Yes, hate speech is protected speech

“You can’t shout ‘fire’ in a crowded theater.”

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes, Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Shenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court — often led by Holmes himself — retreated from this terrible precedent, eventually ruling that speech can’t be punished as “incitement” unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes’ usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to 1st Amendment protections. As I said before that’s not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the 1st Amendment.

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