Is Hate Speech Protected Under The First Amendment?


A speech threatening to offend or insult a group of people, which are based on color, race, religion, sexual orientation, national origin, disability, and other traits is called hate speech. It is a persuasive problem that suffered particularly by ethnic and social minorities. It undermines self-esteem, causes isolation and violence. Words can be destructive and cause damages heightened by contextual factors and emotions. This kind of speech has led to the growth of hate crimes. It reinforces and maintains social inequality in workplaces, homes, and in the society in general. The hate messages are factual and immediate for the victims. That is why professor Patricia Williams called them “spirit murder”. The First Amendment of the United States Constitution prohibits making any laws impeding the free exercise as well as religious establishment, infringing on the press freedom, abridging the freedom of speech, prohibiting the petition of government redress of grievances or interfering with the right to peaceably assemble (Wirenius, 2000, p. 3).

The First Amendment clearly protects hate speech in various situations. The First Amendment supporters feel that they should combat with the groups that oppose hate speech since protecting this form of speech would limit government control (Gould, 2005, p. 25). They believe if the government allows the limitation of speech, they will allow the authorities to limit opinions.
The idea whether the constitution should protect hate speech remains controversial. Developing policies that limit an individual ability to exercise free speech leads to the risk of discouraging or still protecting it. However, a balance that protects community interests and safeguards the individual rights without limiting the civil liberties of the speakers must be found.

Under the First Amendment, an individual has the right to exercise the freedom of speech that a listener disagrees with and, therefore, has the freedom that is offensive and hateful (Gould, 2005, p. 32). It also allows the citizens of the United States of America to be freely exposed to the variety and a wide range of views and opinions. This amendment was intended to ensure a free exchange of the ideas even if they are unpopular.

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Freedom of speech encompasses not only written or spoken words, but also all kinds of expressions including pictures, non-verbal communications, arts, advertisements, and movies. Under the provision of the First Amendment, the media, which includes radio stations, television, and the Internet, is free to distribute a wide range of facts, news, opinions, and pictures.
The First Amendment protects a free speaker and also a person who receives the information. Therefore, the right to hear, read, see, and obtain different points of view is the right protected under the First Amendment as well. Moreover, it is not absolute in certain circumstances. The Supreme Court of the United States excluded the possibility of the government to allow the limit of the speech sometimes (Gould, 2005, p.41). The authorities, for instance, may limit or even ban libel (the communication of false statements about a person that may spoil his/her reputation), fighting words, obscenity, and words or expressions that present danger of inciting violence. The government may also regulate speech by limiting the place, time or manner in which the statement is made. For instance, it may require activists to obtain a permit before holding a large protest rally in a public street.

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The First Amendment also protects the rights in the following areas. The right to assemble, where the government cannot force people to join a group they don’t wish to. The right to petition which includes everything from signing a petition to filing lawsuits (Fellman, David, & Walter, 2004, p. 33). The First Amendment clause provides each person with the right to freely practice his/her religious beliefs, as well as openly exercise them by attending services and praying in private, public places, and wearing religious clothing. It also stipulates right not to believe in any religion and not to be forced to participate in religious activities. This clause also prevents the government from creating a church, endorsing religion in general, or favoring one set of religious beliefs over another.

Hate speech is a persuasive problem suffered particularly by ethnic and social minorities. It can undermine self-esteem, cause isolation, and result in violence. Words can be damaging, and these damages can be heightened by contextual factors and emotions. Hate speech has led to increase in hate crimes. Words can reinforce and maintain social inequality in workplaces, homes, and in the society. The hate messages are real and immediate for the victims. So, professor Patricia Williams called them “spirit murder”. For instance, there has been no organization that justifiably persuaded on the grounds of hate speech than the Ku Klux Klan. However, the arrest of an Ohio Klansman named Clarence Brandenburg on criminal syndicalism charges, based on Ku Klux Klan speech that recommended overthrowing the government, was overturned in a ruling that protected radicals of all political persuasions ever since. Justice William Brennan argued that the constitution guaranteed freedom of speech and the presses don’t allow a state to forbid or proscribe advocacy of the use of force or law violation except the cases where such advocacy is directed to inciting or producing imminent lawless action that is likely to produce or incite such action. This test has been modified very little from its inception dated 1969 and the formulation is still a good law in the United States of America (Fellman, David, & Walter, 2004, p. 51).

Only speech that poses an imminent danger of unlawful action, where the speaker has an intention to incite such action and that there is likelihood that this will be the consequence of the person’s speech, may be restricted and punished by the law.

Under the Civil Rights Act of 1964, an employer may be prosecuted by tolerating hate speech by their employees, if the expression contributes to a broader pattern of harassment resulting in a hostile working environment for other employees. Also, more than 350 public universities in the United States of America adopted so called “speech codes”. They regulated discriminatory speech by faculties and students. These codes have not fared well in courts. They were frequently overturned as violations of the First Amendment. With the adoption of anti-harassment codes covering discriminating speech, the debates over restriction of hate speech in public universities have resurfaced (Gander, 2007, 28).

First Amendment Solutions of Hate Speech

One of the effective ways to deal with hate speech is to create laws and policies that will discourage bad behavior but will not punish wrong beliefs. Another way of doing this is to create policies and laws that do not define hate speech as acts or hate crimes. For instance, R.A.V v City of St. Paul, Minn, neighborhood. Burning a cross is considered to be one of the hateful things to do as it is one of the symbols of Ku Klux Klan (Fellman, David, & Walter, 2004, p. 27). It is the organization that spread hatred and harm throughout the country. Burning of the cross by the youth symbolized that the boy did not welcome them in their neighborhood. The family brought charges. The child was prosecuted under the Minnesota criminal law that made it illegal to place on private or public property a burning cross or any other symbol likely to arouse anger, resentment or alarm in others on the basis of color, race, gender, creed, or religion. The case proceeded and went all way to the Supreme Court (Fellman, David, and Walter, 2004, p .79). According to the Supreme Court, the Minnesota law was unconstitutional since it violated the youth’s First Amendment free speech rights. This court didn’t rule the act itself, which is burning a cross on the family’s front lawn, was legal. In fact, the youth could have been held criminally responsible for damaging property, intimidating the family or for threatening. Instead, the law was defective since it improperly focused on the motivation for thinking that it resulted in criminal behavior rather than the criminal behavior itself. Thus, it attempted to punish the youth for the content of his message not for his actions.

There are approaches to when hate speech might be regulated, namely the libertarian and the communitarian perspective. Libertarians believe that individuals have the right to free speech and that the government should be able to limit it only for the most compelling reasons. A majority of libertarians recognize fighting words as an example of a compelling reason for the government to restrict speech (Farber, 1998, p.16). On the other hand, communitarians believe that the society’s most important goal is community’s well-being and that an individual’s right of speech may be limited in the interests of community welfare.

There have been the arguments that freedom of speech is not hate speech and that free speech promotes justice, harmony, and democracy. Protection of free speech encourages expression of ideas and opinions. Under the First Amendment of the United States Constitution, this is protected but does not encourage injustices through hate speech.

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