called “social justice warriors” take a chill pill. Listen without trying to use the speaker's words to shut down speech they hate.
Finally, there is something that I feel has been completely overlooked in this entire debate. Hate is a feeling. Most illegal things are crimes because of someone’s actions. In George Orwell’s 1984, a thought-crime wasn’t doing the crime, it was having an illegal thought about a crime.
So today we have gone a step further by creating hate crimes — having an illegal feeling while doing a crime. How about if I just don’t like what you’re saying? Is that a misdemeanor? What emotion shall we make illegal next? Jealously? Fear? I’d like to make expressing fear illegal. A fear-crime would be a crime of cowardice, such as expressing “how unsafe I feel”, “I’m triggered” “I’m the victim” etc. Can you imagine how liberals would feel if their expressions of injustice were labeled fear crimes?
In conclusion, there is no “right not to hear” speech that offends. No matter how much you hate to hear it, others freedom of speech doesn’t end when your hurt feelings and fears begin.
Hate speech is still free speech.
