Is America’s expansive free speech tradition just another tool for perpetuating oppression that should be curtailed when it offends a minority group, as campus activists and some on the media Left have been arguing increasingly loudly for the past few years? Not according to the Supreme Court, which issued a unanimous opinion affirming that “hate speech” has the full protection of the First Amendment of the United States Constitution.
Eugene Volokh excerpts the key passages:
From today’s opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the “Slants” case:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:
A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
The pro-free speech consensus has been recently showing signs of political frailty as of late—Howard Dean and others on the Left, for example, justified the no-platforming of Ann Coulter and other acts of campus intolerance. And polls show that Millennials are less committed to free speech than older generations.
But this decision is a reminder that the full spectrum of the judicial establishment—from Samuel Alito to social justice icon Ruth Bader Ginsburg—agrees that the American Constitution does not allow the suppression of opinions just because some people find them hateful, and that creating “exceptions” to this rule would ultimately put everyone’s liberty at risk.
Rising polarization and distrust are making our political discourse more unpleasant. This will create growing pressure for legal and bureaucratic codes that control what can and can’t be said, to artificially impose order on a disordered politics and a fraying social fabric. The Constitution tells us that we must resist this urge. Better to work out our differences with politics—and that means vituperative and sometimes hateful public arguments—rather than taking the tempting but ultimately more destructive route of allowing the state to erase unpopular views.