Hate Speech and the Constitution

Dash Rierson

The issue of hate speech has become more prevalent with the advent of social media, which has also paradoxically coincided with the so-called “era of political correctness”. However, the issue of free speech is uniquely unambiguous within the Bill of Rights, declaring “Congress shall make no law … abridging the freedom of speech”. These protections are unprecedented among democracies internationally and are a source of fierce pride and sentiments of independence for many Americans.

Although Constitutional scholars and ordinary Americans alike have questioned protections for hate speech since their inception, the Supreme Court has remained steadfast in its understanding of the First Amendment since early-20th Century. Most recently, in 2017, the nine justices voted unanimously to maintain protections for hate speech.

The fundamental question is this: should a document which was created to serve the interests of white slaveholders dictate what is considered protected speech? When posed in that form, it can be difficult to defend the preservation of speech that harkens back to America’s most horrific periods. A crucial distinction must be made: while the Constitution protects Americans from the legal repercussions of hate speech it does not protect them from other consequences of speech. It does not protect your job, your social media accounts, your enrollment at schools, or any other consequences.

And it shouldn’t.

Many lament the culture of political correctness, and some reactions have been admittedly draconian or motivated by hopes of elevating one’s political or social stature. Nevertheless, the increased accountability and fostering of more understanding communities should be celebrated.

The unfortunate reality is if you infringe on legal protections for any type of speech, you enter a slippery slope in which any speech is liable to be curbed. These protections should extend to, say, the Boycott, Divestment, and Sanctions or BDS movement, an expression of free speech through financial disentanglement with the current Israeli regime.

Regrettably, many self-proclaimed “free speech warriors” have been conspicuously silent over recent bipartisan attacks on the movement. Twenty-six states have ratified bills that penalize companies that choose to boycott doing business with the Israeli regime.

Therein lies the most severe threat to the continuation of free speech in America— not the expansion of political correctness or safe spaces, but lawmakers hypocritically and selectively deciding what speech is legally permitted. Whether or not we decide to continue our Constitutionally-mandated tradition of free thought and free speech will be dependent on the forcefulness of those convictions when defending protections for the speech that we hate.

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