by Jodi L. Miller
In the United States, Americans value the right to free speech. It is the foundation of our fundamental rights, provided for in the First Amendment to the U.S. Constitution. The amendment states: “Congress shall make no law…abridging the freedom of speech…”
There are some that have a misconception that hate speech is not protected by the First Amendment and can be criminally prosecuted. Other countries, such as Australia, Canada, Denmark, France, Germany and the United Kingdom, to name a few, restrict speech and have laws on the books that criminalize hate speech. The U.S. has no such law.
According to Bernard W. Bell, a professor at Rutgers Law School in Newark and a constitutional law expert, “freedom of speech” is a constitutionally recognized term—”hate speech” is not. Both, however, are protected under the First Amendment.
“Hate speech is an imprecise and hard to define term. It covers speech that expresses hate for others, often because of their membership in a group or because they share a similar characteristic,” Professor Bell says. “The Free Speech Clause in the First Amendment does not allow government to punish speech merely because the government, or those to whom speech is directed, consider the speech either offensive or an expression of hate.”
While the First Amendment offers some protection, Professor Bell notes that not all hate speech is constitutionally protected. For example, if the speech in question is in the form of a “threat” that puts the object of the hate in fear, or if the speech incites others to harm members of the group that is being targeted by hate, it is not protected speech.
“Racial insults, one form of hate speech, can also be prohibited under the U.S. Supreme Court’s ‘fighting words’ doctrine,” Professor Bell says. “Fighting words are ‘personally abusive epithets inherently likely to provoke violent reaction’—racial slurs can be one example.”
The fighting words doctrine comes from the 1942 U.S. Supreme Court case of Chaplinsky v. New Hampshire. The Court defined fighting words as those words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Court said that “such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Not protected
According to Professor Bell, First Amendment law developed at the U.S. Supreme Court in the early 20th Century with the prosecutions of anarchists and communists during World War I. The first free speech case decided at the U.S. Supreme Court was Schenck v. United States in March 1919.
The case involved Charles Schenck and Elizabeth Baer, socialists who were distributing leaflets during World War I. The leaflets urged Americans to disobey the draft through peaceful action. Schenck and Baer were charged with conspiracy to violate the Espionage Act of 1917 by obstructing military recruitment. Both were convicted and appealed their conviction to the U.S. Supreme Court on the grounds that the law violated their First Amendment right to free speech.
The Court issued a unanimous decision that the Espionage Act did not violate the First Amendment and was an appropriate use of Congress’ wartime authority. This is the case that established the “clear and present danger test.” The decision stated that speech can be limited if the words create a “clear and present danger” of causing harm. In the Schenck case, the harm was upsetting the war effort.
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” Justice Oliver Wendell Holmes Jr. wrote in the Court’s majority opinion.
Eventually, the “clear and present danger” test was seen as too broad, and Professor Bell notes that it is no longer used.
In October 1919, the U.S. Supreme Court issued another free speech ruling in the case of Abrams v. United States. In 1918, a group of Russian immigrants, including Jacob Abrams, distributed leaflets in New York City. The leaflets criticized America’s involvement in the war and called for strikes at munitions plants. Abrams and the others distributing leaflets were convicted under the Espionage Act. Abrams appealed the conviction all the way to the U.S. Supreme Court, claiming the Espionage Act violates the Free Speech Clause of the First Amendment.
In a 7-2 ruling, the Court held, as it had in Schenck, that free speech protection is lower during war time and that the defendants had violated the Espionage Act. They were sentenced to 20 years in prison.
Just eight months after writing the majority opinion in Schenck, Justice Holmes wrote what has been called “the Great Dissent” in the Abrams case, setting in motion modern-day legal scholarship in First Amendment law concerning free speech.
“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate,” Justice Holmes wrote in his dissenting opinion.
Current standard
Professor Bell says that the standard used today for punishing speech that incites violence was established with the 1969 U.S. Supreme Court case, Brandenburg v. Ohio. According to Professor Bell, the case determined that “speech can be punished for inciting violence against others only if it advocates serious ‘imminent lawless action’ and is likely to incite or produce such action.”
The case involved Clarence Brandenburg, a Ku Klux Klan leader who made a speech at a rally and was later convicted under an Ohio law that criminalized the advocation of “crimes, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing political reform.” During his speech, Brandenburg made disparaging, hateful remarks about African Americans as well as Jewish people. The U.S. Supreme Court was asked to decide whether the Ohio law violated Brandenburg’s right to free speech. The Court found that it did.
Professor Bell explains that under Brandenburg, the Court said that in order for a speaker to be punished, the speech must not merely be a theoretical discussion of the need to engage in violence or the inevitability of violence to overthrow of the government.
“It must advocate immediate use of violence and must be uttered in a context where such violence is likely,” Professor Bell says. “Speech short of that is constitutionally protected.”
Protecting speech we hate
A more recent U.S. Supreme Court ruling on hate speech came in 2011 with the case of Snyder v. Phelps. Fred Phelps, the now-deceased leader of the Westboro Baptist Church, believed that God punishes the U.S. for its tolerance of gay people in the military and often picketed, along with his followers, at the funerals of soldiers. They would hold signs with hateful messages and shout those messages as well. Albert Snyder, whose son Lance Corporal Matthew Snyder was killed in Iraq, sued Phelps and the Westboro Baptist Church after they picketed his son’s funeral. The Court sided with Phelps and the church in an 8-1 decision.
“Such speech cannot be restricted simply because it is upsetting or arouses contempt,” Chief Justice John Roberts wrote in the Court’s majority opinion. “If there is a bedrock principle underlying the First Amendment it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Chief Justice Roberts called the signs “particularly hurtful” but noted that the picketing was in a public area.
“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,” the Chief Justice wrote. “On the facts before us, we cannot react to that path 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.”
Carving exceptions
In addition to the exceptions for fighting words and the incitement to imminent lawless action, the U.S. Supreme Court has carved out other free speech exceptions over the years, such as for defamation, obscenity and fraud. So, why not an exception for hate speech?
“Every time I listen to a lawyer-trained representative saying we should criminalize free speech in some way, I think to myself, ‘that law school failed,’” U.S. Supreme Court Justice Sonia Sotomayor said in a speech at New York Law School in September 2025.
“Recognizing hate speech as an exception to the First Amendment would dramatically expand permissible restrictions on free speech,” Professor Bell says. “A wide range of speech, in terms of political discussions and in terms of personal interactions, might be subject to punishment by the government.”
Professor Bell points out that carving out a hate speech exception would be hard as there is a lot of speech that could be viewed as hateful. It would be hard to determine how broadly or narrowly to define hate speech.
“How could any such definition be made sufficiently precise for individuals to know in advance what is considered hate speech—to give them fair warning of what speech is punishable?” Professor Bell says. “And would we have to know what was in someone’s mind, in terms of the animosity toward some group when a person speaks words we consider hate speech? Would that be necessary to make hate speech uttered by a specific individual punishable? That’s a problem; a person’s intentions are often hard to determine.”
Discussion Questions
- What do you think America would be like without the right to free speech? Explain your answer in detail.
- Examine the Court’s rulings in Schenck v. United States, Brandenburg v. Ohio and Snyder v. Phelps as described in the above article or do more research on your own. Select one of the cases and explain why you agree or disagree with the U.S. Supreme Court’s decision in the case.
- Do you think that protection of free speech should be lower during times of war? Why or why not?
Glossary Words
anarchist—someone who tries to bring about disorder by not recognizing authority.
appealed—when a decision from a lower court is reviewed by a higher court.
communist—someone who advocates for communism, which is a political ideology that seeks a classless society, abolishing private property rights.
defendant—in a legal case, the person accused of civil wrongdoing or a criminal act.
dissenting opinion—a statement written by a judge or justice that disagrees with the opinion reached by the majority of his or her colleagues.
epithet—a word or phrase meant to demean someone.
majority opinion—a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
socialist—someone who advocates for socialism, which is a political and economic system where industries such as energy, transportation and finance, are publicly owned.