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Does the First Amendment Really Protect Hate Speech? 

Does the First Amendment Really Protect Hate Speech? 

by Jake MacAulay

In this day and age, many believe that "hate speech" must be controlled or censored by someone or some group.  Unfortunately, due to the ignorance of so many  in our country, terms like “control” and “regulate” ipso facto refer to government control and government regulation.


Perhaps you are a constitutionally-minded individual who believes, like founding father Benjamin Franklin, that “freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.”


No matter what type of political, social, or religious views you may have, it is imperative you understand the government does not grant you free speech.  Our founders understood this and that is why “We the People” have delegated the authority to protect free speech to the government. 


This protection is found in the First Amendment to the U.S. Constitution, which protects “the freedom of speech” from infringement by the government. The drafters of the First Amendment carefully referred to it as “the” freedom of speech. This presupposed that free speech had a pre-political existence - an existence that God created; hence, it pre-existed the government that was prohibited from infringing upon it.


Eugene Volokh of the Washington Post wrote, “There are no hate speech exceptions to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn Capitalism or Socialism or Democrats or Republicans.”  


This is the final question to be asked: Is it permissible to say whatever I want without fear of ramifications?  




For example, someone may return your fire with speech that may be offensive or hurtful to your feelings and they have every right to do it.


To put a finer point on it, there are kinds of speech that are unprotected by the First Amendment.  Examples of these include: speech presenting clear and present danger to national security or public safety; speech soliciting crime or violence; or fighting words. But those narrow exceptions have nothing to do with “hate speech.”


Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it is illegal to make true threats and incite imminent crimes against anyone for any reason. 


Why? Because they imperil what God has determined to give to the individuals specifically being targeted, which is the protection of their individual life, liberty, and/or property. Because government is God’s minister for our good, it must fulfill its one and only purpose: to secure our God-given rights.


Speech is not force; it is merely opinion that needs no physical defense.  When speech transcends the bounds of opinion into physical instigation that is the point where the individual leaves off freedom, and government has a duty to protect the God-given rights of the individual(s) being threatened.