Hate Speech IS Protected by the First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” – First Amendment to the U.S. Constitution


The language of the First Amendment to the U.S. Constitution is clear, especially when it comes to freedom of speech. Unfortunately, many politicians and their friends in the media are on a crusade to shut down that freedom.  

Recently, former Vermont governor and infamous former Democratic Presidential candidate Howard Dean tweeted out this brilliant nonsense in response to Ann Coulter’s scheduled speech at Berkeley:



In today’s America, it is not hard to understand how Mr. Dean believes such a thing, but the idea that “hate speech” isn’t protected is by the First Amendment in blatantly false.  The First Amendment was written to protect the least among us, especially those with opposing views. Even jerks like Ann Coulter, as Anthony L. Fisher recently wrote for The Week:


“To be clear, there are jerks out there who have no desire to engage in good faith debating and who profit off of deliberately causing offense, the receipt of which only makes them more popular with their audiences. They promote noxious ideas and stand on “free speech” the way a child would claim to be standing on “base” in a backyard game of tag. Coulter is one of these jerks…

These characters might not “deserve” free speech, but they are entitled to it. Rights are not earned by the righteousness of one’s values. They’re just rights. And the right to freedom of expression is the tool that cultivated the fight to win every civil right in this country’s history.”


The First Amendment protects the right to freely express your beliefs, even if they are widely opposed. As Fisher noted, it is this freedom that has given Americans the ability to achieve the broad range of civil rights we enjoy today.

Without freedom of speech, Americans wouldn’t have the ability to speak out against our government for fear of retribution by the political class and their allies. It is exactly what the Founding Fathers experienced under the British crown, and it is precisely why the freedom of speech was secured in the First Amendment.

Following Mr. Dean’s careless remarks there was an understandable backlash from constitutionalists and conservatives alike, so Dean did what any reasonable American would do in the same situation. . . he doubled down.

Citing three Supreme Court cases, Mr. Dean continued to insist that hate speech is not protected by the First Amendment:


“One, the most recent, a John Roberts opinion, the Phelps people, that church out in Kansas, had a right to picket horrible offensive signs at military funerals. Well, two, in 2002, the Supreme Court said cross burning was illegal because it could incite violence. And three, Chaplinsky, the Chaplinsky case in 1942 said that speech was not permitted if it included fighting words that were likely to incite violence.”


Mr. Dean starts off on the wrong foot by citing the most recent Supreme Court case, Snyder v. Phelps, in which the Supreme Court ruled 8-1 in favor of the horrible people at Westboro Baptist Church and their freedom to disgrace military funerals with hateful remarks and slogans. If their right to use hate speech to degrade military families laying their loved ones to rest is constitutionally protected, then so is Ann Coulter’s right to give a stupid speech to 15 college Republicans.

In the cross-burning case, Virginia v. Black, the Supreme Court decided to strike down an existing state law that made cross-burning an intimidation crime. According to the decision, in order for cross-burning to be a crime, prosecutors would have to prove it was done as a threat. The bottom line is unless Ann Coulter got on stage at Berkeley and criminally threatened someone or incited violence, her speech is protected by the First Amendment.

The third case, Chaplinsky v. New Hampshire, involved a man who was protesting WWII by handing out anti-war materials and was arrested when a riot broke out he was identified as the source of the unrest. The case introduced “fighting words” to the legal lexicon, but according to Fisher, it is deceitful for Dean to cite Chaplinsky in this way:


“Dean’s citing of Chaplinsky ignores the history of the Supreme Court repeatedly clarifying and narrowing the definition of “fighting words,” as well as the fact that the Court has never cited the case as a precedent to curtail freedom of speech. In fact, some legal scholars even consider the fighting words exception to be for all intents and purposes a pile of dead letters, if not explicitly overturned by the Court.”


Hate speech is protected by the First Amendment of the U.S. Constitution because it is precisely the type of controversial speech our Founding Fathers knew would be important to protecting political minorities – without it Americans would not have the ability to protect our civil rights and liberties.

Howard Dean and his liberal ilk are flat out wrong when it comes to hate speech and the First Amendment, but they have slowly been moving the needle in the wrong direction to restrict our right to free expression.

I’m glad the Founding Fathers had the foresight to protect us from ourselves, but it is up to us to ensure these freedoms are secure for our children and grandchildren. Please make a generous tax-deductible donation to America’s Foundation for Law & Liberty – so we can continue to protect Americans right to free expression.

– Michael Clayton