Politicians seem increasingly likely to (falsely) assert that “hate speech is not protected by the First Amendment.” The mayor of Portland, Oregon, just did so following anti-Muslim violence in his community. Former governor and Democratic Party official Howard Dean said the same last month.
The Washington Post does a good job of showing why the claim is false. Courts have not recognized a “hate speech” exception to the First Amendment. To allow us such a prohibition would allow the government to discriminate among viewpoints, a power precluded by the First Amendment. As the FIRE Guide to Free Speech on Campus says, “Laws that ban only certain viewpoints are not only clearly unconstitutional, but are also completely incompatible with the needs, spirit, and nature of a democracy founded upon individual rights.”
Part of the problem here is the term “hate speech” itself. People generally do not like expressions of hatred of individuals or groups. The term “hate speech” in and of itself makes censorship more likely especially when compared to the more neutral term “extreme speech” often used by legal scholars.
Indeed extreme speech can be odious. But we also should recall the general libertarian principle that allowing liberty to do or say something does not constitute endorsing what is done or said. You can criticize extreme speech and argue against prohibiting it. In other words, we need to defend the rights of a speaker but not what he or she says. That difference is likely to be lost in the extreme events that sometimes evoke extreme speech. Indeed that appears to have happened in Portland.