In today’s tense political climate, the phrase “hate speech” has been heavily used by many people, regardless of where they fall on the political spectrum, to describe speech that is offensive, discriminatory, racist, sexist, bigoted, or violent.  

People on the right accuse people on the left of espousing “hate speech” and vice versa, arguing that such speech is not protected by the First Amendment and thus should be prohibited.  

However, this argument is technically incorrect.  In order to understand why, we must unpack some of the nuances of the First Amendment.

First, “hate speech” is generally protected under the umbrella of the First Amendment. Our right to free speech is incredibly broad.  We are allowed to say almost anything we want without fear of punishment or retaliation from the government.  We are free to be racists, sexists, and bigots.  Slurs, derogatory names, conspiracy theories, wishing harm on others, and supporting violence are all protected by the First Amendment.

While we may disagree with such speech, our moral convictions or sensibilities, individually and as a society, generally do not serve as a basis for silencing speech that offends us.  

However, while our right to free speech is broad, it certainly is not absolute. Though limited, there are exceptions to the First Amendment and some speech is simply not protected.  Obscenity, child pornography, and true threats are some examples.  

For purposes of the First Amendment, obscenity is more than crude material that polite society would consider offensive. It’s much more than the F-word.  Obscene speech that is not protected has to reach a level where an average person applying today’s community standards would find the material to be indecent in a patently offensive way and lacking any serious literary, artistic, political, or scientific value. Child pornography, which is anything that visually depicts sexual conduct by children, is not protected under any circumstances, even if it does not meet the standards to be considered obscene.  

The true threats, or “fighting words,” exception to the First Amendment is most relevant to our analysis of “hate speech.” True threats are threats that are meant to incite immediate violence, lawlessness, or breach of the peace.  The standard is high and the focus is on the immediacy of the harm in a particular circumstance, whether the speech creates a clear and present danger.

For example, if I am giving a speech at a protest and I encourage the crowd to kill someone who is 100 miles away, that speech is likely protected because it is unlikely that the crowd will immediately act on what I said.  However, if in that same scenario I tell people to kill someone who is in the crowd, that speech is most likely not protected because I have created a situation of immediate danger and it is now a true threat.  So even though “hate speech” is generally protected, it is not protected if it amounts to true threats.  

Furthermore, even protected “hate speech” can be restricted in certain circumstances.  The government may limit the content of our speech only if the limitation serves a compelling interest and is the least restrictive way to achieve that interest. For example, the government may forbid a person from publishing classified information about national security.

The government must meet this same high standard if it seeks to restrict free speech in public places, meaning the government may not prohibit protesters from demonstrating in public simply because the government does not agree with the message.  But, the government may regulate the time, place, and manner of expression in public spaces, as long as the rules are applied equally to everyone.  

For example, it was clear that Boston city officials were not thrilled with having the Free Speech rally on Boston Common on August 19, 2017.  The city could have argued that the threat of violence erupting at the protest was a compelling enough interest to ban the protest.  However, prohibiting the protest would not have been the least restrictive means for preventing the potential violence.  

Instead, the least restrictive means was to allow the protest but regulate the time, place, and manner, which is exactly what the city did.  Protesters were free to use whatever “hate speech” they wanted during the demonstration, as long as it did not amount to true threats, happened between 12 p.m. and 2 p.m., and stayed within the barricades erected by the police department.

In short, the argument that “hate speech” is not free speech is incorrect.  The correct argument is that “hate speech” is free speech as long as it does not fall into any exceptions or violate validly imposed regulations.  At the end of the day, protecting all speech including “hate speech” is necessary. Suppression of any speech threatens to weaken the First Amendment for all of us.  So while we may disagree with the content of what someone is saying, acknowledging their right to say it is an act of self-preservation.

Note: I did not discuss defamation here, which is technically another exception to the First Amendment and not protected. Given the frequency in which defamation is accused in Worcester politics and given how complicated the legal analysis is, an entire article on the topic is warranted and will be forthcoming in the near future.  Stay tuned.  

About AiVi Nguyen

AiVi is a business attorney with a focus on business and employment litigation. She is a partner at the law firm of Bowditch & Dewey, LLP. AiVi was raised in Worcester, graduating from Holy Name Central Catholic, and she returned to the city after graduating from University of Pennsylvania and Boston College Law School. AiVi is passionate about Worcester and dedicates much of her free time and energy to local boards and committees, serving as a director of the United Way of Central Massachusetts and a member of the City's Diversity and Inclusion Advisory Committee, among others.

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