Alana McBane
Fundamental to an American’s sense of liberties is the well-guarded right to the freedom of speech, as enshrined by the First Amendment. The impulse to protect this right to almost its absolute emanates from this nation’s founding moments in which the American Revolution was a direct result of an oppressive regime that hindered individual liberties, including free speech.[1] While it is clear this right deserves legal protections with ample “breathing space”,[2] it is not clear that free speech necessarily entails the right to use hate speech.
The possibility of regulating hate speech within the bounds of a legal system that still prioritizes free speech[3] is made a reality by the European Union (“EU”). Drawing on Articles 10 and 14 of the European Convention on Human Rights, the EU guarantees free expression while simultaneously requiring each of its Member States to criminalize hate speech on specific grounds.[4] In recognition of its dark history stained by Nazism, the EU acknowledges there is a certain responsibility to actively distance itself from racial hatred, driving its efforts to curb hate speech.[5] But isn’t this rationale that dangerous ideologies entrenched in a nation’s past necessitate firm resistance, equally, if not more, applicable to the United States?
Although interpretations of the First Amendment tend to liberally extend its protections to prevent artificial diminution of the “marketplace of ideas”,[6] free speech does not exist without limits. Similar to how the EU criminalizes hate speech,[7] the United States criminalizes incitement,[8] fighting words,[9] true threats,[10] with the sharp distinction of requiring the potential for violence to be intended seriously or imminent. These kinds of expressions are considered exceptions to the First Amendment’s breadth and may be subject to regulation that serves governmental interests in preventing violence or public disorder arising out of feared violence.[11] However, determining whether a particular expression is without constitutional safeguards, and therefore punishable, requires fact-intensive analysis. This ensures that political speech, a right held to the highest esteem, is not chilled.[12] If careful judicial review can differentiate statements that constitute true threats from “political hyperbole” that in contrast is free speech,[13] are courts really unable to apply this same level of nuance to hate speech?
A core purpose underlying the First Amendment is to preserve the ability to freely criticize the government, not sanction expressions that threaten the safety and dignity of our fellow community members. Furthermore, it is well-accepted by the courts that under specific circumstances the right to free speech can be outweighed by other societal interests, such as public safety, morality, and national security.[14] While unpleasant conversations based in offensive statements about race can ultimately be political in nature, other times the use of racial epithets involves nothing more than the desire to provoke violence and disharmony. Is the latter really contributing to our nation’s political discourse or marketplace of ideas and thus deserving of consideration as a First Amendment right? Rather than refusing to strike an appropriate balance between free speech and hate speech, we should follow the EU’s example and start taking a hard look at our historical context to promote fuller protections of all individuals’ basic liberties.
[1] Polona Car & Beatrix Immenkamp, Hate Speech: Comparing the US and EU Approaches, Eur. Parliamentary Rsch. Serv. 2 (June 2025), https://www.europarl.europa.eu/RegData/etudes/BRIE/2025/772890/EPRS_BRI(2025)772890_EN.pdf; Eileen Reynolds, We the Protestors: How America’s Founders Forged the Freedom of (Ugly, Vitriolic) Speech, N.Y.U. (June 30, 2016), https://www.nyu.edu/about/news-publications/news/2016/june/stephen-solomon-on-revolutionary-dissent.html#:~:text=Their%20right%20to%20do%20so,the%20government%20or%20its%20officials.
[2] See, e.g., NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).
[3] Wolf Zinn, Where do the Limits on Freedom of Expression Begin?, deutschland.de (May 19, 2025), https://www.deutschland.de/en/topic/politics/freedom-of-expression-germany-law-j-d-vance (“Globally speaking, Germany is undoubtedly regarded as a democratic constitutional state that allows great freedom of speech. In international rankings on freedom of the press and freedom of expression, Germany regularly occupies one of the top places – 10th in the 2024 World Press Freedom Index by Reporters Without Borders, for instance.”).
[4] Car & Immenkamp, supra note 1, at 4.
[5] Id.; see also Eva Nave, Hate Speech, Historical Oppressions, and European Human Rights, 29 Buff. Hum. Rts. L. Rev. 1, 25 (2023).
[6] See, e.g., First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
[7] Car & Immenkamp, supra note 1, at 5 (“prohibits ‘publicly inciting to violence or hatred against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin’.”).
[8] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (holding that states may regulate the use of advocacy if “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”).
[9] Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (holding that the punishment of fighting words, “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”, does not violate the First Amendment).
[10] Virginia v. Black, 538 U.S. 343, 359 (2003) (defining “true threats” as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” and are not protected by the First Amendment).
[11] Car & Immenkamp, supra note 1, at 3.
[12] See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 915 (1982) (acknowledging that “political speech l[ies] at the core of the First Amendment.”).
[13] Watts v. United States, 394 U.S. 705, 707 (1969) (“What is a threat must be distinguished from what is constitutionally protected speech . . . [and a] crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat . . .”).
[14] See Brandenburg v. Ohio, 395 U.S. 444 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Virginia v. Black, 538 U.S. 343 (2003). The EU also frames regulation of free expression as “in the interest, among others, ‘of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others’.”). Car & Immenkamp, supra note 1, at 1.