Does the First Amendment Protect Threats and Hate Speech?

The first ten amendments to the U.S. Constitution, also known as the Bill of Rights. The aim of the Bill of Rights is to safeguard individual freedoms and constrain the power of the government.

The First Amendment reflects these democratic ideals by establishing the freedom of speech. Its free speech clause reads,

“Congress shall make no law…abridging the freedom of speech…"

From this language, we can see that our First Amendment right to free speech begins as a prohibition on Congress. Our federal legislature is bound by the Constitution, which means that Congress cannot enact laws that violate our rights to free speech. Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the U.S. Supreme Court has determined that this prohibition extends to government action (state action) of any kind and at any level.

Government action restricting free speech can take many forms, including local ordinances, public library policies, court injunctions, and federal agency action.

Applicability of the First Amendment

The First Amendment generally applies to government regulation of private speech. It doesn’t restrict government regulation of government speech. Aside from a few exceptions recognized by the Supreme Court, this does not apply to speech limitations enforced by private entities.

The Supreme Court has determined that speech protected by the First Amendment can include the written word and other expressive conduct. For example, refusing to salute the American flag or messaging on a t-shirt are both forms of speech, or free expression, protected by the First Amendment.

Free Speech Restrictions

However, the right to free speech isn’t absolute. The Supreme Court has established several categories of unprotected speech. Obscenity and defamation are two such categories. In this article, we focus on speech the Supreme Court calls “fighting words” and “true threats.”

The state generally has greater leeway to regulate and penalize unprotected speech. However, not all restrictions on unprotected speech are constitutional. This is particularly relevant if their reach extends to protected speech or if the restrictions involve content-based distinctions.

Similarly, not all restrictions on protected speech are unconstitutional.

Legal Standards

The Court has developed legal standards and frameworks for determining whether a government restriction on speech violates the First Amendment. Their application varies depending on the type of speech and circumstances involved.

These standards typically weigh the government interest served by the restriction against the First Amendment freedoms burdened by it. In these analyses, we commonly refer to government interests as state interests.

Strict scrutiny is the most difficult standard to meet. For a speech restriction to pass constitutional muster, it must serve a compelling state interest in the least restrictive manner.

Content-based restrictions are typically subject to a strict scrutiny standard of review. This is because, at its core, the constitutional right to free speech protects against government suppression of ideas.

Still, the Supreme Court has established certain categories of speech and associated protections precisely because of their content. Fighting words and true threats are two such unprotected categories.

Fighting Words

In 1942, the Court unanimously decided in  Chaplinsky v. New Hampshire that the First Amendment doesn’t protect fighting words. The Chaplinsky Court reviewed a conviction under state law. that criminalized the use of “fighting words.” The law defined fighting words as speech “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

The Court upheld the conviction and the statute, which it found to be sufficiently narrowly tailored. The opinion explains that the law defined and prohibited specific acts likely to disrupt the peace in public places. This was well within the state’s power.

The Court explained that fighting words aren’t protected because they play no crucial role in the free exchange of ideas and have minimal social value. As such, the public interest in maintaining order and morality far outweighs any benefit derived from their utterance.

Chaplinsky remains the prevailing standard, and the Court consistently cites 'fighting words' as a type of speech not protected. Yet, it has not affirmed any state action grounded in the Chaplinsky doctrine regarding fighting words.

In Cohen v. California (1971), the Court reversed Paul Cohen’s conviction for disturbing the peace. Cohen was arrested and convicted for wearing a jacket that said “Fuck the Draft” in a California courthouse. The Court overturned the conviction partly because the messaging didn’t constitute fighting words as it wasn’t directed at anyone personally.

Audience Reaction to Free Speech

The Court has since held that “speech cannot be restricted simply because it is upsetting or arouses contempt.”

In Terminiello v. Chicago (1949), the Supreme Court reviewed another conviction. Arthur Terminiello was an outspoken activist and provocative speaker whose speeches typically drew large crowds of supporters and protesters.

One such speech in Chicago sparked violence. The police arrested Terminiello, who was later convicted of disorderly conduct. He challenged the conviction on First Amendment grounds.

The Court overturned the conviction, explaining that the state can’t shut down speech because the audience finds it offensive. There is no “heckler’s veto” for controversial speech.

The government, indeed, has an interest in maintaining public order and safety. This state interest includes dealing with violent and unruly crowds. However, this interest must be balanced against First Amendment speech protections.

Thus, a controversial speaker can’t be penalized for saying things an audience doesn’t like. The Terminiello Court reminded that a “function of free speech under our system of government is to invite dispute.”

Political Speech/Hate Speech

Political speech and advocacy often involve riling up an audience. They are often accompanied by stirring and emotional appeals to unite and act for or against a common cause.

If such appeals don’t incite lawless action, they must be considered speech protected by the First Amendment.

Quoting Justice Holmes’s famous dissent in United States v. Schwimmer (1929), Justice Samuel Alito wrote in Matal v. Tam (2017) that “the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Accordingly, federal courts have held that the First Amendment protected the free speech rights of Nazis. After all, the unfettered exchange of ideas and public debate involving conflicting opinions is at the heart of free speech.

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. However, hate speech that causes tangible harm is generally punishable as a hate crime.

True Threats

In 1969, the Court distinguished true threats from political hyperbole in Watts v. United States. The Watts Court reviewed Robert Watts’s federal conviction. The relevant law criminalized any threat to kill or cause bodily harm to the American President.

Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."

The Court adhered closely to First Amendment principles when interpreting the law and overturned the conviction. It reasoned that Watts didn’t actually make a true threat but rather just engaged in political hyperbole.

In 2003, the Court clarified the meaning of true threats in Virginia v. Black. The Virginia Court reviewed a state law prohibiting cross-burning with the goal of intimidation. The Court said the state could ban intimidation as a “type of true threat” if the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

In light of our country’s history, the Court noted that cross-burning may constitute a true threat. However, it found that one provision in the Virginia statute violated the First Amendment. It allowed cross-burning to serve as prima facie evidence of intent to intimidate.

Cross-burnings carried out without an intent to intimidate are protected speech or expression. Thus, the provision’s reach went beyond unprotected speech. The Court invalidated it for overbreadth because the increased likelihood of prosecution under the provision chills the expression of constitutionally protected speech.

Social Media

The widespread use of social media has drastically increased incidents of speech perceived as threatening.

In Counterman v. Colorado (2023), the Court addressed one such matter. The Counterman Court also clarified the intent requirement for true threats.

Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman’s statements were true threats.

Specifically, it had applied an objective, “reasonable person” standard. But, the Court determined it should have used a subjective standard for intent.

The Court cited other unprotected speech decisions, including New York Times v. Sullivan. The New York Times Court’s decision established a subjective standard for proving the state of mind required for certain defamation matters.

The Counterman Court explained that the state should have used a subjective recklessness standard to evaluate whether Counterman knew or recklessly ignored that the recipient would perceive his statements as threats of violence.

In other words, the state needed to demonstrate that Counterman made such statements even though he knew the recipient would perceive them as threatening. But it didn’t. As a result, the Court vacated Counterman’s lower court conviction.

The frameworks established by the Supreme Court help identify categories of speech. This may help determine which standard of review applies. However, the Court’s approach to First Amendment matters isn’t purely categorical. As a result, the Court’s treatment of fighting words and true threats over the years provides us with invaluable insight into First Amendment jurisprudence.