• Hate speech is not a legal term in the U.S. although the idea does seem to have some legal significance in other nations.
• The First Amendment is a limitation on government restraints on speech, which means that offensive speech can be treated differently in various scenarios.
• The Supreme Court has recognized very narrow limits on what counts as unprotected speech.

​Following recent events and calls to ban hate speech in America, many have misunderstood whether it’s protected speech under the Constitution. Below, we ask Sutherland’s constitutional law and religious freedom fellow, Bill Duncan, to explain the legal reasoning behind the protection of hate speech.

The Likely Voter: What is hate speech? Is it defined at all in federal law, or in federal case law from the U.S. Supreme Court? Is it “protected?”

Bill Duncan:

Hate speech is not a legal term in the U.S. although the idea does seem to have some legal significance in other nations. Some of the things labeled hate speech probably deserve the label while some just reflect disagreement with an opinion. There are some types of expression, like obscenity or specific threats, that are not considered protected speech, but the U.S. Supreme Court has interpreted these exceptions very narrowly, so efforts to punish even clearly offensive comments are unlikely to succeed.

The Likely Voter: Has the Supreme Court ever ruled directly on hate speech laws?

Bill Duncan: 

Yes, in 1991, the Court struck down a city ordinance which punished the use of symbols reflecting racial or other bias. The conduct the defendant was charged with, burning a cross, was clearly reprehensible but a unanimous Court said the government could not punish one type of opinion while allowing another. In 2017, the Court unanimously found that a federal trademark law that prohibited “disparaging” trademarks violated the First Amendment.

The Likely Voter: Does the First Amendment protect hate speech in the workplace, on social media, on college campuses, or within private organizations?

Bill Duncan:

The First Amendment is a limitation on government restraints on speech, which means that offensive speech can be treated differently in various scenarios. Private organizations are typically free to limit what employees or members say. Similarly, social media outlets can enforce restrictions on how their platforms are used. The same principle would apply to private employers. An employee who is fired for saying their company’s product is no good or for unkind comments to co-workers doesn’t typically have a free speech claim. Universities are in a different position because many are public and so must observe First Amendment limitations. That does not mean campuses have to allow anything. It’s common to say that reasonable time, place and manner limitations on speech are allowed. So, universities can prevent disruptions of class or campus events, but they cannot allow some viewpoints and not others.

A challenging situation might occur where the government leans on a private employer to stop certain speech as was recently alleged to have occurred with Jimmy Kimmel. That scenario could raise a First Amendment concern.

The Likely Voter: When does hate speech cross the line into unprotected speech, like incitement to violence or threats?

Bill Duncan:

The Supreme Court has recognized very narrow limits on what counts as unprotected speech. Encouraging someone to commit a crime or making a very specific threat are not protected. The attorney general’s recent comments suggesting the government might punish “hate speech” might have been referring to these types of situations. It’s important to remember that these exceptions are narrow. The Court has extended free speech protection even to generalized threats.

The Likely Voter: In your opinion, how do hate speech debates connect to broader fights over “cancel culture” or “free speech”?

Bill Duncan:

The assassination of Charlie Kirk has raised these issues in a very pressing way because it appears the alleged shooter justified the crime in his own mind as a way of responding to what he perceived as hateful speech. In addition to the inflation of disagreement into “hate,” some of the horrifying responses to the killing raise other questions. When is it appropriate for people to lose their jobs or be stigmatized because of the opinions they expressed in the wake of the murder? The comments, however reprehensible, are probably protected speech. That does not mean, however, that the speakers can avoid all consequences for what they say. It’s typically not illegal for an employer to fire someone if their public comments bring unwanted attention to the business. This doesn’t necessarily mean the employee is being “canceled.” It is one thing for someone to be fired or hounded for signing a petition, making a political donation, or expressing an opinion, but something else entirely for a school to let a teacher go for making a public statement in favor of a murder.

For a more in-depth perspective on this article, read our Insights piece.