Recent US Supreme Court Rulings upholding Free Speech including “the thought we hate”:
On June 19, 2017 the US Supreme Court in Matal v. Tam, the “Slants” case:
Justice Alito wrote:
“Speech expressing ideas that offend. . .strikes at the heart of the First Amendment. 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.”
Justice Kennedy wrote:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
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University of California at Berkeley Chancellor Carol Christ addressed the Free Speech issue in an open letter on August 23, 2017
The law is very clear; public institutions like UC Berkeley must permit speakers invited in accordance with campus policies to speak, without discrimination in regard to point of view. The United States has the strongest free speech protections of any liberal democracy; the First Amendment protects even speech that most of us would find hateful, abhorrent and odious, and the courts have consistently upheld these protections.
But the most powerful argument for free speech is not one of legal constraint — that we’re required to allow it — but of value. The public expression of many sharply divergent points of view is fundamental both to our democracy and to our mission as a university. The philosophical justification underlying free speech, most powerfully articulated by John Stuart Mill in his book, On Liberty, rests on two basic assumptions. The first is that truth is of such power that it will always ultimately prevail; any abridgement of argument therefore compromises the opportunity of exchanging error for truth. The second is an extreme skepticism about the right of any authority to determine which opinions are noxious or abhorrent. Once you embark on the path to censorship, you make your own speech vulnerable to it.
Berkeley, as you know, is the home of the Free Speech Movement, where students on the right and students on the left united to fight for the right to advocate political views on campus. Particularly now, it is critical that the Berkeley community come together once again to protect this right. It is who we are.
Nonetheless, defending the right of free speech for those whose ideas we find offensive is not easy. It often conflicts with the values we hold as a community — tolerance, inclusion, reason and diversity. Some constitutionally-protected speech attacks the very identity of particular groups of individuals in ways that are deeply hurtful. However, the right response is not the heckler’s veto, or what some call platform denial. Call toxic speech out for what it is, don’t shout it down, for in shouting it down, you collude in the narrative that universities are not open to all speech. Respond to hate speech with more speech.
The ACLU upholds the right to Free Speech in the face of “hate speech”:
FREE SPEECH FOR HATEMONGERS?
The ACLU has often been at the center of controversy for defending the free speech rights of groups that spew hate, such as the Ku Klux Klan and the Nazis. But if only popular ideas were protected, we wouldn’t need a First Amendment. History teaches that the first target of government repression is never the last. If we do not come to the defense of the free speech rights of the most unpopular among us, even if their views are antithetical to the very freedom the First Amendment stands for, then no one’s liberty will be secure. In that sense, all First Amendment rights are “indivisible.”
Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that government is more apt to use this power to prosecute minorities than to protect them. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”
At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. Threatening phone calls, for example, are not constitutionally protected.
https://www.aclu.org/other/speech-campus
https://www.aclu.org/news/aclu-statement-ann-coulter-speech
Free Speech Rights defined Courtesy United States Courts.gov:
Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.
The First Amendment states, in relevant part, that:
“Congress shall make no law…abridging freedom of speech.”
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). - Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969). - To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971). - To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976). - To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977). - To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
- To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).
Schenck v. United States,249 U.S. 47 (1919). - To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957). - To burn draft cards as an anti-war protest.
United States v. O’Brien, 391 U.S. 367 (1968). - To permit students to print articles in a school newspaper over the objections of the school administration.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). - Of students to make an obscene speech at a school-sponsored event.
Bethel School District #43 v. Fraser, 478 U.S. 675 (1986). - Of students to advocate illegal drug use at a school-sponsored event.
Morse v. Frederick, __ U.S. __(2007).
Courtesy United States Courts.gov