Hate Speech Is Protected Speech: The First Amendment’s Unshakable Shield

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Hate speech is detestable. When I hear or read about antisemitic statements or other hate speech, I recoil. However, I recognize that the First Amendment to the United States Constitution stands as a cornerstone of American democracy. It ensures that citizens have the right to express themselves freely, regardless of how unpopular, offensive, or even hateful their opinions may be. At the heart of this legal tradition lies a difficult but essential truth: hate speech is protected under the First Amendment. While hate speech may be corrosive or morally detestable, it remains protected because any effort to censor it gives the government dangerous power to suppress dissent and define which ideas are acceptable. That power is incompatible with a free society.

The Text and Intent of the First Amendment

The First Amendment states: “Congress shall make no law… abridging the freedom of speech.” There are no exceptions carved out for hate speech. Though U.S. courts have identified certain narrow categories of unprotected speech—such as incitement to imminent lawless action, true threats, obscenity, and defamation—hate speech as a category has never been excluded. Speech is not unprotected merely because it offends or targets a group.

This legal principle isn’t an oversight. The framers of the Constitution were acutely aware of the dangers of government overreach and crafted the First Amendment precisely to prevent the state from policing ideas—even abhorrent ones.

Supreme Court Precedents: Hate Speech Is Still Free Speech

Over the past several decades, the U.S. Supreme Court has consistently upheld the protection of hate speech under the First Amendment.

In Brandenburg v. Ohio (1969), the Court ruled that a Ku Klux Klan leader’s racist and anti-Semitic tirade—advocating violence against Jews and Black Americans—was protected speech, so long as it did not incite imminent lawless action. Merely advocating hatred or violence in the abstract was not enough to criminalize speech.

In R.A.V. v. City of St. Paul (1992), a teenager burned a cross on a Black family’s lawn—a horrifying act of racial intimidation. Yet the Court ruled that a city ordinance banning symbols that “arouse anger… on the basis of race” was unconstitutional because it punished speech based on its content. Even a symbol as repugnant as a burning cross cannot be banned simply because of the hateful message it conveys.

In Snyder v. Phelps (2011), the Westboro Baptist Church picketed a military funeral with signs reading “Thank God for Dead Soldiers” and “God Hates Fags,” asserting that American deaths were divine punishment for tolerance of homosexuality. The Court held that, despite the emotional harm to the family, the speech was protected because it concerned public issues on public property.

What about more recent and specific examples? Chanting “Jews will not replace us” during the 2017 Unite the Right rally in Charlottesville—as vile and bigoted as that statement is—is still constitutionally protected speech. Similarly, a person claiming “Islam is a cancer” or calling for all Muslims to be deported, though overtly anti-Muslim, falls within the realm of protected expression under current First Amendment jurisprudence. Slurs such as the n-word, or derogatory statements like “Mexicans are criminals”, if spoken in general and not as direct threats or targeted harassment, remain protected.

These examples are not morally defensible—but the Constitution does not hinge protection on morality. It hinges it on principle.

The Slippery Slope of Censorship

A common rebuttal is that hate speech causes real-world harm—especially to historically marginalized groups—and therefore deserves regulation. But the danger in that reasoning lies in the subjectivity of offense. What offends one person may seem like truth or satire to another. Allowing the government to ban speech on the basis of its emotional or social “harm” sets an unstable precedent. Who defines what is hateful? Where do we draw the line?

If anti-Muslim rhetoric like “ban all Muslims” can be banned today, then could criticism of Islam as a belief system—no matter how respectfully phrased—be banned tomorrow? If “Zionists are oppressors” is labeled antisemitic hate speech, does that criminalize criticism of Israeli government policy? Once we give the state the power to define what is hateful, we empower it to suppress not only bigotry, but also dissent, art, satire, and political opposition.

Throughout U.S. history, those labeled “dangerous” or “divisive” have often been the ones demanding justice: civil rights activists, anti-war protestors, labor organizers. What begins as a law against Nazis or racists can become a law used against whistleblowers, academics, or religious minorities.

The Better Response to Hate Speech: More Speech

Justice Louis Brandeis offered a compelling solution to dangerous or offensive ideas: not suppression, but more speech. The proper remedy to hate speech is counter-speech—public condemnation, education, protest, and dialogue—not government censorship.

Silencing hate doesn’t destroy it; it simply drives it underground, where it often grows more extreme and unchallenged. Bringing hate speech into the open allows society to expose it, reject it, and defeat it publicly and intellectually. When a white supremacist makes their views known, people are free to respond, organize against them, and condemn them in the public square.

In practical terms, this means racist or antisemitic slogans—while protected—can still be met with peaceful protest, boycotts, and social condemnation. A university cannot stop a student from saying “white people are superior,” but fellow students can make clear that such views are unacceptable in their community.

Importantly, while hate speech is protected from government censorship, private institutions—like schools, companies, or social media platforms—retain their right to set standards and ban users or employees based on conduct or language. The First Amendment protects speech from government action, not from consequences in the private sphere.

International Comparisons: Cautionary Tales

Some point to countries like Germany, the United Kingdom, or Canada, which have laws banning hate speech. While these laws are often well-intentioned, they can also result in government overreach. In the UK, people have been arrested for social media posts deemed “grossly offensive”—including jokes or political satire. In France, anti-Zionist views have been prosecuted as hate speech. These cases illustrate how hate speech laws can be used to criminalize political expression rather than just prevent harm.

The U.S. model stands out in its clarity and consistency. It is not perfect, but it provides the strongest safeguard for dissent, expression, and individual liberty.

Conclusion: Freedom Includes the Ugly Parts

Freedom is not neat or easy. It demands that we protect speech we hate in order to protect the speech we cherish. Hate speech—whether it is antisemitic slogans, racist slurs, or anti-Muslim diatribes—is repugnant to the values of equality and justice. But criminalizing such speech does not erase hate; it simply gives the government the power to silence ideas. That power is far more dangerous than the words it seeks to suppress.

To safeguard democracy, we must tolerate even the most intolerable speech. Not because we agree with it—but because we understand that free expression must apply to all or it applies to none. In the battle of ideas, let the better arguments win—not the bigger censor.