The Constitution guarantees us free speech. It is, in an “originalist” sense, very clear. It didn’t say we guarantee free speech unless …
Is hate speech free speech? It is speech.
I think we should err on the side of free speech. Free speech, while potentially offensive, is still our right. You have the right to offend me. As a lover of liberty, I should defend your rights. You should defend mine. That is our obligation as free citizens.
The First Amendment, ratified December 15, 1791, states: “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.”
In 1969, the Supreme Court protected a Ku Klux Klan member’s racist speech and created the “imminent danger” test to permit hate speech. The court ruled in Brandenburg v. Ohio that; “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”
In 2011, the Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans. The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8-1 decision the court sided with Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of hate speech, so long as it doesn’t promote imminent violence. The Court explained, “speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of general interest and of value and concern to the public.”
So what do I make of this (below)? Not much.
Where will America draw its line in the sand? In some cases this speech never evolves beyond rhetoric, so we tolerate it for the sake of free speech, but increasingly the threat of violence looms just past the propaganda. We shake our heads at Ammon Bundy, many quick to make light of a dangerous situation so long as it doesn’t spill over into a deadly one. But in doing so, we are implicitly condoning the segregation of certain groups within the country and allowing influential figures to paint targets on groups that ideologically stand in their way. Then, when our televisions and newspapers are plastered with events like the Planned Parenthood shooting in Colorado (in which the gunman allegedly said “no more baby parts,” a reference to the debunked narrative that the organization was selling baby parts for profit), we need to look in the mirror and ask: at what point must we step in to prevent the needless deaths of innocent citizens?