Category Archives: Uncharted Territory

Does the First Amendment Protect Hate Speech?

Slander/Libel, Fighting words, and obscenity can be hate speech, but not all hate speech is slander/libel, fighting words, and obscenity. The First Amendment protects the majority of hate speech, but the only thing that it doesn’t protect is when someone is openly abusing the individual(s) with hate toward their race, color, ethnicity, gender, disability, sexual orientation, or religion.

Hate speech can be obscenity. An example of this is the R.A.V. v. City of St. Paul court case. Allegedly, a group of teenagers burned “a crudely fashioned cross on a black family’s lawn.” Based on the United State’s short history, not long ago were African Americans segregated against, and tortured and murdered. The Klu Klux Klan was a group organized in 1865, specifically made to strike fear into the hearts of African Americans and those that supported them. Eventually, the Klu Klux Klan decided to act, who continued to suppress newly freed slaves as well as beat and hang them. Their symbol was their white outfits as well as the burning cross. The display of this on the family’s yard caused extreme anger, and aroused fear based on their race. The issue is that hate speech itself falls into a number of different categories that are considered crimes. The article provides an example, “threatening to kill someone because he’s black (or white) or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime.” This is hate speech, but falls under the illegal status because one cannot make true threats at another or try to start crimes for any reason. Hate speech can also be slander/libel. The Beauharnais v. Illinois was a case where a man posted papers asking government officials to “halt the encroachment, harassment, and invasion of white people and call whites to unite against the violence perpetrated by African-Americans.” This is libel against the African-American race, and collectively insulting every person that is or identifies with that race.

Lawyers say that hate speech itself is not part of the exceptions of the first amendment unless it falls under one of the other kinds of unprotected expression. The lines are not clearly drawn out, and hate speech continues to happen with no consequence because it is so difficult to pinpoint. The first amendment protects any speech, no matter how emotionally harmful, unless it poses physical harm, or is direct or personal toward another person. The first amendment is not just freedom of speech, but freedom of expression. Through the court system, there have been many cases where there has been tension because of what someone was wearing, including the Cohen v. California case. In this case, a man decided to wear a jacket showing his opposition to the Vietnam war. He was taken to court about it, but the judges protected him stating, “one man’s vulgarity is another man’s lyric.” The court protected the emotive and cognitive element of speech even though Cohen was found guilty and served 30 days in jail.

The Village of Skokie v. National Socialist Party of America was another case where clothing was questioned. A march was going to take place, and the marchers wanted to wear clothing extremely similar to those that Nazis wore, including the armband Swastika. The major issue was that the march would take place in a village where a large number of the population was Jewish, and most of whom had survived the concentration camps. The court case looked at the Cohen v. California case and ruled that the Nationalist Socialist Party could wear what they wanted to. The court said that the “government could not base rules on the feelings of “the most squeamish among us” and that the wearing of the swastikas was “a matter of taste and style.””

Hate speech is a giant grey area within modern day law. Many fights start with someone stating something awful to another person. A person could say something that would be fighting words, but the saying itself would not be the crime, but what follows after what was said would be. The internet makes it even more difficult to legislate hate speech. Hate speech is said every day on many platforms, that it would take an extremely long time and nearly impossible to shut down every website or every post that showed any sign of hate speech. The concept of “one man’s vulgarity is another man’s lyric,” makes one’s speech difficult to judge unless it is blatantly stated in a way that crosses the lines on one or more of the already established limits of speech.



Demaske, C. (2018). Hate Speech. [online] Available at: [Accessed 25 Sep. 2018].

Gjelten, E. (2018). Does the First Amendment Protect Hate Speech?. [online] Available at: [Accessed 25 Sep. 2018].

Oyez. (2018). Beauharnais v. Illinois. [online] Available at: [Accessed 25 Sep. 2018].

Oyez. (2018). Cohen v. California. [online] Available at: [Accessed 25 Sep. 2018].

Oyez. (2018). R.A.V. v. City of St. Paul. [online] Available at: [Accessed 25 Sep. 2018].