The First Amendment allows most hate speech

John Anastasi, The Intelligencer
·2 min read
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When James Madison and the Founders drafted the First Amendment little did they know that its simple 45 words protecting freedom of speech, religion, assembly and the press would be the subject of an unfathomable ocean of discussion, dissection and debate among scholars, activists, educators, attorneys, judges, politicians, journalists, clergymen and citizens over the course of U.S. history.

In 1919, the U.S. Supreme Court and Justice Oliver Wendell Holmes established the long-held "Clear and Present Danger Test" in Schenck v. United States. It stipulated that free speech could only be limited if words uttered in a particular circumstance posed a "clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

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Fifty years later, in Brandenburg v. Ohio, the Supreme Court overturned the conviction of a member of the Ku Klux Klan be determining that speech, including his, can only be suppressed if it's intended to — and likely to — produce "imminent lawless action." More recently, the First Amendment protected the Westboro Baptist Church's right to picket military funerals bearing signs like "Thank God for Dead Soldiers" and "God Hates the USA" (Snyder v. Phelps). That case was decided in 2011.

So, absent the intent to spark "imminent lawless action," threaten serious bodily harm or breach the peace through so-called "fighting words," hateful rhetoric is protected.

By the way, not protected are defamatory falsehoods about public officials uttered or published with "actual malice," which the Supreme Court defined in 1964 as "knowledge that the statement was false or with reckless disregard of whether it was false or not" in New York Times Co. v. Sullivan.

The American Civil Liberties Union, which has defended the First Amendment rights of hate groups like the KKK and the Nazis, recently authored a position paper on freedom of expression that posits, "If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one's liberty will be secure."

This article originally appeared on The Intelligencer: The First Amendment allows most hate speech