Hate speech and the First Amendment

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Should hate speech be protected under the First Amendment of the United States Constitution?

This is a question that doesn't have an easy ‘yes or no’ answer, but rather must be looked at piece by piece to formally state an opinion. First, the First Amendment must be understood, only then can a opinion be stated.

The United States Constitution’s First Amendment is formally written as: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In short, Congress must not make a law limiting everyone’s right to freedom of speech, press, peaceful assembly, and the right to petition the Government for the correction of an injustice.

In 236 years the First Amendment has existed in the United States several cases have been fought in and resolved in the name of the First Amendment leading to further advancement of how the amendment is interpreted in a court of law, such a case was Jamison vs. Texas. Jamison was charged for allocating religious bills, violating local Dallas, Texas law. In reality Jamison had done nothing wrong. Primarily, in Lovell vs. City of Griffin a similar matter had been fought deciding in the distributors favor, and thus in a court of common law a case would have likely decided in her favor. Further, the local law had violated the first amendment’s freedom for the expression of press, speech, and religion. 

Hate speech is defined by Oxford Languages as “Abusive or threatening speech or writing that expresses prejudice on the basis of ethnicity, religion, sexual orientation, or similar grounds.”

Marine Lance Corporal Matthew Snyder (Fallen Heroes Memorial)

In the past cases involving the First Amendment with Hate Speech have been fought, namely Snyder v. Phelps. The congregation of the church Fred Phelps had created in Maryland had been picketing American soldier funerals for the Government's acceptance of homosexuality. In a particular case Phelps had organized a picketing at Iraq War hero Marine Lance Corporal Matthew Snyder’s funeral by placing homophobic signs outside of the church his funeral occurred at. Snyder’s father had filed a case against Phelps. 

What first had to be viewed was if the picketing was of public or private matter as “Speech on public issues…is entitled to special protection.”(Connick v. Myers) It was decided that Snyder’s church had spoken to public matters rather than private matters, earning “special protection” therefore ending in Snyder’s favor. Further, the signs had caused no real harm towards Phelps as it did not interfere with funeral processions and Snyder was exercising his right to free speech.

Thus, based on my assessment, as long as the speech does not cause any criminal harm, hate speech can not be criminalized under the First Amendment. 

Jamison v. Texas, 318 U.S. 413 (1943)

Snyder v. Phelps, 562 U.S. 443 (2011)

“Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause.” Constitution Annotated, 19 July 2025, https://constitution.congress.gov/browse/essay/amdt1-6/ALDE_00000040/['speech'].