Is hate speech protected speech?

Hate speech is an especially difficult form of speech to navigate in upholding the constitutional right to freedom of speech. The liberal position on freedom of speech often inclines towards protecting forms of speech against repression for fear of authoritarianism. Should hate speech receive the same protections? Hate speech itself is speech that disparages groups of people, often historically persecuted groups that have been targeted based on stereotypical assumptions.

While some would argue that these words have a limited effect, the rhetoric found in hate speech contributes to systematic inequality and legitimatizes the violence and oppression directed at marginalized groups of people. It’s clear to see that hate speech cannot be minimized and that it leads to more serious repercussions if not adequately addressed. The purpose of hate speech is to dehumanize a group of people to the point that it justifies subjecting that group to violence and persecution. The Holocaust, the enslavement of African-Americans, and Western imperialism all demonstrate how efficiently normative speech operates in facilitating depraved acts against human dignity. Speech contributes to our understanding of the world because it establishes a normative perception of other people.

The damage incited by hate speech is difficult to pinpoint because it implicitly contributes to a hostile and violent environment that is formed through the comprehensive accumulation of all standing prejudices. That means that it is especially difficult to regulate hate speech. However, a different perspective is projected onto fighting words. Fighting words are one of the few exceptions allowed within the idea of freedom of speech. In Chaplinsky v. State of New Hampshire, the Supreme Court held that fighting words were an exception to the construct of protected speech. This, however, occured in 1942 and fighting words have traveled a winding path to their current status. Fighting words no longer cover simply offensive language but involve a direct imperative for conflict and violence.

Though its application has become more complex, the rationale behind the fighting words doctrines – that it promotes violence and disturbs societal wellbeing – lends itself to the rationale behind regulating hate speech. Obviously, this requires considerable tailoring of law and situational considerations, but regulating hate speech is not without merit or logic. The proliferation of defamatory speech has undeniably led to catastrophic societal effects. Freedom of speech, like all constitutional amendments, must be protected with consideration of reasonable limitations. There is an imperative to protect American lives from debasement as the result of purposeful rhetoric.

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