The First Amendment of the United States Constitution grants U.S. citizens five main freedoms. Citizens have the right to have freedom of speech, freedom to practice any religion, freedom of the press, freedom to petition the government for a redress of grievances, and the freedom to assemble in a peaceful manner. Of these five freedoms, the freedom of speech seems to face the most scrutiny because the Public has different opinions about what should and should not be openly expressed, especially regarding hate speech. The Ku Klux Klan and the Westboro Baptist Church are two groups that have been brought to court for allegedly violating the First Amendment due to hate speech. Additionally, there was an incident that took place at St. John’s University which involved hate speech as well. Although each situation consisted of different variables which made the outcomes different, hate speech should be protected by the First Amendment of the United States Constitution because the government cannot criminalize people for being offensive or for having beliefs others might find distasteful.
Hate speech occurs when there is an expression of hatred towards an individual or a group of people; this usually consists of the usage of derogatory language or forms of discrimination that would be offensive to the receiver. It “is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits (“Debating Hate Speech”).” The battle between hate speech and our First Amendment rights have been a constant controversy in many court cases. It is important to realize that hate speech is indeed protected by the First Amendment. The United States has no legal boundaries for hate speech, similarly to not having laws in place for rudeness, evil ideas, unpatriotic speech or any other speech others might strongly disagree with. Anyone who uses hate speech may face consequences only if their speech incites imminent criminal activity (“Hate Speech and Hate Crime”).
What are some examples of hate speech? Hate speech can come in different forms, such as verbal and nonverbal. Some examples of hate speech are creating a racist cartoon for a flyer, using racial or other derogatory slurs to describe an individual or a group of people, holding anti-gay protests, or spray painting anti-Semitic symbols on a synagogue (“What Is Hate Speech?”). Of course, hate speech is not limited to these examples. The United States has held many court hearings to determine if cases are merely instances of freedom of expression or if they are examples of genuine criminal activity.
The Ku Klux Klan is a group who is notorious for advocating white supremacy by terrorizing other groups of people, specifically black people, who do not fit their supremacist agenda. One of the more well-known court cases involving the Klan is the Brandenburg v. Ohio, 395 U.S. 444 (1969) case. Clarence Brandenburg was their leader in 1967 and he formed a rally with his members to be aired on a local news station. The rally took place in Cincinnati, Ohio, where the news station filmed the Klan participating in a heinous display of hate speech and racist demonstrations. Brandenburg was arrested and brought to court because he formed, participated in, and asked a news station to record the rally. “He claimed that his rights as an American citizen were violated when he was arrested and that he was unjustly punished for non-violent and non-criminal expressions (“Brandenburg v. Ohio”)” Ohio declared his actions were unlawful but Brandenburg appealed the charges and argued that he was protected under the First Amendment. In the final verdict, The United States Supreme Court ruled in favor of Clarence Brandenburg. The decision concluded that there were no violent acts that took place and there was no one in close proximity to the rally to be in immediate danger. Essentially, since there were no true threats and no one was in danger, the Ku Klux Klan rally was only an act of freedom of expression (“Brandenburg v. Ohio”).
Although the Ku Klux Klan had their First Amendment rights protected, it must be made clear that hate speech can be seen differently when it is used by students. There have been numerous incidences in the media regarding students discriminating their students because of their race, religion or sexual orientation. Many of these battles have unfortunately ended with students committing suicide due to bullying. Why is school the only place hate speech is not protected by the First Amendment? “Education institutions have a sole purpose to educate and do not condone any form of violence or discrimination. Hate speech is prohibited on campuses because it interferes with the educational environment of the students. Such codes of conduct may prohibit speech that would be seen as intimidating, hostile or offensive (“Speech on Campus”).” Students generally have fewer rights regarding free speech while they are in school, but this is because they are there to learn and not judge their peers. Schools try to foster an environment that is welcoming to people from all walks of life. It is important for colleges to find a balance between making sure students are constitutionally protected to allow free speech but to also ensure that there is social order. To maintain social order and a safe environment for everyone, college campuses have to be able to motivate students to learn about other perspectives that may be different than what they are used to. Students should be able to speak their mind and also have their ideas challenged respectfully. This helps to deter students from using offensive or derogatory hate speech, which might provoke someone to feel or be physically or verbally assaulted (Thorgersen, “Limiting Free Speech”). Any educational institution has codes of conduct in place to help aid students to become upstanding citizens. Having policies against hate speech or other forms of discrimination teaches students how to properly interact with others who may not look like them or share their same beliefs. Schools restrict freedom of speech in order to protect students within the institution for the safety of the physical and psychological well being of the students.
One may be wondering, when does hate speech become a crime? The answer is quite simple; hate speech becomes unlawful when it involves a hate crime. Hate crimes are defined as “acts of physical harm and specific criminal threats motivated by animus based on race, color, national origin, religion, gender, sexual orientation, gender identity, or disability (“Hate Crimes”).” Hate speech can also become criminal behavior when the perpetrator uses true threats or fighting words. Fighting words can involve hate speech, which creates an imminent breach of peace and true threats put someone in fear of physical injury. One example of hate speech occurred on St. John’s University campus, which escalated to what became a hate crime. These victims were Sierra Leonean and Nigerian students and they were both harassed and stalked by Caucasian students. The harassments involved calling the victims “gorillas” and threatened to “serve their a** on a silver platter”. The Caucasian students were expelled due to their actions and speech violating St. John’s University’s student code of conduct regarding discrimination and harassment. This is an example of those who have created a breach of peace and threatened others based on their skin color and ethnic background. If this situation did not occur on a college campus, the stalking, harassment, true threats, and fighting words would consequently be considered criminal activity. All in all, hate speech becomes criminal only when it puts someone in immediate danger.
Snyder v. Phelps, 562 U.S. 443 (2011) is the court case involving the Westboro Baptist Church. Fred Phelps and his followers would travel across the country to promote their distaste for homosexuality in the United States. They did this by going to funerals of soldiers, who were homosexuals, with signs that said things such as “Thank God for 9/11” and “Thank God for dead soldiers”. Albert Snyder is the father of Lance Corpal Matthew Snyder, a soldier who was killed in Iraq in 2006. Since Matthew was a homosexual, the Westboro Baptist Church went to Matthew Snyder’s funeral with their picket signs. Albert Snyder sued Phelps and his church for severe emotional distress. By definition, this is a case of hate speech but Phelps argued that his actions are protected by the First Amendment. Phelps won this case because most of his signs addressed broad issues, which were not specific to the Snyder family. The courts described the themes of the signs as public issues and since they were on public property with no direct affiliation with the Snyder family, Phelps and his followers won this case (“Snyder v. Phelps”). Indeed, this display of hate speech was protected under the First Amendment.
Under the circumstances of the cases provided, it is evident why hate speech should be protected in some cases and not protected in others. On one hand, hate speech that threatens the safety of citizens is not protected under the First Amendment. On the other hand, it is valid to say that any speech that does not harm or endanger anyone is permissible. One of the positive reasons why hate speech should be protected by the first amendment is because it gives the public the right to have opinions, even if their opinions are offensive. Even though individuals might feel uncomfortable, this type of speech needs to be protected by the First Amendment. If someone is not able to fully express themselves through their opinions, it is a form of government censorship. In contrast, protecting hate speech can create a domino effect for other undesirable events. For instance, anti-gay rallies can influence others to commit hate crimes since these rallies nurture their hate for homosexuals. The rallies are considered hate speech but at the same time, they display freedom of speech and are therefore protected under the First Amendment. The hate crimes that manifest from these rallies can lead people to target homosexuals and commit homicide or can cause the victims of these crimes to commit suicide. While there are pros and cons of protecting hate speech, in any case, it is not the responsibility of the government to monitor, regulate or protect the feelings and emotions of individuals who may be offended by the words someone has uttered.
To understand why hate speech is protected by the First Amendment, it is important to know the true purpose of our nation’s right to have freedom of speech. Freedom of speech gives citizens the right to be able to criticize or form opinions about others or our government, whether it be positive or negative. Citizens have the right to speak without their words being censored. Moreover, this freedom grants protection to those who are vocal about having different beliefs or values. This includes people who may be racist, homophobic, or xenophobic to name a few. The government cannot interfere with our private beliefs, even if they are disagreeable. The government is only concerned when speech interferes with the welfare and safety of society. With all things considered, hate speech should remain protected by the First Amendment of the U.S Constitution.