Hate speech and the Supreme Court

DESCRIPTION: Communications intended to insult, degrade, intimidate, or create animosity against a person or persons belonging to a particular race, ethnicity, gender, religion, disability, or sexual orientation.

SIGNIFICANCE: The First Amendment broadly prohibits the government from restricting the content of communications, with the exception of particular categories of expression, such as defamation, “fighting words,” threats to physically harm another person, and incitement of violent behavior. Hate speech must be distinguished from hate crimes, which are deeds that are not protected by the Constitution.

The Supreme Court accepted the principle that a number of narrowly defined categories of communication are not protected by the First Amendment. In Chaplinsky v. New Hampshire (1942), for example, the Court declared that one of these categories was the use of “fighting words,” or a face-to-face declaration of extremely offensive words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Although the Chaplinsky ruling has been reaffirmed in principle, the Court applied the category of fighting words so narrowly that it became almost impossible to draft a law or ordinance that is enforceable. In Gooding v. Wilson (1972) and Lewis v. New Orleans (1974), the Court struck down ordinances that used the term “opprobrious language (abusive or insulting language),” which Justice William J. Brennan, Jr., argued was overly broad because it might be applied to constitutionally protected speech.

The Court endorsed the criminalization of some forms of hate speech in the case of Beauharnais v. Illinois (1952). The defendant in the case had been showing offensive leaflets of African Americans when petitioning for racial segregation, and they were convicted under a statute that made it a crime to expose persons to “contempt, derision, or obloquy” because of their race, creed, or religion. The official opinion of the Court argued that measures against criminal libels had been sanctioned by centuries of Anglo-American law. Even though the Beauharnais ruling has never been formally overturned, the Court’s rulings since 1952 have made it manifestly clear that it is no longer a binding precedent.

The main problem with Justice Oliver Wendell Holmes’s clear and present danger test was its vagueness, which left it susceptible to many interpretations and applications. The Court presented a modified version of the test in Brandenburg v. Ohio (1969), a case involving a Ku Klux Klan leader who was convicted of suggesting, in a televised rally, that violent actions might be necessary or desirable. In overturning his conviction, the Court allowed the government to punish advocacy of illegal conduct only when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg's so-called “imminent and likely danger” test clearly distinguished between the expression of an idea and the commission of a crime, making it impossible to punish persons for hate speech except when there is a direct and immediate linkage between the speech and a criminal act. The constitutional right to express unpopular, even intolerant, ideas was further strengthened in the case of Collin v. Smith (1978), when the Supreme Court refused to review the Seventh Circuit’s decision that authorized the American Nazi Party to march on a public street in the predominantly Jewish community of Skokie, Illinois.

During the late 1980s and 1990s, more than thirty states and numerous communities and colleges enacted speech codes or laws prohibiting speech communicating various kinds of hate or bias. College speech codes tended to be especially broad, and when challenged, they were almost invariably found to violate the First Amendment in lower courts. In the case of R.A.V. v. City of St. Paul (1992), the Supreme Court examined an antibias criminal ordinance that prohibited the display of a symbol that “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” Robert A. Viktora and another teenager were punished for disobeying the ordinance after they burned a cross on a black family’s lawn. In their review of the case, the Supreme Court justices unanimously voted to strike down the ordinance, but they based their conclusions on different rationales. Justice Antonin Scalia, for example, argued that the ordinance violated the First Amendment because of its “viewpoint discrimination,” punishing some expressions of hostility and allowing others. A majority of the justices indicated that a narrowly drawn law punishing race-based “fighting words” would be constitutional. Following the ruling, many states, communities, and colleges attempted to establish new rules in content-neutral language.

The state of Virginia enacted a statute that made it a felony to burn a cross with the intent to “intimidate” a person or group of persons. The statute also specified that any act of cross-burning would be taken as “prima facie evidence” of a person’s intent to intimidate. In reviewing the cases of three persons convicted under the statute in Virginia v. Black (2003), the Supreme Court issued two 6-3 rulings. First, the Virginia statute was constitutional so long as it was construed to punish a person for the act of intimidating or threatening another person. Secondly, the Court found that the First Amendment forbade the state to punish a cross-burner whose intent was simply to communicate a pro-Ku Klux Klan idea without sufficient evidence that he intended to intimidate a particular person. The ruling in Virginia v. Black recognized that individuals have the constitutional right to communicate messages of hatred or disdain toward social groups or individuals if they are so inclined.

Another ruling on hate speech by the Court came in 2011 in the case of Snyder v. Phelps. This case involved members of the Westboro Baptist Church and their practice of picketing at the funerals of soldiers who had served in the Iraq War. The Court ruled in favor of the church, arguing that although the picketing and placards dealt with issues of public import to discourse on a topic, the members of the church were still within their constitutional rights. In 2017, the Court ruled on a case involving hate speech and trademarks. In Matal v. Tam, the Supreme Court ruled that the Lanham Act's disparagement clause preventing trademark registration if a mark was considered offensive violated the Free Speech Clause of the First Amendment. In Counterman v. Colorado (2023), the Court clarified that speech qualifies as a true threat only when the speaker has some subjective awareness that the statement could be perceived as threatening. A recent First Amendment dispute concerns online platforms: in Moody v. NetChoice, LLC (2024), the Court recognized that private social-media companies may have their own First Amendment interests in selecting and moderating the content they display. 

Bibliography

Chaplinsky v. New Hampshire. Supreme Court of the United States, 9 Mar. 1942.
www.oyez.org/cases/1940-1955/315us568. Accessed 8 Apr. 2026.

Gorenc, Nina. “Hate Speech or Free Speech: An Ethical Dilemma?” International Review of Sociology, vol. 32, no. 3, 2022, pp. 413–25, doi:10.1080/03906701.2022.2133406. Accessed 8 Apr. 2026. 

Greenawalt, Kent. Fighting Words: Individuals, Communities, and Liberties of Speech. Princeton University Press, 1995.

Head, Tom. “6 Major U.S. Supreme Court Hate Speech Cases.” ThoughtCo, 18 July 2019, www.thoughtco.com/hate-speech-cases-721215. Accessed 8 Apr. 2026.

“Moody v. NetChoice, LLC, 603 U.S. ___ (2024).” Justia, 26 Feb. 2024, supreme.justia.com/cases/federal/us/603/22-277/. Accessed 8 Apr. 2026.

Sturm, Philippa. When the Nazis Came to Skokie: Freedom for the Speech We Hate. University Press of Kansas, 1999.

Walker, Samuel. Hate Speech: The History of an American Controversy. University of Nebraska Press, 1994.