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. The article shed light on what free speech constitutes. we should be able to express ourselves with out suppressing others. I liked the fact this article considered all the civil rights activist that were unjustly murdered due to there attempt to gain freedom of speech. the protection of terrorist groups under the first amendment has had a harmful impact on many American citizens and especially people of color. As a country I believe we should take a deeper look into what should truly be acceptable as free speech.

  2. I have heard this argument before. In my opinion, hate speech should not be protected under the First Amendment. Especially, when it comes to the possibility of violence towards a certain group or person. Yes, the first amendment is important to creating a society that isn’t a totalitarian dictatorship. It is my opinion that harming others isn’t okay, even if it is through speech. Speech is powerful and can lead to violence.

  3. This article caught my eye very quickly when creeping up on new articles to read. On social media today there’s a lot of radical people that justify their actions via the 1st Amendment. I’m of the opinion that hate speech shouldn’t be protected. If you say something with full intent to hurt another person, you shouldn’t get the satisfaction that what you said is protected. Sadly, this kind of speech is protected, though I’m happy that big companies such as YouTube, Amazon, and Twitter have policies against hate speech. I know for a fact YouTube cracks down on radical speech due to being on the platform, and that gives me reassurance that even companies can care.

  4. This article quickly caught my attention because it spoke on the amendments. I like learning about politics and law and these sort of articles. I think an important line in this article was “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.” Our freedom of speech in America is extremely important because it gives us the right to express ourselves in many ways and is one of the very reasons why this country is amazing but at the same time many people use it in harmful ways and overuse it in negative aspects.

  5. I’m glad I read this article as it made me realize that I was uneducated on this topic. I knew this was a controversy to which I had an opinion on, but I was unaware that there are categories of speech that are not protected by the First Amendment. This list of categories includes child pornography and true threats, 2 that particularly stood out to me. This really made me grateful that this kind of speech is not acceptable, even in America, and made me think of other categories of speech that are currently the topic of debate. There are many examples of hate speech being protected under the First Amendment, but just because you’re technically allowed to say it does not mean you should. Yes, you have the right to express your opinion no matter how unpopular it is but hate speech should not be protected. Having common decency, respect, and giving dignity to all individuals, regardless or race or ethnicity, should be prioritized instead of using the First Amendment as your shield. I believe free speech comes with responsibilities and justifying hate speech will only compromise the values the First Amendment carries.

  6. The second amendment, in my opinion, does not entitle others to push their own beliefs on others. Unfortunately, this is a down fall to the explosive use of social media. Anyone can say what they want on social media. Problems occur when action is taken based on the use of free speech, due to the exposure of false pretenses. This is were prejudice becomes discrimination. Everyone is titled to an opinion, however, freedom of speech should not be used as a platform to discriminate or belittle others. Referring to the article, “First Amendment fundamentalists across the political spectrum raised “free speech” concerns, claiming that the social media bans were a slippery slope.” I’m not sure how we even begin to place regulation on what people are posting. In the grand scope of things, for issues to resolve, there would have to be a mindset shift across the nation. A mindset were meaningful conversations come to play that do not ultimately have to end in a debate.

  7. This article is really interesting because it talks about an important topic which is protecting hate Speech: Using the Notion of Free Speech to Justify Racial Discrimination. First of all, I think that Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognized as a human right in the Universal Declaration of Human Rights and international human rights law by the United Nations. Many countries have constitutional law that protects free speech. Terms like free speech, freedom of speech, and freedom of expression are used interchangeably in political discourse. However, it is said in the article “that free speech should not be used as a license to harm others or incite violence.” Because some people are taking advantage of the freedom of speech to discriminate or upload hate speech on the internet which is offensive and threatens social peace. I think websites should start censoring hate speech because it is a necessity to calm the political tension in the United States and reduce the negativity both sides feel for the other. The first website that comes to my mind is TikTok I think it is one of the websites that has a lot of hate speech and that is too bad because Hate speech and hateful behavior attack, threaten, dehumanize, or degrade an individual or group. That plays negative impact in our society.

  8. “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” That’s a quote from The American President that always sticks out in my mind when discussing free speech. That being said, social media platforms are not just speech. They are companies and public forums, not the government, and they can decide how they want to run those companies. I believe that social media has also helped a great deal with being able to put these hate groups and people that support them out in the public eye, which allows society at large to deal with them in their own way. Whether that be people losing their jobs or even criminal proceedings based on pictures that are found online. I do not have the answer but I do not believe that hate should be given a pass based simply on the idea of free speech. It seems very apparent to me that all of this hate speech started to spike in 2016 and has continued. It is up to all of us to stand up against this hate and shine a light on it. I am reminded of an MLK quote. “In the end, we will not remember the words of our enemies, but the silence of our friends.” Being passive does not meet the standard we should have for how we treat each other.

  9. I got to take a close, critical look at the First Amendment in my legal environment of business class at NKU, so this article interested me. I am torn in regard to placing limits on any of the amendments in the Bill of Rights; on the one hand, using freedom of speech to perpetuate hatred and prejudice against any group is wrong. It takes something beautiful and powerful and important, and basically turns it into a shield to hide behind. Conversely, however, although the First Amendment protects one against government sponsored reprisals, there are still personal consequences to people’s actions and expressions. For example, the man who burned an effigy of Governor Beshear on the lawn of the governor’s mansion during the protests against the Covid-19 lockdown lost his job due to public backlash and is almost unemployable in any public-facing capacity. Though he wasn’t tried by the government, he certainly lost his trial in the court of public opinion. Regarding “censorship” on social media sites, in my view it is the prerogative of the company that hosts or owns the website what content it wishes to allow on its platform. Granted, that may create an echo chamber type atmosphere where people are only exposed to opinions that match their own, it is that company’s right to determine what is correct for their business. In the end, I suppose that I remain optimistic that the social landscape continues progressing to a point at which bigots and misogynists face such extreme public backlash for spewing their hatred that they are afraid to open their mouths (or touch their keyboards) for fear of becoming a pariah. I would rather society stand up and fight back than having to get the government involved.

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