Why Hate Speech Should Be Protected by the First Amendment

Home S&S Opinion Why Hate Speech Should Be Protected by the First Amendment

By HEIDI JIN
Staff Writer

According to the definition given by Merriam-Webster, hate speech is a form of speech that expresses hatred of a particular group of people. 

From Charlottesville to the rise of racist and anti-semitic attacks in the U.S., hate speech has become one of the most controversial social and political topics. The question regarding whether the First Amendment should protect all types of speech regardless of the message or only those that will satisfy all interest groups still remains unresolved. Some might argue that an anti- hate speech law can define the boundaries of the First Amendment. However, such a law would  also deprive citizens of some of their rights to freedom of expression. In order to preserve the free flow of our marketplace of ideas, the government should not enforce any hate speech law that restricts citizens’ freedom of speech.

The most recent Supreme Court case that addressed hate speech was Matal v. Tam in 2017 in which the Court unanimously affirmed that the disparagement clause of the Lanham Act- which prohibited registration of trademarks that were offensive to any person, institution, religion, or national symbol- was unconstitutional under the First Amendment. According to Justice Anthony Kennedy, one reason that the justices all supported the legality of hate speech was that “ a  law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all” (Matal v. Tam). In other words,  public opinion should not be the factor that determines which types of speech should or should not be protected. Such a biased metric can diminish the protection under the First Amendment and lead to a society in which only opinions of the majority are taken into account. Government officials were elected by the majority to enact laws that favor the voters. If the citizens allow  the government to set boundaries on their freedom of speech, offensive unpopular opinions that fail to support the government will become illegal expressions of hate speech. And the opinions of the majority will gradually rule over the opinions of the minority. As a democratic society, we value the opinions of the minority and voices of opposition. And to ensure that everyone has the right to oppose and criticize the opinions of the majority, hate speech should not be prohibited.

Unlike other liberal democracies such as those in the European Union, the U.S. has no specific restrictions on the boundaries of freedom of speech (European Court of Human Rights). The European Union prohibited public speeches and publications of any material that offend a certain ethnicity or religion or pose a possible threat to national stability or democratic order. Such restrictions can not apply to the U.S. due to the diversity of the U.S. population. According to the U.S. Census Bureau, 13.4% of the entire U.S population is composed of African Americans, while only 1.8% of the British population has an African origin (GOV.UK). Since the minority ethnic groups in America have a relatively large percentage in the entire population, it is easier to accidentally offend a large group of people when delivering speeches. 

A survey conducted by the Knight Foundation and College Pulse on four thousand college students found that the majority of college students think that people are being offended too easily. As a nation with so many diverse interest groups, it is difficult not to offend anyone when expressing an opinion since people define “hate speech” differently due to their gender, religion, and ethnicity. The only way to maintain our marketplace of ideas is to preserve the wide range of protections under the First Amendment. 

Although freedom of speech is one of the foundations of our country, many citizens are starting to oppose it . A poll conducted by the Pew Research Center in 2015 found that forty percent of young Americans under the age of 35 think that the First Amendment is dangerous because it protects people’s freedom to offend others.  Hate speech may offend certain groups of people, but containing offensive messages cannot be the reason to undermine the protection under the First Amendment. A law that regulates hate speech can effectively reduce the impacts of hate speech, but as a side effect, the law may also forbid the expression of some unpopular opinions. When expressing disagreements against certain opinions, people may also deliver some offensive messages that accidentally insult their opponents. And as a hate speech law eliminates the possibility of offending others, it also forbids the expression of meaningful messages that comes along with the offensiveness.

People deserve to maintain their right to express their opinions despite the offensiveness of their language. Regulations of hate speech will diminish the protection under the First Amendment, thereby forbidding the expression of some meaningful opinions. Considering the importance of our marketplace of ideas, citizens’ right to freely express their opinions should be preserved.

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