Law Quarterly

Hate Speech and Charlottesville

By Tara Andryshak


One of the most widely misunderstood aspects of the United States Constitution is one of the most well-known clauses: freedom of speech. While most people understand that speech is protected under the First Amendment of the Constitution, they do not understand that hate speech is also protected under the First Amendment. Most people assume that when speech is targeted, hurtful, or morally wrong it is unconstitutional and therefore illegal, this misconception is easily seen through social media. After the Charlottesville protests, many people took to Twitter or Facebook to declare that the white-supremacists should be arrested for their speech alone. However, it has been shown through various Supreme Court cases that hate speech, including symbolic hate speech, is in fact protected and constitutional.

The 1969 Supreme Court Case, Bradenburg v. Ohio, ruled that an Ohio law restricting free speech, even when hateful, was unconstitutional. Clarence Bradenburg, a Ku Klux Klan member, publicly spoke about white-supremacism while using offensive racial and religious slurs. He was then arrested for violating an Ohio law that restricted speech promoting violence, sabotage, or crime. Many might agree that this was the moral action to take and that Bradenburg deserved the arrest on account of what he was promoting and his hurtful rhetoric. While both of these reasons can be seen as valid, they did not hold up in the Supreme Court. The court ruled the Ohio law that led to Bradenburg’s arrest was unconstitutional and declared that the law considered only whether the speech was directed at inciting lawless actions, not whether there was any real threat of the actions being carried out. Thus, the law restricted freedom of speech, even though his speech could be considered hateful.

A second Supreme Court case worth noting is Tinker v. Des Moines Independent Community School District (1969), where a group of students decided to wear a black arm-band in protest of the Vietnam War, a form of symbolic protest. The principals of the school, once they heard about the plan, created a policy that would suspend any student who refused to take off their arm band. The Supreme Court needed to decide whether prohibiting the wearing of an arm band in support of the Vietnam war denied the students their right to freedom of speech. The court ruled that this form of speech was symbolic speech and was in fact protected under the First Amendment. They also ruled that the students did not lose their Constitutional rights when they stepped on school property, so the school was wrong in taking that right to free speech away from them. The only way the school could have taken away the students’ rights to free speech was if the arm bands disrupted the normal activity of the school, or if they caused any sort of violence. Many people might not have an opinion on this case today since they were not even alive during the Vietnam War; however, if the black arm bands were replaced with swastikas, it could create an entirely different reaction. The same rule would apply, however: swastikas are a form of symbolic speech protected under the First Amendment.

The misconception of hate speech stems from a lack of knowledge of cases such as these. It was common after hearing about the events in Charlottesville this past summer to believe that the white-supremacists should have been arrested because their speech and dress were unconstitutional. Many people believe that chanting racial slurs and wearing swastikas could negatively impact people in society, and thus should be deemed illegal. However, the truth is that hate speech, whether it is symbolic or not, is protected and allowed under the First Amendment. The protesters in Charlottesville had just as much of a right to voice their opinion as the counter protesters did. Just because one view might be seen as morally acceptable and the other despicable does not make a difference, they are both considered constitutional and cannot be taken away.

Can hate speech ever be restricted? There are few cases where speech actually can be restricted per interpretation of the Constitution. ‘Fighting words,’ for example, are not protected by the First Amendment. This refers to speech directed at a specific person aimed at creating violence. If someone is speaking in a way that encourages violence, it is unconstitutional. That is not to say that the message itself is unconstitutional, just the fact that it is promoting and instigating violence. In the case of Charlottesville, not only could the white-supremacists have been arrested for violence-promoting speech, but so could the counter-protesters. In a democratic society like ours, everyone is supposed to be equal under, and subjected to, the same law whether they are a Neo-Nazi, a Jewish person, a Ku Klux Klan member, or a person of color.

Although it is legal to partake in hate speech, that does not make it moral. However, since nothing can be done in a legal sense to persons who engage in hate speech, what can be done is efforts to deter these actions. Educating the public, from young students in school to governmental officials, on equality and acceptance can have a huge impact on stopping hate speech.

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