Photo via VOX
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“You can’t yell ‘fire’ in a crowded theater.” If you went to school in America, you probably heard this line from your history or government teacher as they attempted to explain the limitations of freedom of speech. This cliché aims to demonstrate that, while the First Amendment protects an individual’s freedom of speech, these protections are not limitless. While the idea of completely free speech may be appealing, restrictions are necessary in maintaining order and safety. However, while trying to balance these two ideals, one must ultimately be placed at a higher value. This tension between order and freedom is the basis for a debate that has persisted for decades—hate speech. The anonymity of the internet specifically has made speaking your mind infinitely easier, and has led to its proliferation. In this day and age, when social and political tensions are high, people become incredibly polarized, with hate speech growing nationwide. Can or should the government ban hate speech? In short, no. Hate speech should not be banned or legislated upon by the government. Doing so would set dangerous precedents and send us barreling down a slippery slope, allowing for further restrictions and infringements upon individuals’ constitutional rights.
While there is no legal definition of “hate speech”, the United Nations describes it as “offensive discourse targeting a group or an individual based on inherent characteristics (such as race, religion, or gender) and that may threaten social peace.” To understand where hate speech sits legally, the landmark Supreme Court Case, Brandenburg v Ohio (1969) has guided this question for decades. This case set the precedent for distinguishing between protected and unprotected speech, specifically regarding speech that may be harmful or dangerous to others. The case ruled that “(1) speech can be prohibited if it is ‘directed at inciting or producing imminent lawless action’ and (2) it is ‘likely to incite or produce such action.’” This means that if speech is considered to cause illegal actions directly or is highly likely to do so, it is not protected. Because of this, even if speech is hateful, it remains protected under the First Amendment if it does not meet these criteria.
With the guardrails set in this case, it is essential to understand what the restriction on hate speech would achieve. Are further restrictions necessary, or do current precedents hold strong enough? In the current day, we as a society most often find ourselves looking toward the idea of banning hate speech following a violent or harmful event spurred on by hateful ideas and speech, especially if a well-known figure was involved. If actions are what start these conversations, then from this arises a question that must be asked: if hate speech leads to violent and dangerous actions, would it not fall under the ruling in Brandenburg v Ohio and be deemed unprotected speech? To apply this ruling to current-day events, we find ourselves wondering whether or not actions, such as the shooting of the Turning Point USA Co-Founder, Charlie Kirk, can be tied back to any specific, punishable speech. Can messages shared by Charlie Kirk or others in the public eye be directly tied to and be the cause of violence? As with all legal issues, there is no direct answer; however, we can pull out some broader themes and ideas. Many contend that, even though they do not partake in violent action themselves, those in the public eye who use their platform to spread messages deemed to be hateful are directly causing harm and hurting individuals. Arguing that those who spread hate speech and amplify hateful rhetoric are, in turn, responsible for the violence that occurs as a result, it is then reasoned that this speech should not be protected under the First Amendment. However, many others argue that these individuals are simply expressing their beliefs, and the government cannot punish them on the basis of their ideals and beliefs. While both opinions have merit, the latter must be focused on. The Government cannot punish people based on their beliefs; this is the crux of the First Amendment, and as soon as opinions become quantified, all other freedoms and rights are at stake.
While the idea of banning hate speech appears to be a positive reality, it is merely a fantasy because, unfortunately, our government and society were not set up in a way, nor are they in a position today, to impose such restrictions. If the United States were to take the leap and ban hate speech, whether that be making it illegal or punishable altogether, or broadening what the court defines as protected speech in Brandenburg, it would essentially be giving the government the green light to punish anyone who speaks out against it. Regardless of how hate speech is defined, the definition will be manipulated and spun to be construed as anyone who disagrees with this administration and its views. Even in countries that may be positioned in a manner that yields a more positive outcome with these bans, negative consequences occur and are fought against every day.
Many countries worldwide have laws banning or restricting hate speech, and, while this may seem enviable to many in the United States, it comes with many dangers and downsides that the American people and Government would not be prepared for. For example, many countries in Europe have laws limiting or prohibiting hate speech, most of which came about following World War II and the spread of anti-semitism and pro-Nazi rhetoric. However, these very laws that were created to protect individuals are now being used to target, silence, and punish those engaging in pro-Palestine Protests. This is just one of many examples of countries that, compared to the United States, are more structurally equipped to restrict hate speech and are able to twist these laws into justification to repress individual voices.
Free speech is under attack in America. The current administration is taking steps that are inhibiting everyone’s freedom of speech. Continuing with the example of Kirk, as we speak, schools are being “bullied….into taking disciplinary action against teachers who have criticized Charlie Kirk’s political views.” Preventing individuals, whether it be teachers, police officers, late-night show hosts, or even students, from thinking and speaking about what they believe and sharing their views openly is incredibly dangerous. In the wise words of Leo McGary from The West Wing, “I’m just not sure it’s right to legislate against how someone thinks.”
Looking at the realities of what is happening in the United States right now, and the parallels in European countries, the thought of applying similar laws around hate speech to the United States seems to be one of the most dangerous options. We are living in a country whose Government is going through every back channel, loophole, or even outright illegal action to stifle and silence those who speak in opposition. Adding laws that further limit speech and have backfired in other countries would produce an absolutely terrifying reality. As soon as anti-hate speech laws are put into place, they would become a machine for the Government to employ to rapidly silence those who disagree with them. All of a sudden, any type of speech against the government, or even just those in power, would be considered hate speech, and with that, freedom, civil liberties, and the democracy of America would be dead. Banning hate speech is a fairytale idea. In theory, it appears to be not only necessary but a positive act that would protect individuals and the country as a whole; however, in reality, it is more akin to a horror story. Banning hate speech is yet another significant step toward opening the floodgates of censorship, and even if it were to work out like many may dream, it would merely be placing a band-aid on the larger issues of political polarization.
Opposition, disagreement, and argument are the beginnings of change, social movements, and freedoms. Without the ability to have these things, life in the United States would look completely unrecognizable. We must find a way to prevent hate crimes. We must find a way to stop political violence. We must find a way to return to a society where individuals with opposing political views can engage in respectful discourse and create meaningful change and impact. The culture of politics, arguments, beliefs, and debate in America has shifted so drastically in the past, and society’s new systems and functions no longer support the realities of those days. But banning hate speech is not going to solve these issues. We don’t need to ban speech; we need stricter gun regulations. We don’t need to punish those who disagree with us; we need to pass the “No Political Enemies Act.” We don’t need to silence others’ voices; we need to find empathy, understanding, and civility. Until we do this, any resolutions about banning hate speech are pointless.
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This article was edited by Brett Poggi and Amethyst Kirwin.
Lauren Gracia 
Cooper Toland 
Anita Boniface