The Constitutionality of Hate Speech: Why it is a Necessary Evil on College Campuses

On February 1, 2017, over 1,500 UC Berkeley students gathered at Sproul Plaza to protest the speech of the notorious conservative Milo Yiannopoulos. [1] Known for his anti-Semitic sentiments, anti-feminist critiques, and alt-right stances, his invitation to speak at Berkeley was a momentous decision to uphold a free marketplace of ideas: a First Amendment philosophy that an unregulated circulation of ideas, instead of speech censorship, will contribute to the prevailment of truth. [2] What began as a peaceful protest spiraled out of control when Antifa activists and Black Bloc anarchists stormed the plaza and attacked members of the crowd, injuring 6 people. [3] Out of fear for public safety, the speech was canceled. Such was the tragic ending to a highly controversial event in which nearly $1 million was spent on security and damage repairs. [4] Yiannopoulos’ divisive opinions not only intensified the political divide on campus, but also sparked a nationwide debate on the constitutionality of hate speech. While it is clear that preserving free speech comes with a cost, maintaining a just democracy is contingent on upholding a free marketplace of ideas.

A just democracy requires an uninhibited circulation of opinions because the people should be given the freedom to decide what is true or false. If the government were allowed to suppress unpopular opinions each time society felt threatened by the idea or violence occurred, then political speech by unpopular minority groups would cease to exist, creating an unjust society that deters dissent. This would have greatly inhibited political minorities, such as women and African Americans, in their fight for rights; free speech enables minorities to push for change and voice their needs. However, this protection of “unpopular ideas” should extend to all minority groups, which today can include white supremacists.

With few exceptions, the Supreme Court has always attempted to uphold the fundamental right of free speech, which encompasses hate speech. One of the earliest interpretations of the protection of controversial ideas was made by Justice Holmes Jr. in his dissent in US v. Schwimmer (1929): “the principle of free thought [is] not free thought for those who agree with us, but rather, freedom for the thought that we hate.” [5] He was one of the first scholars to recognize that the preservation of free speech is contingent on safeguarding even the most abhorrent ideas. Legal jurisprudence has, since then, evolved to emphasize that socially deviant statements demand just as much constitutional protection as socially acceptable speech.

In Brandenburg v. Ohio (1969), the Court established the current standard of evaluating the constitutionality of inciting illegal action, which often includes hateful expressions. Brandenburg, a leader of the Ku Klux Klan, expressed his racist sentiments at a rally, implicitly advocating for violence against minority groups: “the n*gger should be returned to Africa, and the Jew to Israel.” [6] Astonishingly, in a per curiam decision, the Court protected his speech because it did not “incite imminent lawless action.” [7] Since this landmark decision, the Court has continued to safeguard controversial speech -- even flag burning -- to show our country’s dedication to free expression. [8] The problem that seems to persist, however, is getting society to tolerate ideas they so adamantly disagree with.

In light of the current political polarization, debates regarding the constitutionality of hate speech have become highly contentious. The Berkeley protest was not the only hate speech incident that occurred in 2017; in August, self-proclaimed white supremacists marched through the University of Virginia in a torchlit path that emulated the marches of Hitler Youth while chanting, “White lives matter! You will not replace us! Jews will not replace us!” [9] When met by counter protestors, the Charlottesville riot turned violent, leaving 3 dead and 35 injured. [10] Such violent ends are often the consequence of living in a country that heralds free speech, raising the question: is it worth it?

The answer, while highly controversial, is yes. That does not mean, however, that such violence is constitutional: the actions of extremist groups, at Berkeley and Charlottesville, are not protected under the First Amendment. However, it is imperative to protect the racist and abhorrent comments because speech restrictions would be even more detrimental to the functioning of our free society than violence. America is the only country that heralds free speech this intensely. Our nation was built upon the principle of free speech: a direct response to the religious strife colonists had experienced under British rule. The framers intended for free speech to enable people to seek a redress of grievances and hold the government accountable. [11] Any unwarranted censorship of free speech gives too much power to the government to filter out ideas; this threatens democracy in that speech would no longer be free, let alone serve as an effective check against oppressive government actions; nor would there exist a diverse body of ideas essential to every free society.

It is imperative to not only protect hate speech at all costs, but to particularly do so on college campuses. As Justice Brennan argued in Keyishian v. Board of Regents (1967), “the classroom is peculiarly a free marketplace of ideas. The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas.” [12] The danger of silencing unpopular ideas on campuses is the risk of creating echo chambers and thus intolerant, prejudiced viewpoints that are severely removed from other political thoughts. In echo chambers, the same ideas are repeated with no educational value extracted; if this were to occur on college campuses, students will never have their opinions challenged, left to assume a potentially false viewpoint. Instead, as Justice Holmes argued in his dissent for Abrams v. U.S. (1919), “the best test of truth is for it to get itself accepted in the competition of the market,” which is the current principle the Court stringently upholds. [13]

Although hateful ideas are argued to be linked to violence, suppression of speech is counterproductive because it will only drive such hate further underground, with violence still prevalent. A more effective approach is targeting these ideas out in the open to create awareness and uninhibited discussion. For instance, when a second Unite the Right rally was held on the anniversary of the Charlottesville incident, hundreds of counter-protestors congregated in Washington D.C. to protest. [14] Forging solidarity against the hateful ideas of the alt-right group drew national attention and encouraged people to engage in dissenting discourse. Inevitably, hate speech has become a necessary evil to preserve diversity of thought in America; more speech, not less, will teach students to use discourse to effectively challenge hateful ideas. Because college campuses foster the minds of future generations, the preservation of free speech in its purest form is contingent on universities protecting hate speech.

[1] Park, Madison, and Kyung Lah. "Berkeley Protests of Yiannopoulos Caused $100,000 in Damage." CNN. February 03, 2017. Accessed November 11, 2018.

[2] Schultz, David, and David L. Hudson. "Marketplace of Ideas." The First Amendment Encyclopedia. June 2017. Accessed December 02, 2018.

[3] Lieberman, Dan. "Milo Yiannopoulos Is Trying to Convince Colleges That Hate Speech Is Cool." CNN. February 03, 2017. Accessed November 11, 2018.

[4] Strickland, Patrick. "Milo Yiannopoulos' Security Cost UC Berkeley $800,000." GCC News | Al Jazeera. September 25, 2017. Accessed November 11, 2018.

[5] "FindLaw's United States Supreme Court Case and Opinions." Findlaw. Accessed November 11, 2018.

[6] Tedford, Thomas L., and Dale A. Herbeck. "Brandenburg v. Ohio." MIRAGE OF DEFENSE: REEXAMINING ARTICLE FIVE OF THE NORTH ATLANTIC TREATY AFTER THE TERRORIST ATTACKS ON THE UNITED STATES. 2009. Accessed November 11, 2018.

[7] "Brandenburg v. Ohio." Oyez. Accessed November 11, 2018.

[8] "Texas v. Johnson." Oyez. Accessed November 11, 2018.

[9] Heim, Joe. "How a Rally of White Nationalists and Supremacists at the University of Virginia Turned into a 'tragic, Tragic Weekend.'" The Washington Post. August 14, 2017. Accessed November 11, 2018.

[10] Sheth, Sonam. "3 Dead following White Nationalist Rally in Charlottesville, Virginia - FBI Announces Investigation." Business Insider. August 12, 2017. Accessed November 11, 2018.

[11] VOA. "U.S. Institutions - Why Is the First Amendment Important?" Editorials VOA. February 22, 2017. Accessed December 02, 2018.

[12] Blocher, Joseph. “Institutions in the Marketplace of Ideas.” Duke Law Journal 57 (n.d.): 69.

[13] “Abrams v. United States.” Legal Information Institute. Accessed November 11, 2018.

[14] “Charlottesville Focuses on Healing as Unite the Right Rally Heads to Washington.” NBC News. Accessed November 11, 2018.

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