Hate Speech and Self-Restraint

Abstract

It is a truism of comparative constitutional law that the United States takes an absolutist position against the criminalization of hate speech, and that it is alone among the constitutional democracies in taking this position. The First Amendment, as interpreted by the courts, bars states and the federal government from banning hate speech just because it is hate speech and for no other reason. Other constitutional democracies do ban hate speech just as hate speech, and for that reason alone. They may justify the ban differently; they may differ on its extent and consequence. But one way or the other, to one degree or another, they ban hate speech and the United States does not. The truism recognizes, of course, that the United States, in fact, does ban hate speech. What the United States does not do – and constitutionally cannot do – is ban hate speech as such . However, if hate speech falls within one of the well-known exceptions to protected speech, then the First Amendment does not stop the government from banning it. Possibly relevant exceptions include “fighting words” and words that create a “clear and present danger” of imminent lawlessness. Yet the exceptions are limited. They permit little more than the criminalization of words that are tantamount to an incipient assault, and neither of them permits the naked and unadorned criminalization of hate speech.