Yes, Hate Speech Is Protected Under the First Amendment

Salman Rushie with Sen. Bernie Sanders

Below is my column in The Hill on the increasing claims that hate speech is not protected by the First Amendment. Even dictionaries are now repeating this false claim and polls show that a majority of students believe that hate speech falls outside of the scope of protected speech. For those who often rail against “disinformation,” this is a particularly dangerous false narrative meant to support expanded censorship and speech controls. Even Salman Rushdie has been been invoked in the campaign against hate speech.  We should all denounce hate speech but that is not a license for the government to censor or ban such speech.

Here is the column:

Author Salman Rushdie, still recovering from the latest assassination attempt, once said freedom of speech must include “the freedom to offend” or “it ceases to exist.” Rushdie has risked his very life to support that principle after being put under a death threat by Iran’s then-Supreme Leader Ayatollah Ruhollah Khomeini in 1989 for allegedly insulting Islam.

Recently, when Secretary of State Antony Blinken responded to the attack on Rushdie, he notably attacked the role of hate speech as one of “the pernicious forces that seek to undermine these rights.” It was a curious spin. Rushdie has fought limitations on speech and was himself accused of a type of hate speech toward Islam. Due to his alleged blasphemy, his accusers declared not just his right to speech but his right to life as forfeit.

The use of Rushdie to further calls to curtail hate speech may be bizarre but it is not surprising. There is a concerted effort by the Biden administration and many Democrats to censor anything deemed hateful on the internet and social media.

That was evident at the start of a recent House hearing on the government’s role in censoring citizens on social media. As one of the witnesses, I was taken aback by the opening statement of the committee’s ranking Democrat, Del. Stacey Plaskett (D-V.I.). Besides opposing an investigation into the role of the FBI and other agencies in such censorship, Plaskett declared that “I hope that [all members] recognize that there is speech that is not constitutionally protected,” and then referenced hate speech as an example.

Hate speech is indeed a scourge in our nation, but it is also protected under our Constitution. Yet many politicians and pundits are using this false constitutional claim to defend potentially unconstitutional actions by the government.

Recently, Sen. Ben Cardin (D-Md.), who is a lawyer, said that “if you espouse hate … you’re not protected under the First Amendment.” Former Democratic presidential candidate Howard Dean declared the identical position: “Hate speech is not protected by the First Amendment.”

Even some dictionaries now espouse this false premise, defining “hate speech” as “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”

It is not an argument that improves with repetition. Yet, there have been calls to ban hate speech for years. Even former journalist and Obama State Department official Richard Stengel has insisted that while “the First Amendment protects the ‘thought that we hate’ … it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw.”

Actually, It is not a design flaw but the very essence of the Framers’ design.

The First Amendment does not distinguish between types of speech, clearly stating: “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.”

While the Supreme Court has allowed limited exceptions, it does not bestow on the government the open right to strip protection of speech because it is deemed “hateful.” Indeed, in Brandenburg v. Ohio, a 1969 case involving “violent speech,” the court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the Ku Klux Klan to speak out, even though it is a hateful organization. Likewise, in RAV v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” In Snyder v. Phelps, also in 2011, the court said the hateful protests of Westboro Baptist Church were protected.

Courts have long held the line against efforts to ban hate speech, as one did in 1995 by striking down Stanford’s hate-speech ban. Courts have long rejected such labels as excuses for sanctioning speech. In 1928, a man was convicted for blasphemy in Little Rock, Ark., after putting a poster in a shop window reading “Evolution is true.” Many also thought that message was harmful.

More recently, a federal court enjoined a New York effort to ban “hateful conduct” on social media. In Volokh v. James, U.S. District Judge Andrew Carter Jr. granted a preliminary injunction on the basis that “the Hateful Conduct Law” is blatantly unconstitutional, which it most certainly is. The law defined “hateful conduct” as “the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression” [N.Y. Gen. Bus. Law § 394-ccc(1)(a)].

He wrote that “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The work of conscientious judges like Carter ordinarily blunts the impact of false constitutional claims, even when widely held. But this myth is now being used to justify a wide array of censorship. It is the very type of “disinformation” that many Democrats love to cite as the basis for silencing others.

Social media companies have used “hate speech” to justify censorship of opposing views. LinkedIn reportedly has added its company name to this ignoble effort, according to an Air Force veteran whose account was disabled after criticizing calls for loan forgiveness. The site reportedly declared that opposing the Democratic plan for loan forgiveness is “hate speech.” TikTok labeled as hate speech a video supporting Kyle Rittenhouse, acquitted of killing protesters in Kenosha, Wis., in 2020. The video discussed the effort by Arizona State University students to ban Rittenhouse from campus.

The hate-speech designation is often used to justify punishing or silencing opposing views. When Michigan football head coach Jim Harbaugh recently made a pro-life comment, it was declared hate speech by some, and there were calls for his termination. By labeling some views as “hateful,” social media companies claim full license to silence opposing views.

In a chilling statement before a recent House hearing, former Twitter executive Anika Collier Navaroli was asked about the standard of censorship by Rep. Melanie Stansbury (D-N.M.) and explained that Twitter tries not to just balance “free speech versus safety.” Rather, it would ask “free speech for whom and public safety for whom. So whose free expression are we protecting at the expense of whose safety and whose safety are we willing to allow to go the winds so that people can speak freely.” Rep. Stansbury responded: “Exactly.”

So, by declaring speech harmful or hateful, these companies can make “nuanced” choices as to who should be allowed to speak.

The repetition of such false claims on hate speech being unprotected has had its impact; polls show almost half of college students believe hate speech is not constitutionally protected. But it is particularly chilling for one of the nation’s most powerful politicians, sworn to “support and defend the Constitution,” to show either a lack of knowledge or lack of fealty to the First Amendment.

Hating hate speech is no vice — but it is also no license for censorship.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

126 thoughts on “Yes, Hate Speech Is Protected Under the First Amendment”

  1. Hate speech is whatever the person you have offended says is is. Canada has laws against it, and people convicted of hate speech. We do not have hate speech laws here. We do have Hate Crime laws. It seems like the only people convicted of, or charged with hate crimes are straight White men. Please prove me wrong.

    1. One can’t be.

      Where on earth did you get the idea that it is possible to be prosecuted, in the USA, for hate speech? It’s not something that ever happens, because it can’t happen.

  2. Professor Turley, I hold you in great academic stead. Here now, the second amendment superfluous and so follows the first. The converting all to the pejorative (hate speech) has made waste to the effectiveness of the 1st Amendment. Go ahead; yell fire in a crowded theater. Should one not detect the flames or smoke and runs in panic, so fool are they.. (Caveat Emptor) Redefine the words, reorient the truth. The avocation of falsehoods through media has made voting a hollow ritual. The standing army, so designed in Posse Comitatus for foreign invasions runs shill in the realization of the mirrored twins in the FBI, ATF, IRS, etc. The Constitution was the road map that few followed, but found reason to ignore in modernization adaptations.

    Stupidity and speaking in falsehoods need to be challenged, but not stifled. Hence, name calling is the first defense in assuring that the rigors of truth might stand. Free speech above all and totally unrestricted. A fast and expedient recourse (Habeas Corpus) on maligned, malicious malfeasance presented strictly in design in irony to subdue is quixotic. Such a Habeas Corpus is beyond the rigors of any judicial system based solely on name calling. Deal with it and leave the courts out of the mix for name calling ! Therefore, free speech must not be infringed as has been the undertaking of the 2nd.

  3. The big problem is that words have become redefined, newspeak style. The word hate historically referred to a visceral, irrational, extreme dislike. However in the current climate, even disapproval, or in some cases ‘lack of approval’ is classified as hate. Under these defacto definitions, most anything that someone dislikes is ‘hate speech’

  4. I think you’re a great guy and all, Professor, but I just totally reject the entire concept of hate speech as you seem to describe it. Hate speech is not a thing. It is merely a cultural innovation by some left-wing groups to demonize conservative speech. It is just a cultural weapon to browbeat certain groups but not others. Meanwhile, casual scorn and hatred of conservatives is totally normalized now and even expected on late-night talk shows, as an example. Their hate speech is “funny.” Ours warrants censorship and incarceration.

    1. You are entirely correct. ‘Hate speech’ is simply speech that is hated by (((Leftists))) and other privileged groups. Meanwhile, Whites, conservatives, Southerners, and other heritage Americans are routinely scorned as Nazis, White supremacists, Fascists, etc. These incendiary insults from Democrats, liberals, POC, etc., are also ‘hate speech’.

      1. You know that the triple-parenthesis is used by Jews to indicate that they’re Jews, right?

        Are you equating Jews and people on the left?

        1. Triple parens are used by antisemites to designate Jews. Some Jews have adopted the measure in order to confound the antisemites, or to hold them up to ridicule.

  5. I always laugh when those who proclaim themselves “educated” and “informed” prove themselves to be the complete opposite on issues about which they opine, such as what the First Amendment protects.

  6. Nothing enrages the left and provokes the lowest and most scurrilous attacks more than when a person they believe they own due to their membership in a “marginalized” group proclaims their independence and right to think critically.

    -Glenn Greenwald

  7. The work of conscientious judges like Carter ordinarily blunts the impact of false constitutional claims.

    How long until most judges are not conscientious? Karl Llewelyn famously said “The law is what a judge will do.” What worries me is the sorry state of law schools and law faculties (present company excepted) which value coercion and authoritarianism in service of the far-Left’s agenda, over constitutional freedoms. The new crop of judges will be drawn from the students taught by such faculties.

  8. “Congress shall make no law…abridging the freedom of speech.”

    The freedom of speech is not qualified by the Constitution and is, therefore, absolute.

    The inverse, censorship, is absolutely unconstitutional, with the exception of its occurrence on private property.

    The freedom of speech allows every person to “insult the King” et al. without fear of the “loss of his head.”

    That one does not appreciate the absolute freedom of speech does not bear.

    Freedom of speech does not preclude action against empirical defamation, or otherwise bodily injury or property damage, caused by the enjoyment of the freedom of speech.

    Caveat Emptor – Individuals are responsible for the effects of their enjoyment of the absolute freedom of speech.

    1st Amendment

    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.

    1. George wants to be able to murder people for religious reasons and not have it prosecuted because, according to him, the free exercise of religion is absolute.

      1. You, jester, have me confused with the Catholic church et al.

        Any exercise that results in bodily injury, property damage, etc., is a violation of superior law and statute and is actionable.

        Caveat Emptor: Do not violate the law when exercising your absolute freedom of speech, religion, etc.

      2. They can believe that, but homicide is illegal. Free Speech protected by 1st AM doesn’t violate any other law. Your comment is actually irrelevant to free speech. If a person’s religion leads to violation of other constitutional laws, those laws can be enforced. Free Speech does not give you the right to break other constitutional laws. So it is completely consistent to allow hate speech and yet still enforce a statute of homicide against a person who thinks their religion allows them to murder someone.

    2. George wants to be able to commit perjury and not be prosecuted, because according to him, freedom of speech is absolute.

      1. Ditto.

        I am certain that everyone appreciates this precious moment of comedic relief engendered of your unintelligible incoherence and obtuse inanity.

        Thank you so much.

        Oh, and please keep reading; I do eminently value your esteemed patronage.

  9. Professor Turley, aka Darren Smith, there is no freedom of speech if the speaker is not identified.

    The freedom of speech is enjoyed by speakers who can be heard, seen, identified and responded to.

    The “anonymous” moniker must be terminated for use by posters on the Turley Blog.

    Each poster must maintain one, consistent, several name that identifies him as a particular individual visitor, at least a contrived nom de plume.

    1. Anonymous free speech was reaffirmed in Watchtower Bible and Tract Society v. Village of Stratton on an 8-1 decision Reinhquist dissenting. The decision was weird because the the petitioner, WTBTS, did not object to identifying themselves when asked. In funny exchange the petitioners attorney is asked why he is arguing for it. He said so many of the birds on their side wanted so he is going along. Open honesty; what a rarity.

      1. And the law becomes the victim.

        I appreciate that, which is what I have consistently presented. Justices of the Supreme Court have sworn an oath to support the “manifest tenor” of the Constitution. They have not. They must have been impeached. It’s not clear if the Watchtower v. Stratton matter was actually one of private property, the owners of which may deny freedom of speech, or municipal loitering. No municipality has any power to deny the superior, constitutional freedom of speech. Obamacare is clearly unconstitutional in multiple aspects. The Supreme Court of 1973 was totally corrupt and demonstrably unsupportive of the Constitution which provides no right to abortion but leaves its legality to States. Your court must have been impeached and convicted for abusing power, usurping power, illicitly amending the Constitution and denying the freedom of speech. Chief Justice Roger B. Taney demonstrated the irrefutable unconstitutionality of President Lincoln’s suspension of habeas corpus. The Supreme Court of 1869 preposterously declared secession unconstitutional when no prohibition of secession exists, secession was supported in writing by Founders, and secession was undertaken by West Virginia, the American colonies, Pakistan, Bangladesh, East Timor, Great Britain v. the EU, Catalan v. Spain, Scotland, etc, etc., etc., around the globe and throughout history.


        The fact of the matter is that the entire communist American welfare state is unconstitutional. Congress has the power to tax for ONLY debt, defense and general Welfare, aka infrastructure, the power to regulate ONLY money, commerce among States, and land and naval Forces, and NO power to “claim or exercise” any degree of dominion over private property.

        “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

        “…men…do…what their powers do not authorize, [and] what they forbid.”

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

        “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

        – James Madison

Leave a Reply