Left: Bettmann/Getty Images; Right: Edu BayerThe New York Times/Redux

STANDARDS

Common Core: RH.6-8.1, RH.6-8.9, RI.6-8.5, SL.6-8.1, W.6-8.1

C3 (D2/6-8): Civ.1, Civ.2, Civ.3, Civ.8, Civ.9, Civ.10, His.1, His.4

NCSS: Time, continuity, and change; Civic ideals and practices; Individuals, groups, and institutions

Should the First Amendment Protect Hate Speech?

Forty years after the courts upheld neo-Nazis’ First Amendment rights, is it time to rethink protecting hateful 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 backspecifically, the National Socialist Party of America (NSPA), a small group of American neo-Nazis. They planned to hold a rallycomplete with Nazi uniforms and swastikasin 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.

U.S. laws arethe most protective of free speech of any nation.”

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 speechincluding hateful speechdeserves 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 arethe most protective of free speech of any nation,” says Lee Bollinger, a free speech expert. But the question, he says, isshould free speech be extended to speakers whose purpose and message is to deny free speech, people who want to overthrow the government by violence andif successfulbring about the end of free speech?”

A Controversial Case

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 hatredthe 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.

The Right to Speak

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 yellFire!” in a crowded movie theater.

What’s legal and what’s right are sometimes different.”

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.

Clashing Views

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 thatWhat’s legal and what’s right are sometimes different.”

Drew Angerer/Getty Images

People rally against white supremacy in New York City in 2017.

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.”

How to Respond

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

CORE QUESTION: Do you think that the First Amendment should protect hate speech?

Hate Crimes in America 

Is a rise in violence linked to hate speech?

According to a report by Voice of America, at least 1,056 hate crimes were committed in nine of the largest U.S. cities last yearan 18 percent increase from 2016

A recent report released by the Anti-Defamation League (ADL) in February found 1,986 cases of harassment, vandalism, or assaults against Jews in 2017. That’s nearly 60 percent higher than in 2016 and the second-most incidents since the ADL began keeping track in the 1970s.

A hate crime is defined by the FBI as a criminal offense motivated “by an offender’s bias” against a certain group of people. Some say events like the violent white supremacist rally in Charlottesville last year show that people with extreme views are feeling more emboldened to speak out, and that this hateful speech may be one cause for the rise in hate crimes.

KEY CASES

First Amendment

Chaplinsky v. New Hampshire 
A New Hampshire man was arrested for cursing at a police officer. He claimed he’d been denied his freedom of speech. But the Supreme Court ruled against him in 1942, establishing thefighting words doctrine.” It says words thatincite an immediate breach of the peaceare not protected speech.

Texas v. Johnson
To protest the government, a man burned an American flag in 1984. He was arrested but argued that burning the flag was his right. The Supreme Court agreed, ruling in 1989 that symbolic speechno matter how offensiveis protected under the First Amendment.

Brandenburg vOhio
An Ohio member of the Ku Klux Klan was arrested after making a speech that advocated violence. But the Supreme Court sided with the man in 1969, ruling that vague threats of violenceas long as they don’t inciteimminent lawless action—are protected by the First Amendment.

Leveled Articles (1)
PDF
Leveled Text: Should the First Amendment Protect Hate Speech?

A lower-Lexile version of the article in a printer-friendly PDF

Text-to-Speech