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Should the First Amendment cover racism and hate speech?

By Talia Klein Perez
 Getty Images: David McNew
*Updated 2023
In an era of continued racial and political tension, increased hate crimes, and rising antisemitism, when celebrities like Kanye West post about going “death con3 on Jews” and US Vice President Kamala Harris is the continuous target of hate-filled and sexist statements from others on social media, one has to wonder where the First Amendment comes into play. Incendiary speech is on the rise, and with it, threats and even associated acts of violence. While the First Amendment legally protects the freedom of religion, speech, press, petition, and assembly, can it be interpreted to include racism and hate speech as well? Or, should the First Amendment be understood as protecting Americans’ rights to speak and act, but within boundaries, which leaves racism and hate speech out of its protection?
Let’s examine why the First Amendment should and should not be interpreted to include racism and hate speech.


Racism and hate speech should be understood as protected by the First Amendment


Who draws the line?

If all speech is protected by the First Amendment, then there is less room for government restrictions. On the other hand, if we allow the government to regulate free speech, then we open the door for greater government involvement in every aspect of our lives. This, much like McCarthyism, which sought to eradicate values viewed as a threat to the American way of life, would wind up as a grandiose witch hunt and would likely hurt America in the long run. Moreover, democracy is not measured by its mainstream, law-abiding citizens. Democracy allows people to go out against its modes and norms. When we shut down what we are not comfortable hearing, that’s a dictatorship.


Why bother defending something indefensible?

It’s hard to stand up and defend the morally repugnant expressions of racists and haters. This is why so many people raised their eyebrows after learning that former President Trumped approved of the rioters’ chanting “Hang Mike Pence” during their attack on the US Capital on January 6, 2021, and earlier in 2017, after he equated white nationalist Neo-Nazis with left-wing protestors and said there were “very fine people” on both sides of the “Unite the Right” rally in Charlottesville. In certain circumstances, it is pretty clear that what extremists are doing or saying is wrong. However, trying to outlaw hate-driven intimidation efforts or rhetoric may not work, just ask an African-American woman from Michigan who has been trying unsuccessfully to push through anti-intimidation laws after her white neighbor put up a KKK flag and was not charged with any crime. Such efforts may not even change the way people think. A look beyond the law is needed, and measures such as raising awareness and launching education programs, and changing policy should be taken to root out hate and teach tolerance.


Inciting a call to civil war

The First Amendment, as it is understood today, protects people’s right to say what they want, not do what they want. Free speech does not absolve people from responsibility for their actions. Aristotle believed that the law binds men together into a “cohesive and just community.” However, in today’s more Libertarian America, the law must be upheld as is to keep minimal order, without inciting more hatred and aggression. It is not unthinkable to assume that banning some voices by law would just make those voices fester in darkness, rather than disappear. Every action has a reaction, and excluding extreme voices might push people to a bigger clash than the one we are seeing.


Racism and hate speech should not be protected by the First Amendment


The First Amendment should protect all

The U.S. Constitution aims to shape the American nation and give it character. It is the everlasting and timeless written spirit of the United States. Let’s look at the Founding Fathers, however questionable their personal lives and decisions were back then regarding racism. Did they think that racism should be included in the Constitution? It’s fairly evident that the answer is no. The First Amendment is not about speech, it is meant to ensure that those inhabiting America are safe and can express themselves as they see fit, which the Biden administration is advocating through its United We Stand Summit, which aims to work toward preventing and/or countering the effects of hate-fueled violence in society. American ethos is that of a melting pot; being multiracial is one of its core features. As such, all members of American society should be protected by the First Amendment – and safe from hate.


Words hurt – and infringe on our right to safety

Those who commit criminal acts are tried and sentenced. It goes without saying that those who commit hateful and racist acts or articulate slurs should be penalized as well. Hate speech is violent by nature and can cause direct and indirect physical and psychological harm. Professor Lisa Feldman Barrett of Northeastern University took a scientific approach to understand how hate speech affects the human brain. She explained that “if words can cause stress, and if prolonged stress can cause physical harm, then certain types of speech can be a form of violence.”

Words also create an atmosphere that incites physical harm, as evidenced in the systematic murdering of millions at the hands of the Nazis, made possible after propaganda laid the groundwork for hate. Some offensive remarks may seem harmless, but they can snowball into more volatile forms. Once speech reaches an extreme, it becomes too late to avoid its dangerous consequences.


A red line must be drawn for hateful speech and conduct

The purpose of the law is not just to regulate bureaucracies, but also to establish common norms and values. On a dynamic issue such as free speech, where different interpretations have far-reaching implications on character and on the safety of its citizens, the law needs to take a stand. The government needs to draw a red line on principle against hatred and intolerance. The “value-neutral state,” i.e., a country that does not take a stand, as described by Jeremy Waldron in his influential book, is detrimental. If America is to remain the leader of the free world, tolerance, freedom, and respect must be distinguished from hatred, racism, and acts of violence.


The Bottom Line: Excluding racism and hate speech from the free speech protected under the First Amendment of the US Constitution could cause the government to cross a line and may actually incite more racism and hate. However, the Founding Fathers would have wanted everyone to be protected under this Amendment, and hate speech is threatening to people’s safety. How do you see it? Is the First Amendment there to protect free speech or American citizens? Should it include race and hate speech or not?

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