Should Hate Speech Be Free Speech?

By Ashleigh Creed

The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

“Hate speech is not free speech!” This has been a mantra of the so-called opposition in recent years with the ascent of the Trump administration, and for good reason. Identity based nationalism of the sort promoted by Trump and his surrogates has inspired old hatred, with deep roots in traditional U.S. conservatism, to re-emerge in a bigotry inspired crusade to “make America great again.” White supremacists, Nazis, and Klan members now rally proudly in our cities, while others troll the free web.

But – hate speech actually is free speech.  So what redress is available to the intended victims of those insular racists and xenophobes exercising their right to free speech? Short of managing to squeeze into any narrowly construed exception in the First Amendment, absolutely nothing. Targeted minorities are left to simply accept and deal with the perennial shadow of prejudice in their lives. Which can leave one asking, is America truly the home of the free?

Freedom of speech is a double-edged sword. One is free to think, speak, and act as one wants without hindrance or restraint by the government, as laid out and protected by the First Amendment; however, one cannot restrict the freedom of others in doing so. The big question, then, is when does speech begin to impose on another’s freedom? As mentioned, there are a few, narrowly construed, established limits on free speech that attempt to draw the line between freedom and imposition. Some of those limits include: obscenity, defamation, and incitement. Traditionally, “fighting words,” words that tend to incite violence or inflict injury, were also wholly unprotected by the First Amendment in a recognized need to protect individuals from “the fear of violence, the disruption that fear engenders, and the possibility that the threatened violence will occur.” [1]  However, in 1992, the Supreme Court held “fighting words” to be simply a mode of communication rather than content based speech.  Essentially, ruling hate speech to be a protected form of public discussion.

In 2011, the constitutionality of that hate speech protection was challenged by a Mr. Albert Snyder. The action arose when, during the funeral for his marine son, members of the Westboro Baptist Church protested outside chanting things like, “[t]hank God for IEDs,” and “[t]hank God for dead soldiers.”[2] During trial, expert witnesses testified that Snyder suffered extreme emotional anguish resulting in severe depression.  However, the Court ruled that, “the First Amendment serves as a defense to tort claims when the speech at issue involves ‘matters of public concern’,” and ruled in favor of the defendants. With its ruling in Snyder v. Phelps, the Supreme Court did away with the attempt at use of emotional harm for hate speech regulation.

So, we are left with a gap in the law for victims of hate speech who suffer neurological and emotional harm, and that gap is one that simply cannot be left open. Why? Because the neurological and emotional harm is an imposition on the freedom of the victims. In an article entitled, “Why Hate Speech is Not Free Speech,” author George Lakoff explores this notion arguing that, “because language has a psychological effect imposed physically — on the neural system, with long-term crippling effects”, “. . . hate speech can be a physical imposition on the freedom of others.” (emphasis added).  Lakoff goes on to assert,

Hate speech changes the brains of those hated for the worse, creating toxic stress, fear and distrust — all physical, all in one’s neural circuitry active every day. This internal harm can be even more severe than an attack with a fist. It imposes on the freedom to think and therefore act free of fear, threats, and distrust. It imposes on one’s ability to think and act  like a fully free citizen . . .

Censorship advocates who call for a balance of utility of free speech against the harm it causes hit the nail right on the head. Yet, the Supreme Court responds to this argument by stating that, “[t]he First Amendment Right to Free Speech does not extend only to speech that would survive a balancing test of social costs and benefits.” As an advocate of freedom of expression, I can’t say I disagree wholly with the Supreme Court’s response. However, because hate speech restricts the freedom of others, any benefit of continuing to allow its protection is far outweighed by its cost.

As the Declaration of Independence states, “[w]e hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” Freedom is the most precious benefit of being a citizen of the United States. The Bill of Rights promises to protect certain freedoms for all citizens, especially the cherished rights of expression enshrined in the First Amendment. However, where the amendment is construed so far as to protect hate speech that restricts the freedom of others through neurological and emotional harm, it rejects the very purpose of its creation. Therefore, to preserve the very freedoms that the Constitution promises to protect, hate speech should not be protected as free speech.


[1] R. A. V. v. St. Paul, 505 U.S. 377, 389 112 S. Ct. 2538 (1992).
[2] Snyder v. Phelps, 562 U.S. 443, 448 (2011).

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