Calling out "hate speech" too often invites censorship

Consistent with the fundamental “viewpoint neutrality” principle, government may not punish “hate speech” (or speech conveying any particular point of view) merely because some of us—even the vast majority of us—consider its views or ideas objectionable or even abhorrent. Viewpoint-based restrictions pose the greatest danger to the core value underlying the First Amendment: our right as individuals to make our own choices about what ideas we choose to express, receive, and believe. Because they distort public debate, viewpoint-based regulations are also antithetical to our democratic political system. Additionally, they violate equality principles because, reflecting majoritarian political pressures, they generally target unpopular, minority, and dissenting views and speakers.

Censorship of “hate speech” is also unjustified by the generalized fear that it might indirectly contribute to future negative conduct by some people who hear or read it. Rather, government may punish speech only when it directly causes specific, imminent serious harm—for example, by satisfying the Supreme Court’s appropriately strict tests for constituting a punishable threat, incitement, or harassment. Moreover, the court has rebuffed the “hecklers’ veto,” not permitting government to censor speech when its opponents threaten violence. Not coincidentally, the court forged these speech-protective principles in the cauldron of the civil rights movement; many officials sought to justify suppressing its advocacy by citing potential harms not directly caused by the speakers, including feared violent reactions by its opponents.