Hate Speech vs. Free Speech: A Critical Analysis by Constitutional Law Expert Sujit Choudhry

By Sujit Choudhry

Since its inception as America’s founding political document, there have been 27 amendments to the United States Constitution. Even the most adept scholars can rarely name and define each one. Many amendments are obscure and deal with legal nuances like changes in representation and how to handle US citizens who come into a foreign title of nobility. While these constitutional adjustments rarely get public attention, the First Amendment continues to spark controversy across a wide swath of the US population. What is free speech? What does the Constitution protect? What is the difference between hate speech and free speech? With the recent attention on the safe space movement on college campuses, it’s increasingly important to understand the legal parameters of the First Amendment.

Understanding Freedom of Speech

The United States Constitution is a document best understood in context. The first ten amendments were written shortly after ratification of the document and were a direct reaction to political issues and human rights’ violations that the founders experienced. In pre-revolutionary England, citizens risked penalization, censure and often even prosecution for speaking or publishing controversial views. The First Amendment’s primary focus was protecting political and religious expressions. They were, in essence, designed to safeguard the people from government pressure. Still, as late as 1798, when President John Adams signed the Alien and Sedition Acts, the scope of free speech was still up in the air. In the end, the court of public opinion decided the issue when an adverse public reaction eventually killed the legislation before the Supreme Court had a chance to weigh in.

The wording of the First Amendment is relatively straightforward. At the core, Americans receive protections to exercise their religious beliefs freely, with specific prohibitions against the government passing laws to restrict religious practice. In addition, free speech is protected as well as a free press, with no restriction on citizens assembling peaceably. The confusion comes when people don’t understand what each of those things means, or when broader interpretations are applied to legal definitions that are, in reality, more narrow.

What About Hate Speech?

Across the board, Americans are widely in support of the idea of free speech. Yet, there is a growing movement promoting social justice and hate speech restrictions. As a legal issue, those ideas are contradictory. There are exceptions to the right to free speech; it’s not anything goes. However, the limitations are quite specific. While some states have enacted targeted hate speech laws, there is no constitutional prohibition specifically addressing hate speech. In a broader sense, some hate speech may fall under the category of exceptions labeled “Fighting Words and Offensive Speech.” As early as 1942, the Supreme Court determined that spoken or written words that would likely provoke violence or incite an imminent breach of peace are not protected under the First Amendment. In addition, threatening someone directly is unprotected speech. General statements against a group, threats made as hyperbole, or words that cause emotional distress but no physical harm fall under the umbrella of free speech and cannot be prosecuted or restricted.

Free Speech and College Campuses

There is nowhere in America more volatile on the issue of free speech than the United States college campus. Traditionally, colleges are bastions of free thought and critical thinking. However, the last decade has seen a dramatic shift in corporate attitudes at institutions of higher learning. Many colleges today are left-leaning, with an ever-weakening tolerance for ideas that don’t fit into a pre-defined narrative. Conservative organizations such as the Federalist Society react with increased activism. The polarized political climate of the 2016 Presidential elections dramatically increased political correctness on college campuses, creating ideas like “safe spaces” and personal censuring. As a legal issue, these ideas are not conducive with the definition of free speech. Yet, student activism has indeed changed school policies. While some universities remain dedicated to protecting the free exchange of ideas, speakers such as Ann Coulter and Milo Yiannopoulos were pulled from the speaking docket of prestigious universities like Berkeley, an institution traditionally in support of free speech. What students may not understand, however, is that the same standard they apply to their social and political opponents creates a precedent that can also restrict their freedom of expression.

At the most basic level, the college climate illustrates why free speech is so important. Human nature causes people to pigeonhole themselves into a relatively narrow range of thoughts and ideas, largely determined by their social, religious and cultural climates. For this reason, we see such a broad divide between the far left and the alt-right political perspectives. The only way to broaden those perspectives is to challenge them with competing ideas, opening each issue up to nuance and risking a breach of safe space in favor of emotional growth and human understanding. Free speech is essential to this process. If hate speech restrictions are too broad, interference in the exchange of ideas can lead to less tolerance, the very thing social justice strives to overcome.

The Role of Social Media

For most of America’s history, the transfer of information and ideas was a slow process. Before telegram, radio and telephones, information took weeks to travel from coast to coast. Social spheres were quite small, with the majority of associations staying within a 100-mile radius of a person’s home. Social groups remained relatively uniform, with universally accepted social standards. A conservative rural community reading more liberal ideas in metropolitan newspapers would quickly dismiss them as outside their cultural context. In the last 50 years, the Internet has turned that model on its head completely. Social media exposes the full spectrum of political opinions in real time, bringing new and different ideas right to your front door. It’s impossible to pretend ignorance against conflicting ideas, and people are forced to interact with an increasingly diverse pool of acquaintances. This is undoubtedly uncomfortable and historically new, so it’s no surprise that there is broad resistance. Still, discomfort leads to both personal and societal growth, making it a net positive.

The United States Constitution legally protects your fundamental human rights. Every citizen should feel free from an immediate threat, so limited speech restrictions make sense. However, valuing free speech means that our collective tolerance for new ideas needs to increase. Redefining every negative interaction as hate speech hurts everyone, creating a climate of political correctness that ultimately muzzles every American. There is a reason that free speech is legally defined. No one person or group can impose their ideas or priorities on another, nor should they. Ultimately, these values promote mutual respect, which creates the safest public climate for all citizens across every political stripe and social issue.

Sujit Choudhry is the founding director of the Center for Constitutional Transitions and the I. Michael Heyman Professor of Law at the University of California, Berkeley – School of Law. Follow Sujit Choudhry on Twitter, LinkedIn or Facebook for more information, or visit his website at www.sujitchoudhry.com.

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20 Comments on "Hate Speech vs. Free Speech: A Critical Analysis by Constitutional Law Expert Sujit Choudhry"

  1. Personally, I exercise my right to disagree with the government shrills everyday. I have the right to disagree with, verbally advise, that I disdain stupid from Washington, DC. Denver, CO, Weld Cty, Government, EVERYDAY. I live in the Wilds of the High Plains Desert in NORTHERN COLORADO for a reason, to Avoid intrusion by government.

    • mortimer zilch | June 16, 2017 at 9:29 am | Reply

      that’s absurd. Unless you are on an Indian Reservation – and even then – Uncle Sam can get ya. Did you pay your taxes this year? Did you withhold any sum because you didn’t agree with how Uncle Sam was using it? What about locally? Who do you get your water from? Are you on the electric grid? I don’t think Colorado allows living off-grid…(maybe I got that wrong, one of those square states doesn’t I seem to recall). Are your cattle tagged? The law is all over you man…don’t act like it isn’t.

    • From the High Desert of Arizona I agree with you friend.

  2. William Ruger: “Free Speech Is Central to Our Dignity as Humans.”


    Is it dignity or the lack thereof for sodomites, lesbians, transgenders to have the right to free assembly and free speech to proselytize our posterity to their perverted lifestyle?

    Is it dignity or lack thereof for those who promote in utero infanticide to have a right to free assembly and speech to promote the murder of more infants in their mothers’ wombs?

    Is it dignity or the lack thereof to give any and all religions free rein to evangelize on behalf of their gods not Yahweh in violation of the First Commandment?

    Hmm! Perhaps “free” speech and assembly undefined by the Bible’s perfect law of liberty isn’t all that we’ve been bamboozled to believe it is. Perhaps it’s just another instance of the 18th-century founders replacing Biblical responsibilities with Enlightenment rights?

    “…Amendment 1 goes on to condemn the prohibition of speech, whether spoken or written. Does the Bible provide for free speech or does it limit speech?….

    “Freedom of speech and of the press has also been used to provide protection for those who promote false religions, infanticide, sodomy, pornography, drug abuse, violence, obscenities, and other abuses condemned by Yahweh. What about freedom of speech and freedom of the press as it concerns Yahweh Himself? Does He allow us freedom to curse Him or profane or blaspheme His name?

    ‘And thou shalt speak unto the children of Israel, saying, Whosoever curseth his God shall bear his sin. And he that blasphemeth the name of YHWH, he … as well the stranger, as he that is born in the land, when he blasphemeth the name of YHWH, shall be put to death.’ (Leviticus 24:15-16)….

    “The provision in Amendment 1 for United States citizens to assemble peaceably appears innocuous. But is it harmless to give sodomites, infanticide advocates, and Satanists the right to assemble peaceably? If you are a proponent of the Constitution and a defender of Amendment 1, you must also defend the rights of such criminals and anti-Christians to assemble and promote their wicked agendas.

    “Homosexuals and infant assassins claim freedom of speech and the right to assemble to combat Christians who speak out or assemble against these heinous people and their blatant immorality. By labeling what Christians do as hate crimes, these immoral people are able to employ Amendment 1 against the rights of Christians to freely speak and assemble. According to the Bill of Rights, it is the religious right of these sodomites, baby killers, and Satanists to use Amendment 1 against Christians. Because Amendment 1 provides for the freedom of “all” religious and non-religious expression (including humanism, which was declared a religion in 1961, in Torcaso v. Watkins74), exclusive religions such as Christianity are not afforded the same protection. Only non-Christian religions, particularly those that are inclusive or tolerant, are afforded full freedom of speech and public assembly….”

    For more, see online Chapter 11 “Amendment 1: Government-Sanctioned Polytheism” of “Bible Law vs. the United States Constitution: The Christian Perspective.” Click on my name, then our website. Go to our Online Books page, click on the top entry, and scroll down to Chapter 11.

    Then find out how much you really know about the Constitution as compared to the Bible. Take our 10-question Constitution Survey in the right-hand sidebar and receive a complimentary copy of a book that examines the Constitution by the Bible.

    • Amen Brother, I posted an editorial in the PAPER in Greeley, CO about 18 years ago, admonishing the celebration of the perverted lifestyle of homosexualism that a local preacher was proud to celebrate. THE LORD will not be mocked, he hates all sin… Most at the time agreed with biblical truth, now a days I don’t think it would be most… SAD. LOVED your post Brother….

  3. Anyone who tries to limit my god given right to self expression can expect a fight to the death.

    • mortimer zilch | June 16, 2017 at 9:24 am | Reply

      God sets limits on it too…or haven’t you noticed?

      • OK then I grant myself the right to say what I want.

        • mortimer zilch | June 16, 2017 at 12:05 pm | Reply

          sounds like you are usurping God’s privilege…I’d be real careful about that G’Zoo…..

          • God schmod.

          • mortimer zilch | June 19, 2017 at 5:51 am |

            He heard that.

          • So did Santa.

          • mortimer zilch | June 22, 2017 at 5:26 pm |

            you don’t get Santa either? it seems your ability to comprehend is limited to tactile reality. Freedom doesn’t exist either in your universe, or self-verse. Nor Nobility, Truth, or any other abstract and/or spiritual concept. According to your logic, the Soul does not exist, and we humans are merely piles of molecules. Very sad, worthless, planet u inhabit.

          • Dear clueless retard, you’re reading into my statements. I agree with your view. I’m just kidding around. In my opinion god has a sense of humor.

  4. mortimer zilch | June 16, 2017 at 9:20 am | Reply

    he gonna get fired if he keep this up.

  5. “our collective tolerance for new ideas needs to increase” – what’s this, a confab of wordiness from someone who grew up in New Delhi? We don’t need “new ideas” like transgenderism or the giveaway of the 240-year-old ideas of freedom from unaccountable tyranny. “Tolerance” nowadays means putting up with every whacked trend that will ultimately destroy America before God and history. Let’s start tolerating freedom – where kids can be kids without being snatched away by CPS or cops, where individuals can make their own choices about lifestyles until they become an eyesore and threat to sane people, and where the globalist scum and their genocidal, thieving crimes can be exposed, their crooked banking, tax, surveillance, and education systems removed, and they prosecuted for some of history’s most devious and monumental crimes.

  6. The hate crime law was a nefarious creation meant to negate many existing protections for all men under the law, by giving special protections to favored groups. It attempts to silence and control people outside these groups (the majority) with much harsher punishment for the same crimes. On the high end, it’s unconstitutional and on the low end it’s grossly redundant.

  7. “Hate speech” is like “Assault Rifle” another made up name. Speech is speech. If I think you are a so and so I will tell you and face the consequences. “Hate speech” is the manipulation of our reality towards the technocratic, Agenda 21 society where we are taken out of the rural country side and stacked and packed in cities without our own transportation and tracked, traced, and data based daily.

    This is the death of a thousand cuts at work.

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