Contrary to the title of this post, there is no hate speech exception to the First Amendment.
There is no “hate speech” exception to the First Amendment. So, many Americans wonder, “is hate speech legal?”
Contrary to a common misconception, most expression one might identify as “hate speech” is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government — including public colleges and universities.
The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish “hate speech.” Instead, the Court has come to identify within the First Amendment a broad guarantee of “freedom for the thought that we hate,” as Justice Oliver Wendell Holmes described the concept in a 1929 dissent. In a 2011 ruling, Chief Justice John Roberts described our national commitment to protecting “hate speech” in order to preserve a robust democratic dialogue:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.
In other words, the First Amendment recognizes that the government cannot regulate “hate speech” without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away.
