Is Hate Speech Protected Under the 1st Amendment?

Is Hate Speech Protected Under the 1st Amendment?

( – The right to free speech is fundamental in the United States. There are very few limitations on it for that reason. Unlike other countries, like Germany, America doesn’t have any restrictions on “hate” speech. That’s not for lack of trying.

Since 2003, the Supreme Court of the United States (SCOTUS) has ruled three times on whether or not hate speech is protected. In each instance, the justices made it clear: the Constitution doesn’t prohibit speech that makes others uncomfortable.

Virginia v. Black

In 2003, the justices on the SCOTUS handed down a controversial opinion in the case of Virginia v. Black. In a 5-4 decision, Justice Sandra Day O’Connor wrote the majority opinion for the court and held Virginia’s ban on public cross burnings violated the First Amendment’s free speech clause.

O’Connor explained a state might only ban the activity if it’s intentionally carried out to intimidate, but the state has to prove intent. In other words, burning a cross on someone’s front lawn might lead to a prosecution, but not if it’s carried out on someone’s private property in full view of the public.

Snyder v. Phelps

In 2011, in Snyder v. Phelps, the First Amendment was back in the SCOTUS, after the family of a soldier killed in action sued the Westboro Baptist Church (WBC) for protesting the funeral. The service member’s survivors claimed WBC intentionally inflicted emotional distress on them when they showed up outside of the service with signs that read “Thank God for dead soldiers,” and other awful phrases.

In an 8-1 ruling, the justices once again protected the First Amendment. Chief Justice John Roberts was sympathetic, but ruled the speech was protected because it was “related to broader public issues.”

Matal v. Tam

Just six years after the justices ruled on Snyder v. Phelps, the high court handed down an 8-0 decision in another First Amendment case, Matal v. Tam.

The case was brought forward after Simon Tam, a member of a band named “The Slants,” was denied a trademark by the Patent and Trademark Office because the group’s name was offensive. Justice Samuel Alito wrote the majority opinion for the court and made it clear the government can’t restrict free speech because it expresses “ideas that offend.”

Why Does the Court Protect Unpopular Speech?

Justice Anthony Kennedy explained why the court doesn’t restrict speech that some people believe is hateful in the Matal v. Tam case. He said a law that’s “directed against speech found offensive to some” members of society could be used as a means to turn “against minority and dissenting views” and damage the US’ democracy.

It’s not the government’s job or place to police free speech and expression. The Founding Fathers were very clear about that when they wrote the First Amendment. Giving federal lawmakers the power to decide what is and isn’t offensive or hateful, never leads anywhere free. All one has to do is look at China to see what happens.

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