The way we interpret the First Amendment need not be simplistic and empty of nuance, and was not always so. The Supreme Court unanimously held over eighty years ago that “those words which by their very utterance inflict injury … are no essential part of any exposition of ideas.” And in 1952 the Court upheld an Illinois statute punishing “false or malicious defamation of racial and religious groups.” These rulings, while never officially reversed, have shrunk to historical trinkets. But they mark a range of the possible, where one can be a staunch defender of full-throated discourse but still recognize the difference between dialogue and vomitus.

When frat boys delight in singing about lynching in Oklahoma, or loop a noose around the statue of James Meredith at Ole Miss, or publish a “rape guide” at Dartmouth, the First Amendment tells us our remedy to these expressions of hatred is to grimace and bear it. Or ignore it. Or speak out against it. But punish it we cannot. That would go too far; we would slide down the slippery slope to tyranny.

Those not targeted by the speech can sit back and recite how distasteful such racism or sexism is, and isn’t it too bad so little can be done. Meanwhile, those targeted by the speech are forced to speak out, yet again, to reassert their right to be treated equally, to be free to learn or work or live in an environment that does not threaten them with violence. The First Amendment’s reliance on counterspeech as remedy forces the most marginalized among us to bear the costs of the bigots’ speech. Counterspeech is exhausting and distracting, but if you are the target of hatred you have little choice. “Speak up! Remind us why you should not be lynched.” “Speak up! Remind us why you should not be raped.” You can stay silent, but that internalizes the taunt. The First Amendment tells us the government cannot force us either to remain silent or to speak, but its reliance on counterspeech effectively forces that very choice onto victims of hate speech.