On Shaky Ground: Reconsidering the Justifications for First Amendment Protection of Hate Speech

Abstract In the United States, hate speech is protected by the First Amendment. This approach differs from most other Western democracies, many of which have enacted criminal or civil laws to punish those who publicly incite hatred toward groups based on their fixed identity characteristics such as race or ethnicity. Traditionally, U.S. jurisprudence and legal scholarship have relied on several discrete theories to justify this approach. These include the marketplace of ideas, political self-governance, personal liberty, the bellwether argument, the safety valve argument, and the reverse enforcement argument. For decades, these theories have been cited as the reasons why the United States allows hate speech. But do they still hold water? Social norms are changing. More Americans are beginning to understand how systems of oppression have shaped our laws and institutions. Young people are more willing now than they've been in the past to accept limits on our right to free expression to promote an inclusive society that welcomes diverse groups. Given these shifting norms, this article asks whether and to what extent each of these theories remains a viable justification for protecting hate speech. The result of this analysis is a comprehensive picture of how these ideas operate in our modern social, political, and media environments. With this clear-eyed view, we can more accurately weigh the potential benefits and drawbacks of our collective decision to protect hate speech in the United States.