The U.S. is alone among western democracies in protecting “hate speech.” Chalk it up to a healthy fear of government censorship.

March 16, 2011

Peter Scheer


An inebriated John Galliano, sitting in a Paris bar, unleashes an anti-semitic rant (“I love Hitler”) that is captured on a cellphone camera and posted on the internet. Within days the Dior designer is not only fired from his job, but is given a trial date to face criminal charges for his offensive remarks.

In the same week, the U.S. Supreme Court extends First Amendment protection to the homophobic proclamations of a fringe religious group whose founder and members, picketing near a funeral for an American soldier killed in Iraq, hold signs stating, among other things, “Thank God for Dead Soldiers,” “God hates fags” and “You’re Going to Hell.” The Court, in Snyder v. Phelps, bars a suit against the religious group for damages because the demonstrators’ message, although causing “emotional distress” to the dead soldier’s family, dealt with “matters of public concern.”

The contrast between these cases reflects fundamentally different views about the role of free speech in a democracy. France, hardly an intolerant or autocratic country, imposes criminal fines for racial epithets, Holocaust-denial, anti-immigrant advocacy and other forms of “hate speech.” And the French are not alone. To varying degrees, Germany, the Netherlands, New Zealand, South Africa and Canada–liberal democracies, all–enforce similar laws banning hate speech.

The United States is an outlier when it comes to freedom of expression. Although we share other countries’ repugnance for hate speech, particularly the race- and religion-baiting variety, the First Amendment reflects a uniquely strong aversion to government censorship of any kind. As interpreted in Supreme Court decisions going back nearly a century, the First Amendment forbids government suppression of ideas, no matter how vile, deranged or offensive—as long as the speaker doesn’t cross the line separating speech and illegal action (or succeed in inciting others to engage in violent crimes).

Galliano, if he lived in New York, could not be prosecuted for giving vent to his bigoted views. (His defenestration from Dior, on the other hand, likely would stand.) In New York he would be a free man, although there are certain neighborhoods in Brooklyn and elsewhere that Galliano would be well-advised to avoid (to paraphrase Humphrey Bogart in “Casablanca.”)

The Constitution’s protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy–why else would government wish to discredit it?–and, by making the idea illicit, to increase its appeal and potential audience. This hypothesis is supported by the experience of China and other autocratic governments in censoring the internet.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open “marketplace of ideas” where its defects and shortcomings will be exposed through debate. For example, blogger-critics of Galliano–whose background is Jewish and Gypsy–were quick to skewer him with the observation that his affection for Hitler would have been reciprocated, during World War II, with a one-way trip to Dachau. France’s piling on of criminal charges is hardly necessary to discredit Galliano’s views.

Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn’t, protected. The Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective–even to the point of protecting expression that is false or extremely hurtful.

To foreigners, America’s protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not really disagree. Let’s be frank, the speech of the religious extremists in the Snyder v. Phelps case, like Galliano’s tirade in a public bar, has absolutely zero social value. We nonetheless protect such speech, not out of an excess of tolerance, but because even more than hate speech we fear a government that has the power to decide what speech to protect and what speech to ban.

Intolerance of censorship is a powerful First Amendment value. It is a value worth remembering, and honoring, during Sunshine Week.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition, a nonprofit organization dedicated to protecting freedom of speech and the public’s right to know.



  1. rogerfreberg says:


    Everyone loves to see the bad guy controlled, ghettoized and censored…. until it becomes us. The people who came to this country… and continue to come… are trying to build a better life for themselves and their families… and many came to also escape the control, etc. of their former lands. Whatever their reason, it is clear that most have arrived to help build a better land … and hopefully not in the image of where they just left… whether that be England, Germany or Iraq.

    Thomas Jefferson was brilliant… here’s but one interesting quote:

    “When the people fear their government, there is tyranny; when the government fears the people, there is liberty. ”

    I have no problem with the government having checks and balances The key to remember that freed om of speech is the one ‘right’ on which all of our other rights depend. If we lose this, all is in jeopardy .

    Our universities are very free with wanting to curtail what they consider ‘hate speech’ and ‘hate groups’… and this may seem wonderful on the surface until you hear it includes such typical hate groups like : the boy scouts, ROTC, Christians and Republicans.


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  2. mkaney says:

    What part of inalienable freedoms do you not understand? The reason for protecting “hate” speech, in fact the whole point about broad freedoms is because it is IN THE DETERMINATION of what is hateful, inciteful, etc.. that the subjectivity and abuse lie. Almost never do leaders sell their authoritarianism, right violations, and what not as malevolent ideas, but it’s always to “protect” someone or for the “good of the people.”

    This is the same basis for the (currently dormant) American judicial ideal of “better 10 guilty men go free than 1 innocent man suffer.”

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  3. RayCollins says:

    Too bad if we’ve allowed ourselves to be herded in to ‘sides’.

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  4. R.Hodin says:

    One more aspect of this expression is not so flattering: Americans love stupid. We honor it and reward it. And while we’re enraptured by it, we little notice that our precious raft of “Liberty” has become the laughing-stock of civilization.

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    • Typoqueen says:

      I agree that it seems like Americans love stupid, one only needs to look at the comments often made by Michele Bachmann and Sarah Palin to see that this is true. They are rewarded for her stupidity over and over. But I don’t believe that other countries laugh at us in regards to freedom of speech. Not all Americans sound as stupid as Bachmann and Palin. I value thier right to say what what they want to say no matter how stupid it might be.

      On the other hand, there must be a way to shut the nuts from the Westboro Baptist Church up legally by not taking away their freedom of speech. I don’t understand why law enforcement can’t for example claim that when the whack jobs are disrupting a funeral that they can’t be hauled off for disturbing the peace. There must be other legal ways to stop them. Perhaps we should have some ordinances or laws that protect the rights of families that are attending their loved ones funerals that would keep demonstraters at least 5 miles away?? I’m not sure what the answer is but we need to be more creative with those crazy people because we are taking the rights of the grieving families away.

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      • Cindy says:

        “we are taking the rights of the grieving families away.”

        The problem with your recommended solution is that, every time we give an inch, someone takes a mile. Just look what happened to small shop keepers when we enacted the disabilities act! If we were to enact special rights for parents attending funerals we would have nut jobs petitioning for special rights when they were in pain over their loved one’s being on trial for murder and eventually it would end up being about someone in pain over their tonsils. Sad but true. We need to protect every right that we have, the gov has already successfully conspired to remove too many of them.

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        • danika says:


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        • Typoqueen says:

          I don’t believe that stopping them by saying that they are disturbing the peace is taking away their rights. I’m also not saying that either of my solutions were good or practical solutions. I’m sure that there are people smarter than me that could come up with something that is fair. There should be ways to get around this without stepping on the Constitution. When they were looking to throw Capone in prison they couldn’t do it, they tried everything but his lawyers continually got him off. They finally nailed him with income tax evasion, nothing to do with murder but they did manage to get him.

          I agree that we have to be careful. This is a big problem with this country IMO. It’s always black and white, no inbetween, whether it be with our politics or our laws. With politics, you’re either with them or with us, no inbetween. With the law there is no looking at individual people and individual cases. The Disabilities Act is a great example of that.

          But perhaps you are right, this is the way it is. I would like it to be different but there’s too much that could go wrong if these things were to change. I guess you can’t put laws on morality

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          • Cindy says:

            “I’m sure that there are people smarter than me that could come up with something that is fair.”
            That is highly doubtful, at least not where our gubment is concerned. ;-)

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      • choprzrul says:

        TypoQueen: “I agree that it seems like Americans love stupid, one only needs to look at the comments often made by Michele Bachmann and Sarah Palin…”

        Let’s not forget some zingers by our president:
        “In case you missed it, this week, there was a tragedy in Kansas. Ten thousand people died — an entire town destroyed.” –on a Kansas tornado that killed 12 people

        “I’ve now been in 57 states — I think one left to go.” –at a campaign event in Beaverton, Oregon

        “On this Memorial Day, as our nation honors its unbroken line of fallen heroes — and I see many of them in the audience here today — our sense of patriotism is particularly strong.”

        “I’m here with the Girardo family here in St. Louis.” –speaking via satellite to the Democratic National Convention, while in Kansas City, Missouri, Aug. 25, 2008

        “No, no. I have been practicing…I bowled a 129. It’s like — it was like Special Olympics, or something.” –making an off-hand joke during an appearance on “The Tonight Show”, March 19, 2009

        “The Middle East is obviously an issue that has plagued the region for centuries.” –Tampa, Fla., Jan. 28, 2010

        Nobody has cornered the market on stupid. It seems to be abundant on both sides of the isle.

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        • Typoqueen says:

          Chop, there is a huge difference between a slip of the tongue and just out and out not knowing simple facts. Do you honestly believe that Obama doesn’t know that there isn’t 57 states or that fallen heroes are in the audience etc.? Of course he knows these things. Michele B. and Sarah P. don’t just make slip of the tongue remarks. If they were slip of the tongue then they wouldn’t repeat them over and over. I’m sure that Obama knows that there’s 50 states. Bachmann believes that our founding fathers did away with slavery, the latest regarding the ‘shot heard around the world’, Palin with her death panels, not reading a newspaper etc.. Those were said out of stupidity not because they were tired, not because they got their words tied up, they really believe these things to be true. Everyone says stupid things once in awhile, that’s to be expected. That being said, I don’t believe that all republicans are stupid, to the contrary I’m sure that there are many intelligent republicans. As for the Teabags,,,well that’s a different story.

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          • amusselm says:

            Well, the founding fathers did do away with slavery in some ways. A clause was written into the constitution to bar the importation of slaves. Some of the founding fathers themselves were slaveowners who emancipated their slaves.

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      • danika says:

        “Nuts and wackjobs and crazy people” as defined by you have the right to free speech. Perhaps there are people who would define you as a “nut or wackjob or crazy people” and want to censor you. The point is, tho their words are horrid and highly inappropriate, their right to speak them must be protected. We are not taking the rights of the grieving families away in the least. We are protecting the right to free speech. Don’t color it with a broader crayon.

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        • Typoqueen says:

          So danika, it’s alright to yell fire in a crowed theater, no matter how many people get hurt, even if a baby gets stomped to death, you beileve that’s that persons right?

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