Hate Speech Is Not Free: The Case Against First Amendment Protection

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction.

Debate over the extent of First Amendment protection is based on two bodies of law--the practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. In Hate Speech is Not Free: The Case Against Constitutional Protection, W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect.

Within the Supreme Court's established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Court's cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

Wat Hopkins is an emeritus professor of communication at Virginia Tech where he taught communication law and cyberspace law. He has written widely on issues related to freedom of expression and is former editor of the journal Communication Law and Policy. He has received the Distinguished Service Award from the Law and Policy Division of the Association for Education in Journalism and Mass Communication and the AEJMC Dorothy Bowles Award for Public Service.