Is hate speech free speech?

In the wake of Charlottesville, and the ensuing protests afterwards, your social media feed has probably been full of debates about whether Neo-Nazis, White Supremacists, and the Alt-Right who applied for a permit in Charlottesville had a right to demonstrate, regardless of the message they were trying to send or the body armor they donned while doing so. If you’ve exhausted yourself fighting with second cousins and high school classmates, take consolation that you are just one of many minds that have grappled with this question.

     Free Speech is one of the five protected rights enshrined in our First Amendment, and is indeed one of the things that can make America a great place to live. However free speech is not a uniquely American idea. The Ancient Greeks are attributed with the original creation of free speech – it is the foundation of democracy and gives us intellectual and social space to push the questions surrounding our existential meaning. Clever as they were, they also had problems with its boundaries. Socrates, a philosopher famous for a quote taken during his testimony, “an unexamined life is not worth living”, was sentenced to death for making fun of the king.

     Freedom of speech has also been enshrined in International Law. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights lay out the importance of individuals being able to express, share, and receive information and opinions freely. Many other countries have free speech worked into their domestic law. Many of these laws tend to guarantee the same right to free expression that we get in America. Some go so far as to outlaw things like Holocaust Denial or speech aimed at limiting other people’s rights.

     In America, we have relatively permissive freedom of speech rules shaped by the Supreme Court, including the protection of hate speech. Terminiello v. Chicago (1949) and Brandenburg v. Ohio (1969) both spoke to the way in which America really values the language of the Constitution. The court faced discriminatory language and language critical of the government, respectively, with the precedent that there is no room for policing the language of others so long as it doesn’t present a clear and imminent danger to others.  

     Speaking specifically to swastikas, the SCOTUS ruled “A community need not wait to be subverted by street riots and storm troopers; but, also, it cannot, by its policemen or commissioners, suppress a speaker, in prior restraint, on the basis of news reports, hysteria, or inference that what he did yesterday, he will do today” in the National Socialist Party v. The Village of Skokie (1977).
They additionally reason that allowing the government to make decisions about what is or isn’t offensive is tricky, as people could be subject to mob rule, i.e. people in a city or a neighborhood could just as easily revert to bigoted ideas about who should be allowed to express themselves in the community. Ironically, because of the precedent it would set to outlaw a specific opinion or perspective, it is in defense of marginalized people that hate speech continues to be protected.

     Defending hate speech under the cloak for free speech is not to say that free speech is speech free from consequences. As a result of the Charlottesville rally, a large number of people who were identified as members of ‘the Alt-Right’ have lost their jobs, been publicly disowned by their family, and ousted from their communities. To the unlikely few upset by this, breathe easy knowing that a reporter lost her job in 2011 by participating in a Washington D.C. ‘Occupy’ protest.  

     An interesting concept when trying to dissect the debate is the Paradox of Tolerance. Philosopher Karl Popper suggests that maintaining a tolerant society is not contingent upon extending that tolerance to people who perpetuate intolerance. In fact it is necessary for the survival of a tolerant society that we “not […] tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.”
From this author’s perspective: unfortunately, Karl Popper isn’t in congress.
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     Long story short: Yes, in the United States, hate speech is protected speech unless it puts a person’s life in imminent danger. While there is clearly an argument to be made that the historical context of Nazi propaganda presents a message of danger, the images or speech itself is not tantamount to the genocide they advocate. Whether hate speech deserves to be protected is still a contentious issue, regardless of partisan affiliation, and great minds alike have advocated for either position.

​Check out the video from PBS below for more insight!