Media Law for the Real World: Hate Speech
Why the Constitution protects even the most offensive expression — and why that protection matters for democracy.
The First Amendment Regulates Power, Not Morality
Few concepts are more misunderstood in First Amendment law than “hate speech.” Many people assume that if speech is offensive, hateful, or morally repugnant, it must also be illegal. But the First Amendment doesn’t ask whether speech is good or bad — it asks whether the government has the power to punish it. In the United States, “hate speech” is not a legal category. It’s a moral and social one. That distinction matters, because our Constitution protects even the most unpopular expression. Not because it is admirable, but because allowing the government to decide which ideas are forbidden is far more dangerous.
RAV v. City of St. Paul: When the Government Picks Which Ideas Are Allowed
In RAV v. City of St. Paul, the Supreme Court reviewed a local ordinance that banned symbols like burning crosses or swastikas when they were used to express racist or hateful ideas. No one seriously disputed that the speech involved was offensive or rooted in racial hostility. The constitutional problem wasn’t the message — it was the government’s role in deciding which hateful ideas were punishable.
The ordinance singled out specific viewpoints for punishment while leaving other offensive or hostile speech untouched. That’s unconstitutional. Under the First Amendment, the government cannot act as an idea referee, deciding which beliefs are acceptable and which are forbidden. Once the government has the power to ban “bad” ideas, it also has the power to ban your ideas when political winds shift.
The Court’s decision did not endorse hate speech, but it did reject the idea that the government can pick and choose which viewpoints are allowed to exist in public discourse.
When Principles Are Put to the Test
RAV shows why the government cannot punish speech based on which ideas it finds offensive. But the hardest First Amendment cases don’t end there. What happens when the speech isn’t just offensive in theory — when it is directed at real people, in moments of real grief, and feels morally indefensible? That question reached the Supreme Court in Snyder v. Phelps.
Snyder v. Phelps: Speech the Constitution Protects — Even When It’s Repulsive
Snyder v. Phelps involved members of the Westboro Baptist Church picketing near the funeral of a U.S. Marine. They held signs reading things like “Thank God for Dead Soldiers” and “God Hates the USA.” The church believed that God punishes the United States for its tolerance of homosexuality. The speech was cruel, provocative, and deeply offensive — especially given the context of a military funeral.
But, once again, the Supreme Court’s task was not to judge the decency of the message. It was to decide whether the government had the power to punish it. The Court held that the speech was protected because it took place in a public forum and addressed matters of public concern. Constitutional analysis cannot hinge on emotional reaction alone.
But, when the Court protects this speech, it doesn’t mean they are condoning it. Snyder is a case about principles under pressure: if the First Amendment fails when speech is most repulsive, it fails altogether.
“I’m Offended” Is Not a Constitutional Standard
This is why “I’m offended” is not a constitutional standard. The First Amendment protects speech precisely because offense is subjective, emotional, and deeply dependent on personal experience. If constitutional protection rose and fell with outrage, free expression would disappear the moment it became uncomfortable.
The Problem With Defining “Hate Speech”
You might be questioning “What even is hate speech if there is no legal definition?” This is why it isn’t regulated — no one can agree on what it actually means. Different cultures, historical moments, and political movements define “hate” differently. Those definitions constantly shift over time. What is considered hateful in one era may be protected dissent in another.
If the government were allowed to regulate speech based on an ever-changing concept of “hate,” constitutional rights would rise and fall with public opinion and political power. The First Amendment exists to prevent that outcome by drawing a firm line: the government cannot punish speech simply because its message is offensive or unpopular.
Why Democracy Requires Open Disagreement
Protecting even the most hateful speech is essential to preserving a democratic society. Open discourse allows ideas to be challenged, exposed, and ultimately rejected. Democracy does not require agreement — it requires the ability to disagree openly without fear of government punishment. A system that collapses at the first sign of discomfort cannot survive in the long term.
Exposure, Not Censorship, Is How Bad Ideas Die
“Bad” ideas don’t disappear through censorship. They disappear through exposure. When ideas are pushed into the open, they can be scrutinized, criticized, and defeated on their merits.
I saw this play out in my own life. When I was a teenager, I was convinced I should be dating a boy my parents strongly disapproved of. The harder they tried to forbid it, the more certain I became that I was right. So I went behind their backs — only to quickly realize they had been right all along.
But that lesson didn’t come from being forbidden. It came from exposure. Once the idea was tested in the real world, it collapsed on its own.
What the First Amendment Protects — and What It Doesn’t
This is the logic behind the First Amendment. It protects hateful expression, not harmful actions. That’s why incitement to violence, true threats, and fighting words fall outside constitutional protection. The line is drawn not at offense, but at real, tangible harm.