Free speech rights have been central in securing key rights for minority and oppressed groups throughout American history.

The First Amendment fully protects speech that some may find distasteful, offensive, or even hateful. While it is often said that “hate speech is not free speech,” there is no legal definition of “hate speech” in the United States. In a diverse country like the U.S., it’s not realistic to expect people to agree very much about what speech is so hateful that it should be banned. At the same time, courts have established that true threats, incitement to immediate unlawful action, harassment, and defamation, along with some other speech-based conduct (such as fraud and criminal conspiracies), are not protected by the First Amendment.

True threats can be prosecuted under the law. A “true” threat is distinct from a threat that is made in jest. The Supreme Court noted that “a threat must be distinguished from what is constitutionally protected speech” (see Watts v. United States (1969)) and recognized that “uninhibited, robust, and wide-open” political debate can at times be characterized by “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” (see New York Times Co. v. Sullivan (1964)). Hence, a true threat must be viewed in its context and distinguished from protected hyperbole.

Not all speech is protected by the Constitution. Here are the categories of unprotected speech.

The government has an obligation to protect unpopular speech. In the case Terminiello v. Chicago (1949), the Supreme Court ruled that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In the case Forsyth v. County v. Nationalist Movement (1992), the Supreme Court ruled that the government could not prevent or unduly burden speech merely because it might prove “unpopular with bottle throwers” or “because it might offend a hostile mob.” A situation in which the authorities allow a person or group to shut down the expression of a speaker is called a “heckler’s veto.”

Further reading:

Rejecting the Heckler’s Veto

Disinvitation Season: Protected Counter-Speech or Heckler’s Veto?

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence” wrote Justice Louis Brandeis in his concurring opinion in Whitney v. California (1927). His statement forms the essence of the counter-speech argument that the best way to oppose bad speech is with good speech, and a far superior alternative to censorship.

Reading: President Obama - Student Protests Should Embrace Free Speech