Why “Hate Speech” is America’s Most Dangerous Legal Fiction
The assassination of Charlie Kirk has exposed something more troubling than the violence that claimed his life—it has revealed how quickly Americans, including those who claim to champion liberty, abandon their most sacred principles when fear grips their hearts. In the aftermath of this tragedy, we witness the disturbing spectacle of conservatives embracing the very censorship apparatus they once fought against, with Attorney General Pam Bondi declaring there is free speech and then there’s hate speech—a distinction that exists nowhere in American law and contradicts the foundational wisdom our nation was built upon. This moment demands we remember a fundamental truth: in America, “hate speech” is not merely absent from our legal code—it is a concept so antithetical to our constitutional order that its very invocation represents a betrayal of the American experiment itself.
The Founders’ Radical Gamble
When James Madison penned the First Amendment in 1791, he was not merely protecting pleasant conversation or agreeable political discourse. The Founders understood something profound about human nature and democratic governance: that the moment government becomes the arbiter of acceptable thought, liberty dies. This principle emerged from hard-won experience with British sedition laws and colonial censorship, where criticism of authority was treated as a crime against the state itself. The early test of this commitment came swiftly. In 1798, President John Adams signed the Sedition Act, which criminalized “false, scandalous and malicious writing” against the government. This law, ostensibly passed to protect national security as war with France loomed, was used to prosecute newspaper editors who dared criticize Federalist policies. At least 26 people faced federal prosecution, including Vermont publisher Matthew Lyon, a sitting congressman who was convicted for publishing a letter critical of Adams. The American people’s response was decisive. The Sedition Act became a central issue in the election of 1800, contributing to Adams’ defeat and the Democratic-Republican victory that Thomas Jefferson called the “Revolution of 1800”. The act was allowed to expire, and its legacy became a cautionary tale about the dangers of government-regulated speech. Jefferson himself declared it was “safe to tolerate error of opinion… where reason is left free to combat it”.
America’s commitment to unfettered speech was tested and refined through our darkest chapters. During World War I, the Espionage Act of 1917 brought unprecedented censorship. Socialist leader Eugene Debs was sentenced to ten years in prison for criticizing the war. Pacifist publications were banned from the mail. The government established a Censorship Board that included propaganda chief George Creel, revealing how easily “security” measures become tools of thought control. From this repression emerged one of the most important judicial opinions in American history. In Abrams v. United States (1919), Justice Oliver Wendell Holmes articulated his marketplace of ideas theory in dissent, writing that “the best test of truth is the power of the thought to get itself accepted in the competition of the market”. Holmes understood that even speech we find abhorrent must be protected, because “truth is the only ground upon which their wishes safely can be carried out”. This principle was tested again during the Red Scares, when fear of communism led to widespread persecution of Americans for their political beliefs. Senator Joseph McCarthy’s tactics were so abusive that Republican Senator Margaret Chase Smith courageously delivered a “Declaration of Conscience” in 1950, calling for protection of “the right to criticize; the right to hold unpopular beliefs; the right to protest; the right of independent thought”. She warned that “freedom of speech is not what it used to be in America” and condemned the “cancerous tentacles of ‘know nothing, suspect everything’ attitudes”.
The Japanese American internment during World War II provided another stark reminder of how quickly constitutional rights can vanish when fear overrides principle. Over 120,000 people of Japanese ancestry, two-thirds of them American citizens, were imprisoned without charges, hearings, or due process. The Supreme Court shamefully upheld this action in Korematsu v. United States (1944), a decision now universally recognized as one of the Court’s greatest failures. It was not until 1988 that Congress formally apologized and provided reparations, acknowledging that “racial prejudice, war hysteria, and a failure of political leadership” had corrupted American justice.
The Civil Rights Revolution and Free Speech
The modern framework for American free speech law emerged not from comfortable academic debates, but from the crucible of the Civil Rights Movement. When Southern officials used libel laws to silence civil rights activists, the Supreme Court was forced to confront the tension between protecting reputation and preserving democracy itself. The pivotal case was New York Times Co. v. Sullivan (1964), arising from an advertisement supporting civil rights workers. L.B. Sullivan, a Montgomery police commissioner, sued the Times for libel over an ad that criticized police conduct without mentioning him by name. The Alabama courts awarded Sullivan $500,000—a crushing sum designed to intimidate the press into silence.
Justice William Brennan’s unanimous opinion for the Supreme Court revolutionized free speech law. The Court declared that criticism of government officials receives the highest constitutional protection, establishing that public officials must prove “actual malice”—knowledge of falsity or reckless disregard for the truth—to win defamation cases. More importantly, Brennan articulated America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”. This language, forged in the struggle for racial equality, became the bedrock of modern First Amendment jurisprudence. The Court recognized that protecting democracy required protecting even harsh criticism of those in power.
The definitive statement on American free speech law came in Brandenburg v. Ohio (1969), a case involving a Ku Klux Klan leader who made threatening statements about government officials. Rather than allowing the government to suppress this vile speech based on its hateful content, the Supreme Court established the most speech-protective standard in the world. The Brandenburg test requires three elements before speech loses First Amendment protection: the speech must be directed to inciting imminent lawless action, it must be likely to produce such action, and there must be intent to cause lawless action. This standard protects even the most reprehensible ideas, recognizing that the alternative—government censorship based on content—poses a far greater danger to freedom than offensive words. As recently as 2017, the Supreme Court unanimously reaffirmed this principle in Matal v. Tam, striking down a law that denied trademark protection to “disparaging” terms. Justice Samuel Alito wrote: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’”.
The Contemporary Betrayal
Today, we witness a profound betrayal of this inheritance. The concept of “hate speech” has crept into American discourse like a virus, undermining the constitutional principles that generations of Americans died to defend. Politicians across the political spectrum now speak casually of restricting speech they deem harmful, as if centuries of hard-won wisdom about the dangers of government censorship can be discarded in a moment of fear. Recent polling reveals the depth of this crisis. Americans increasingly view censorship as a major threat, with 51% expressing concern about restrictions on free speech—a dramatic increase from previous years. More disturbing still, the partisan divide on free speech has reversed entirely. Republicans, once the champions of unfettered expression, now embrace “cancel culture” tactics at higher rates than Democrats, with 32% of Republicans supporting consequences for offensive speech compared to only 24% of Democrats.
The aftermath of Kirk’s assassination has accelerated this dangerous trend. FCC Chairman Brendan Carr threatened Disney over Jimmy Kimmel’s comments, saying “We can do this the easy way or the hard way”. Vice President JD Vance urged Americans to call employers of those who celebrated Kirk’s death. Texas Governor Greg Abbott called for investigations into a teacher who called the assassination “karma”. These actions represent a stunning abandonment of conservative principles and a dangerous expansion of government power over expression.
The rise of social media has created new challenges for free speech principles, but the fundamental constitutional framework remains unchanged. When public officials use social media platforms to communicate with constituents, those digital spaces become public forums subject to First Amendment constraints. Courts have consistently ruled that public officials cannot block citizens from their social media accounts based on the viewpoint expressed—a principle that applies whether the criticism is polite disagreement or harsh condemnation. The Supreme Court has made clear that First Amendment principles apply fully to new technologies. In Packingham v. North Carolina (2017), the Court struck down a law preventing sex offenders from using social media, recognizing these platforms as the modern “public square” where Americans engage in democratic discourse. Social media platforms themselves, as private entities, are not bound by the First Amendment and may moderate content as they choose. However, when government officials pressure these platforms to remove speech, or when they use their regulatory power to coerce censorship, they violate the constitutional rights of speakers. The line between permissible government criticism and unconstitutional coercion remains a crucial battleground for free speech rights.
The Symbolic Speech Protection
American free speech law protects not only spoken and written words, but symbolic expression that conveys political messages. The Supreme Court’s decision in Texas v. Johnson (1989) established that flag burning constitutes protected symbolic speech. When Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention to protest Ronald Reagan’s policies, the Court ruled 5-4 that his conviction violated the First Amendment. Justice William Brennan’s majority opinion emphasized that “the government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable”. The Court recognized that protecting unpopular expression is essential to maintaining a free society, even when that expression deeply offends patriotic sensibilities.
This principle extends beyond flag burning to all forms of symbolic expression. From wearing armbands to protest war to displaying offensive signs at military funerals, American law protects symbolic speech that conveys political messages, regardless of how deeply it wounds those who disagree.
The global experiment with hate speech restrictions has yielded a damning verdict on their effectiveness and revealed their inherent dangers. Germany’s response to its Holocaust legacy—implementing comprehensive hate speech laws followed by the NetzDG mandate forcing platforms to delete “offensive” content within 24 hours—exemplifies this failure. Rather than fostering tolerance, these measures have produced systematic over-censorship of legitimate discourse while antisemitism has surged dramatically. By 2024, antisemitic incidents had nearly doubled to 8,627, with more than a quarter of Germans embracing the classic antisemitic trope that “Jews wield excessive global influence.” Britain’s hate speech enforcement has descended into outright farce, with authorities prosecuting citizens for the thoughtcrime of “inappropriate contemplation” in designated spaces and launching investigations into teenagers who posted deceased friends’ favorite song lyrics. Across the Atlantic, Canada has transformed courtrooms into comedy tribunals, imposing financial penalties on performers whose jokes cross ever-shifting lines of acceptability—proving how rapidly such laws metastasize beyond their purported scope.
These international debacles expose an inescapable reality: governmental attempts to regulate thought cannot transform human consciousness. Such efforts merely force objectionable ideas into shadowy corners where they calcify beyond the reach of reasoned argument. Charlie Kirk grasped this essential principle when he observed that “even the most repugnant speech deserves absolute protection. The moment authorities invoke ‘hate’ as grounds for restriction, they reveal the subjective nature of their judgment—and suddenly, the definition becomes whatever serves those wielding power.”
The antidote to bad speech has always been more speech, not censorship. This principle, articulated by Justice Louis Brandeis nearly a century ago, remains as relevant today as ever. When confronted with ideas we find abhorrent, the American response should not be to silence the speaker, but to answer with better arguments, stronger evidence, and more compelling truths. The marketplace of ideas works, but only when we allow it to function without government interference. Every restriction on speech, no matter how well-intentioned, creates a precedent for further restrictions. Today’s “hate speech” exception becomes tomorrow’s “misinformation” ban, which becomes the next day’s prohibition on “harmful” political opinions. We must resist the temptation to use tragedy as a pretext for abandoning our principles. Charlie Kirk’s assassination was a horrific crime, but the appropriate response is to prosecute the killer, not to restrict the speech of those who disagree with his politics or even those who express callous satisfaction at his death. Words did not kill Kirk—a bullet did. Conflating the two dishonors his memory and betrays everything he fought for.
Reclaiming Our Birthright
Americans must reclaim their birthright of free expression. This means defending the speech we hate as vigorously as we defend the speech we love. It means rejecting the siren call of “hate speech” restrictions, no matter how reasonable they may seem in the moment. It means trusting in the wisdom of generations who understood that the greatest threat to liberty comes not from offensive words, but from government power to determine which words are acceptable. The stakes could not be higher. If we allow fear to triumph over principle, if we permit government officials to determine the boundaries of acceptable thought, we will have lost something precious that may never be recovered. The American experiment in ordered liberty depends on our willingness to defend even the most despicable speech, because the alternative—a world where government decides what we may think and say—is far worse than any offense words alone can inflict.
The choice is ours. We can honor the legacy of those who died for our freedoms by defending them even in dark times, or we can surrender them for the false promise of safety. History will judge us by the choice we make.
In America, there is no hate speech exception to the First Amendment—and there never should be. This is not a flaw in our constitutional design, but its greatest feature. Our commitment to free expression, tested through wars and civil rights struggles, economic depressions and cultural upheavals, remains the bedrock upon which all other liberties rest. We abandon it at our peril, and we betray it to our shame.
The marketplace of ideas demands vigilant gardeners, not censorious pruners. Let us tend it well, for upon its health depends the very soul of the Republic.
