Eugene Volokh: No, there’s no “hate speech” exception to the First Amendment

I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?”

But there is no hate speech exception to the First Amendment.

Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.

One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.

To be sure, there are some kinds of speech that are unprotected by the First Amendment.

But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term.

For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements.

Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.

(And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of)…

  • Drunk_by_Noon

    “Hate speech”, like “racism” is just another made up charge that was not in any public discourse 70-years ago.
    It’s as organic to legitimate discourse as AstroTurf and plastic flowers.

    • Leftist use any method to control what is said.

      “Hate speech” codes have been quite effective.

      Push-back is long overdue.

    • tom_billesley

      Criminalising “Hate Thought” is an ambition of progressives, as in Miliband’s election campaign promise to make islamophobia a crime.

    • Alain

      The fruit of cultural marxism no less.

  • Gary

    Where are all the Leftist progressives and gay groups that endorsed the Piss-Christ display in the Arts centre in New York that said it was Free-speech.
    Did all these brave gay males go back to wearing a dress and now hide in the closet from islam?????

    Typical liberalism and the Soft Bigotry to tolerate violence and terrorism by muslims as if they aren’t fully human yet.

  • Petey

    how does not work in Canada? We have no Constitution or Bill of Rights but hate speech is recognized here. What are our rights in terms of free speech then?

    • tom_billesley

      The 1689 Bill of Rights is still in effect in Canada but it protects free speech only in parliament.

    • Drunk_by_Noon

      I think that means you don’t have any.

  • WalterBannon

    Everything the “progressives” say is hate speech as far as I am concerned, so lets round up all progressives and put them in re-education death camps of tolerance.