Yes, hate speech is constitutionally protected

Author Salman Rushdie, still recovering from the latest assassination attempt, once said freedom of speech must include “the freedom to offend” or “it ceases to exist.” Rushdie has risked his very life to support that principle after being put under a death threat by Iran’s then-Supreme Leader Ayatollah Ruhollah Khomeini in 1989 for allegedly insulting Islam.

Recently, when Secretary of State Antony Blinken responded to the attack on Rushdie, he notably attacked the role of hate speech as one of “the pernicious forces that seek to undermine these rights.” It was a curious spin. Rushdie has fought limitations on speech and was himself accused of a type of hate speech toward Islam. Due to his alleged blasphemy, his accusers declared not just his right to speech but his right to life as forfeit.

The use of Rushdie to further calls to curtail hate speech may be bizarre but it is not surprising. There is a concerted effort by the Biden administration and many Democrats to censor anything deemed hateful on the internet and social media.

That was evident at the start of a recent House hearing on the government’s role in censoring citizens on social media. As one of the witnesses, I was taken aback by the opening statement of the committee’s ranking Democrat, Del. Stacey Plaskett (D-V.I.). Besides opposing an investigation into the role of the FBI and other agencies in such censorship, Plaskett declared that “I hope that [all members] recognize that there is speech that is not constitutionally protected,” and then referenced hate speech as an example.

Hate speech is indeed a scourge in our nation, but it is also protected under our Constitution. Yet many politicians and pundits are using this false constitutional claim to defend potentially unconstitutional actions by the government.

Recently, Sen. Ben Cardin (D-Md.), who is a lawyer, said that “if you espouse hate … you’re not protected under the First Amendment.” Former Democratic presidential candidate Howard Dean declared the identical position: “Hate speech is not protected by the First Amendment.”

Even some dictionaries now espouse this false premise, defining “hate speech” as “Speech not protected by the First Amendment, because it is intended to foster hatred against individuals or groups based on race, religion, gender, sexual preference, place of national origin, or other improper classification.”

It is not an argument that improves with repetition. Yet, there have been calls to ban hate speech for years. Even former journalist and Obama State Department official Richard Stengel has insisted that while “the First Amendment protects the ‘thought that we hate’ … it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw.”

Actually, It is not a design flaw but the very essence of the Framers’ design.

The First Amendment does not distinguish between types of speech, clearly stating: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

While the Supreme Court has allowed limited exceptions, it does not bestow on the government the open right to strip protection of speech because it is deemed “hateful.” Indeed, in Brandenburg v. Ohio, a 1969 case involving “violent speech,” the court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the Ku Klux Klan to speak out, even though it is a hateful organization. Likewise, in RAV v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” In Snyder v. Phelps, also in 2011, the court said the hateful protests of Westboro Baptist Church were protected.

Courts have long held the line against efforts to ban hate speech, as one did in 1995 by striking down Stanford’s hate-speech ban. Courts have long rejected such labels as excuses for sanctioning speech. In 1928, a man was convicted for blasphemy in Little Rock, Ark., after putting a poster in a shop window reading “Evolution is true.” Many also thought that message was harmful.

More recently, a federal court enjoined a New York effort to ban “hateful conduct” on social media. In Volokh v. James, U.S. District Judge Andrew Carter Jr. granted a preliminary injunction on the basis that “the Hateful Conduct Law” is blatantly unconstitutional, which it most certainly is. The law defined “hateful conduct” as “the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression” [N.Y. Gen. Bus. Law § 394-ccc(1)(a)].

He wrote that “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

The work of conscientious judges like Carter ordinarily blunts the impact of false constitutional claims, even when widely held. But this myth is now being used to justify a wide array of censorship. It is the very type of “disinformation” that many Democrats love to cite as the basis for silencing others.

Social media companies have used “hate speech” to justify censorship of opposing views. LinkedIn reportedly has added its company name to this ignoble effort, according to an Air Force veteran whose account was disabled after criticizing calls for loan forgiveness. The site reportedly declared that opposing the Democratic plan for loan forgiveness is “hate speech.” TikTok labeled as hate speech a video supporting Kyle Rittenhouse, acquitted of killing protesters in Kenosha, Wis., in 2020. The video discussed the effort by Arizona State University students to ban Rittenhouse from campus.

The hate-speech designation is often used to justify punishing or silencing opposing views. When Michigan football head coach Jim Harbaugh recently made a pro-life comment, it was declared hate speech by some, and there were calls for his termination. By labeling some views as “hateful,” social media companies claim full license to silence opposing views.

In a chilling statement before a recent House hearing, former Twitter executive Anika Collier Navaroli was asked about the standard of censorship by Rep. Melanie Stansbury (D-N.M.) and explained that Twitter tries not to just balance “free speech versus safety.” Rather, it would ask “free speech for whom and public safety for whom. So whose free expression are we protecting at the expense of whose safety and whose safety are we willing to allow to go the winds so that people can speak freely.” Rep. Stansbury responded: “Exactly.”

So, by declaring speech harmful or hateful, these companies can make “nuanced” choices as to who should be allowed to speak.

The repetition of such false claims on hate speech being unprotected has had its impact; polls show almost half of college students believe hate speech is not constitutionally protected. But it is particularly chilling for one of the nation’s most powerful politicians, sworn to “support and defend the Constitution,” to show either a lack of knowledge or lack of fealty to the First Amendment.

Hating hate speech is no vice — but it is also no license for censorship.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.