Protecting Hate Speech: Using the Notion of Free Speech to Justify Racial Discrimination

Dr. David Childs, D.D., Ph.D.
Northern Kentucky University

In a 2021 article entitled “Banning White Supremacy Isn’t Censorship, It’s Accountability” Malkia Devich-Cyrilideasjan provides insight on the free speech debate and the degree that it is misused to justify racism online and on other public platforms. Devich-Cyrilideasjan is critical of extremist groups who use the notion of free speech to prop up their hate speech. He argues that “claiming that de-platforming racists violates First Amendment rights shows a distorted understanding of how speech, race, and power work online.” He goes on to point out that in light of the January 6, 2021 insurrection at the Capitol Building in Washington, DC (Which was mostly an angry mob of white males), social media giants such as Facebook and Twitter blocked former President Donald Trump’s accounts. Devich-Cyrilideasjan goes on to say:

“YouTube followed with a temporary ban… According to these platforms, Trump’s dangerous pattern of behavior violated their content management rules. Shortly after, Amazon Web Services ended its hosting support for the neo-Nazi online haven Parler. Parler countered with a lawsuit alleging that Amazon’s decision was an antitrust violation motivated by political animus, which the courts readily rejected.

A study conducted by research firm Zignal Labs found that online disinformation, particularly about election fraud, fell by an incredible 73 percent in the week after Twitter’s suspension of Trump’s social media account. Online forums for Trump supporters are now fractured and weakened. But many reacted to the social media bans with outrage. First Amendment fundamentalists across the political spectrum raised “free speech” concerns, claiming that the social media bans were a slippery slope. Though they’re being used to hold the powerful to account today, the argument goes, they could be used to repress minority groups in the future. Others worried that a digital oligarchy of big tech companies like Facebook, Twitter, Google, Apple, and Amazon with the unchecked power to silence individuals represents a threat to democracy.”

Wendy Kenigsberg/University Photography

So on the one hand, many people are grateful that the presence of hate speech in the social media world has been challenged, others see the bans as an attack on American fundamental rights, and more specifically as an attack on free speech. As such, we would like to republish an article previously written on the Democracy and Me platform that does a deeper dive into the free speech debate.

Originally published April 27, 2019 as “Does Free Speech Have Limitations”

First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Today’s post will focus on the exercise of free speech. Does the free speech clause cover any type of speech one feels at liberty to share publicly? What are the limitations to free speech? In the times that we live in it seems that the bounds of free speech are constantly being tested. Many white supremacist and other hate groups are creating propaganda, websites and giving speeches that disparage racial minorities; but they are often protected by the constitution. What should be the limits on freedom of speech? On the one hand, it is a great privilege to be able to express one’s opinion on any political or social issue without fear of repercussions (I.e. Being jailed, tortured or killed). True freedom of expression is one of the great fundamental rights people of the United States enjoy that those in many other countries do not. Indeed, our freedom of speech is one of the factors that make us not a totalitarian dictatorship. But on the other hand, that free speech should not be used as a license to harm others or incite violence. Can recent acts of violence perpetrated by hate groups in public spaces be somehow traced to the free flow of hate speech and political rhetoric in the public arena?

Trademark Infringement or First Amendment Right of Freedom of Speech?

On Hate Speech
As it stands, hate speech is protected under the US Constitution. Currently, the United States “does not have hate speech laws, since American courts have repeatedly ruled that laws criminalizing hate speech violate the guarantee to freedom of speech contained in the First Amendment to the U.S. Constitution.” In other words, legally a person cannot lose their rights, livelihood or their life at the hands of the government because of something they say. Although, these things have happened to people throughout American history unofficially, officially it is supposed to be illegal. Yes, in the United States, political assassinations have taken place. That is, people who know or say too much or political opponents have been black balled or imprisoned by the hands of local, state and the federal government. Here is a partial list of assassinated American politicians. Think of all of the individuals during the Civil Rights movement who were killed because they spoke out or took a stand. Here is a list of Civil Rights martyrs compiled by the Southern Poverty Law Center. Many domestic terrorist groups in the United States such as the KKK have long been protected by free speech rights. Having said that, the Supreme Court puts forth instances where free speech has limitations.

United States Free Speech Exceptions
There are certain categories of speech that are not protected by the First Amendment. Due to various precedents set forth by the Supreme Court and their interpretation of the First Amendment, the Court has articulated instances where there are limitations on free speech.

“Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising. Along with communicative restrictions, less protection is afforded for uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the mail, airwaves, legal bar, military, prisons, and immigration.”

As our country becomes more and more divided, a lot of the ideological battles play out in public spaces such as k-12 schools, college campuses, on television and movies, and in Washington. But in recent times, debates and public expression has been taking place on websites and on social media platforms such as Facebook, Twitter, Snap chat, Instagram and Pinterest. Much of the social media freedom of expression and debate is promising as it gives people a voice who may not have otherwise had one. But on the other hand, there seems to be a troubling rise of speech that advocates violence and hate. These factors cause Americans to think deeper about what type of speech is protected and what is not.  

Resources/Lesson Plans
Freedom of Speech and of the Press Lesson Plans for the Classroom
Freedom of Speech? A Lesson on Understanding the Protections and Limits of the First Amendment Image
The dilemma of protecting free speech – Lesson Plan
You Can’t Say That in School- Lesson Plan
Respecting Freedom of Speech

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?
United States Free Speech Exceptions
Hate Speech
Freedom of Expression
Your Right to Free Expression
The Ongoing Challenge to Define Free Speech
Free Speech and Its Present Crisis
Hate Speech and Hate Crime

Discussion Questions
What are the benefits of free speech in a democracy?
Should there be any curb on free speech?
Are there dangers to calling something hate speech?
How does one determine what is classified as hate speech?
Can the notion of hate speech be used as a political weapon?

Questions for Educators
How might you generate positive and meaningful discussions in your classroom about free speech?
What might be challenges to a free speech discussion in your classroom?   
Please share what resources you find useful for your teaching.

Feedback? Questions?
We are open to feedback and discussion. If you see any typos or grammatical errors please feel free to email the author and editor at the address below:


  1. Hate speech is a big part of our society. Although it is not a good thing. Freedom of speech is protecting hate speech. There should be laws against hate speech. Then that would take away the rights of freedom of speech. I do feel like the article explains freedom of speech and tells you what hate speech is. This is a important article to read to better understand hate speech and how it is protected.

  2. This has always been an interesting topic to me. Where do we draw the line on free speech? It seems as if recently we have had an increase of people bringing issues of free speech to court. In these days, everyone has the ability to put any words they want onto the internet. When the constitution was written, they weren’t dealing with social media. I love that social media cites are starting to crack down on hate speech. You do have the right to free speech, but those cites should have the right to restrict what is on their platform.

  3. This article is a great read about understanding what hate speech is and how it is protected in America. The first amendment (also listed in the article) protects freedom of speech for all members of our country. While there are no hate speech laws currently passed in the United States, a person cannot lose their rights or livelihood from the government just for what they say. There are a few exceptions, such as threats and speech that violates intellectual property law. Overall, this article gives a great explanation of hate speech, and how the U.S. constitution discusses freedom of speech.

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