Should the First Amendment Protect Hate Speech?

After surviving unspeakable horrors at nine different concentration camps during the Holocaust, Ben Stern, a Jewish man from Poland, never thought he’d have to face Nazis again.

In 1946, after World War II (1939-1945), he and his wife emigrated from Europe to the United States to start new lives. They settled in Skokie, Illinois, a suburb of Chicago, and spent the next 30 years raising a family.

But Stern’s life was upended in 1977. To his shock, the Nazis were back—specifically, the National Socialist Party of America (NSPA), a small group of American neo-Nazis. They planned to hold a rally—complete with Nazi uniforms and swastikas—in the mostly Jewish suburb. 

The town of Skokie issued an order prohibiting the demonstration. But the neo-Nazis found an unlikely ally in the American Civil Liberties Union (A.C.L.U.), a legal rights group that took their case. The dispute reached the U.S. Supreme Court, which helped clear the way for a lower court to rule that the neo-Nazis had a right to march under the First Amendment, which protects freedom of speech.

Ben Stern is a Jewish man from Poland. He survived unspeakable horrors at nine different concentration camps during the Holocaust. Stern never thought he would have to face Nazis again.

In 1946, after World War II (1939-1945), Stern and his wife emigrated from Europe to the United States to start new lives. They settled in Skokie, Illinois. That is a suburb of Chicago. They spent the next 30 years raising a family.

But Stern’s life was upended in 1977. To his shock, the Nazis were back. The National Socialist Party of America (NSPA) is a small group of American neo-Nazis. They planned to hold a rally in the mostly Jewish suburb of Skokie. The meeting would feature Nazi uniforms and swastikas.

The town of Skokie issued an order banning the demonstration. But the neo-Nazis found an unlikely ally in the American Civil Liberties Union (A.C.L.U.). The A.C.L.U. is a legal rights group, and it took their case. The dispute reached the U.S. Supreme Court, which helped clear the way for a lower court ruling. The lower court ruled that the neo-Nazis had a right to march under the First Amendment, which protects freedom of speech.

The case helped clarify that all people have the right to rally publicly, no matter how offensive their views. But 40 years later, some experts are questioning whether all speech—including hateful speech—deserves constitutional protection. The debate has come into renewed focus in the aftermath of a violent white supremacy rally in Charlottesville, Virginia, last year. 

U.S. laws are “the most protective of free speech of any nation,” says Lee Bollinger, a free speech expert. But the question, he says, is “should free speech be extended to speakers whose purpose and message is to deny free speech, people who want to overthrow the government by violence and—if successful—bring about the end of free speech?”

The case helped make clear that all people have the right to rally publicly. It does not matter how offensive their views are. But 40 years later, some experts are questioning whether all speech, including hateful speech, deserves constitutional protection. The debate has come into renewed focus in the aftermath of a violent white supremacy rally in Charlottesville, Virginia, last year.

U.S. laws are “the most protective of free speech of any nation,” says Lee Bollinger. He is a free speech expert. But the question, he says, is “should free speech be extended to speakers whose purpose and message is to deny free speech, people who want to overthrow the government by violence and—if successful—bring about the end of free speech?”

Formed in the 1970s, the NSPA was a small but powerful hate group. Its members regularly held anti-black demonstrations in southwest Chicago, aimed at keeping African-Americans out of that neighborhood.

But faced with the increasingly high insurance costs of holding demonstrations in Chicago, the group decided to take its message of white superiority to nearby Skokie. In March 1977, it requested a permit to hold a rally there.

It was a particularly cruel choice because Skokie, a village of about 70,000 people, was nearly 60 percent Jewish at the time. And like the Sterns, thousands of residents were survivors of the Holocaust. That was the mass slaughter of millions of European Jews and other oppressed groups by German dictator Adolf Hitler and his Nazi Party from 1933 to 1945. 

After an outcry from residents, Skokie officials attempted to block the demonstration. But the NSPA argued that it had a right to assemble. With the backing of lawyers at the A.C.L.U.—a group better known for defending civil rights marchers than preachers of hatred—the Nazis sued. 

The U.S. Supreme Court weighed in early on in the dispute. It struck down lower court rulings that were preventing the rally, saying that those courts followed improper protocol. This cleared the way for state and federal courts to continue hearing the case. Eventually, a federal district court ruled in favor of the Nazis. The march could go on.

Formed in the 1970s, the NSPA was a small but powerful hate group. Its members regularly held anti-black demonstrations in southwest Chicago. The demonstrations were aimed at keeping African-Americans out of that neighborhood.

The NSPA was faced with the increasingly high insurance costs of holding demonstrations in Chicago. So it decided to take its message of white superiority to nearby Skokie. In March 1977, it requested a permit to hold a rally there.

It was a particularly cruel choice. That is because Skokie, a village of about 70,000 people, was nearly 60 percent Jewish at the time. And like the Sterns, thousands of residents were survivors of the Holocaust. That was the mass slaughter of millions of European Jews and other oppressed groups by German dictator Adolf Hitler and his Nazi Party from 1933 to 1945.

After an outcry from residents, Skokie officials tried to block the demonstration. But the NSPA argued that it had a right to assemble. With the backing of lawyers at the A.C.L.U., a group better known for defending civil rights marchers than preachers of hatred, the Nazis sued.

The U.S. Supreme Court took action early on in the dispute. It struck down lower court rulings that were preventing the rally. It said that those courts had followed improper procedure. That cleared the way for state and federal courts to continue hearing the case. Eventually, a federal district court ruled in favor of the Nazis. The march could go on.

Why would the courts side with the Nazis? It goes back to the First Amendment, which is part of the Bill of Rights. It guarantees Americans’ freedom of speech, religion, and the press, as well as the right to assemble peacefully and petition the government for change. 

While it protects most hate speech, the First Amendment does not protect against making threats or false statements, or using language that incites violence. One often-cited example is that you don’t have the right to yell “Fire!” in a crowded movie theater.

Why would the courts side with the Nazis? It goes back to the First Amendment, which is part of the Bill of Rights. The First Amendment guarantees Americans’ freedom of speech, religion, and the press. It also guarantees the right to assemble peacefully and petition the government for change.

The First Amendment protects most hate speech. But it does not protect against making threats or false statements, or using language that incites violence. One often-cited example is that you do not have the right to yell “Fire!” in a crowded movie theater.

In polls, Americans often rank freedom of speech as their most important right. According to one survey, 85 percent of Americans said the right to speak freely is more important than making sure no one is offended by what others say. In fact, the Supreme Court regularly hears First Amendment cases (see sidebar, below).

The protection of hate speech in the U.S. is in sharp contrast to that of other countries. Several European nations prohibit the use of Nazi symbols and flags. Even more countries, including France and Germany, have made denying the Holocaust a crime.

In polls, Americans often rank freedom of speech as their most important right. According to one survey, 85 percent of Americans said the right to speak freely is more important than making sure no one is offended by what other people say. In fact, the Supreme Court regularly hears First Amendment cases (see sidebar, below).

The protection of hate speech in the U.S. is in sharp contrast to that of other countries. Several European nations ban the use of Nazi symbols and flags. Even more countries, including France and Germany, have made denying the Holocaust a crime.

However, after the violent rally in Charlottesville, some people are saying it’s time to rethink the protection of hate speech in the U.S., if only to prevent violence (see sidebar, below). Last August, A.C.L.U. lawyers defended the right of neo-Nazis and the Ku Klux Klan to stage a march against the city’s plan to remove a statue of Confederate General Robert E. Lee. The rally went forward with hundreds of protesters, many of them armed.

As a crowd of people who disagreed with them arrived to counter-demonstrate, violence erupted. An alleged white supremacist plowed his car into counterprotesters, killing a woman and injuring 19 others.

In the aftermath, about 200 A.C.L.U. staff members signed an open letter criticizing the group’s longstanding position of defending white supremacists in free speech cases. One board member of the A.C.L.U. of Virginia even resigned, writing on Twitter that “What’s legal and what’s right are sometimes different.”

However, after the violent rally in Charlottesville, some people are saying it is time to rethink the protection of hate speech in the U.S., if only to prevent violence (see sidebar, below). Last August, A.C.L.U. lawyers defended the right of neo-Nazis and the Ku Klux Klan to stage a march against the city’s plan to remove a statue of Confederate General Robert E. Lee. The rally went forward with hundreds of protesters. Many of them were armed.

A crowd of people who disagreed with them arrived to counter-demonstrate. Violence then erupted. An alleged white supremacist plowed his car into counterprotesters. That act killed a woman and injured 19 others.

After that, about 200 A.C.L.U. staff members signed an open letter criticizing the group’s longstanding position of defending white supremacists in free speech cases. One board member of the A.C.L.U. of Virginia even resigned. He wrote on Twitter that “What’s legal and what’s right are sometimes different.”

Some people say that speech should be regulated in the same way the government regulates speed limits.

“If you do something in a threatening or intimidating way, the First Amendment should not be protecting you,” says Thane Rosenbaum, a professor at the New York University School of Law. 

But others say defending First Amendment rights of hate groups protects freedom of speech for everyone. 

“Nobody wants to be hurt by hateful speech,” says Philippa Strum, a constitutional law expert. “But the problem is, if we outlaw speech, that means the government or others in authority are going to be picking and choosing what we hear. We need to be able to hear all sides [to] become . . . responsible citizens.”

Some people say that speech should be regulated in the same way the government regulates speed limits.

“If you do something in a threatening or intimidating way, the First Amendment should not be protecting you,” says Thane Rosenbaum. He is a professor at the New York University School of Law.

But others say defending the First Amendment rights of hate groups protects freedom of speech for everyone.

“Nobody wants to be hurt by hateful speech,” says Philippa Strum. She is a constitutional law expert. “But the problem is, if we outlaw speech, that means the government or others in authority are going to be picking and choosing what we hear. We need to be able to hear all sides [to] become . . . responsible citizens.”

Since the Charlottesville protest, the A.C.L.U. has been reevaluating its criteria for accepting free speech cases, including those that will involve public rallies. The group indicated that it would consider the potential for violence.

In the meantime, experts on both sides of the debate point out that just because hate groups have the right to speak, it doesn’t mean others can’t respond.

That’s exactly what happened in Skokie. The neo-Nazis never ended up marching there because Ben Stern and other residents exercised their own First Amendment rights.

They campaigned in Skokie and beyond, recruiting a staggering 60,000 people who vowed to take to the streets in protest if the Nazis turned up. When the Nazis heard of the massive counter-demonstration being planned, they moved their rally to another location.

“It was a great example of the way Americans should respond to hate speech,” Strum says. “As citizens, we all have rights, but we also have responsibilities to speak up and counter bad speech with good speech. It’s what we do in a democracy.” 

Additional reporting by Joseph Berger

Since the Charlottesville protest, the A.C.L.U. has been reevaluating its standards for accepting free speech cases. These include cases that will involve public rallies. The group indicated that it would consider the potential for violence.

In the meantime, experts on both sides of the debate point out that just because hate groups have the right to speak, it does not mean others cannot respond.

That is exactly what happened in Skokie. The neo-Nazis never ended up marching there. That is because Ben Stern and other Skokie residents exercised their own First Amendment rights.

Stern and the others campaigned in the town and beyond. They rounded up a staggering 60,000 people who vowed to take to the streets in protest if the Nazis turned up. When the Nazis heard of the massive counter-demonstration being planned, they moved their rally to another location.

“It was a great example of the way Americans should respond to hate speech,” Strum says. “As citizens, we all have rights, but we also have responsibilities to speak up and counter bad speech with good speech. It’s what we do in a democracy.”

Additional reporting by Joseph Berger