Why Even Hate Speech Is Protected By The Constitution

By: Jonathan Hartadi


It is enshrined in the very first amendment of the American Constitution that ‘Congress shall make no law abridging the freedom of speech’. The right to the freedom of expression has been so embedded into American culture that America is arguably the country that applies this right in the truest sense of the meaning: absent of almost any regulation or restriction (Gray, 2016). However, criticism of this unrestricted right has increased as of late, especially with the rise of ‘cancel culture’ and an increase in awareness regarding social issues among the American public. Nonetheless, despite this, the Supreme Court case Brandenburg v. Ohio irrefutably protects any political speech, regardless of how hateful or offensive it is.


In the summer of 1964, a Ku Klux Klan leader in rural Ohio named Clarence Brandenburg made a speech during a KKK rally filled with hateful rhetoric and extremely derogatory slurs aimed at minorities and people of colour. A local news agency filmed this and soon after, Brandenburg was arrested by local authorities for violating Ohio’s crime syndicate law, which he then appealed to the Supreme Court. The Supreme Court then ruled unanimously for Brandenburg, overruling all the district courts in Ohio, showing how united the court was in preserving free speech as much as possible. From this case, the Supreme Court established the Brandenburg test whereby only speech that is ‘directed at inciting imminent lawless action’ or ‘likely to incite such action’ (Oyez, n.d).


With postmodernism becoming more mainstream and the rise of communications technology in the form of social media platforms, this question on the extent of free speech has become relevant once more. Proponents of a more restricted approach often argue that prohibiting certain words, phrases, or even ideas would better sustain harmony and peace in the society. This is actually quite common as many other countries have legislation that criminalises blasphemy against religion or hate speech towards certain demographics. For example, in Indonesia, one can be prosecuted for insulting a religion, while in Singapore, the Sedition Act provides the government with power to arrest individuals that produce ‘seditious publication’ without a warrant. Furthermore, the argument for restricted speech is frequently portrayed to protect minorities and those who have historically been ‘oppressed’. In America specifically, a culture of ‘cancelling’ others due to what they may have said recently, or even decades ago, has developed especially with platforms such as Twitter which accommodate the rapid spread of information regarding what individuals may have said or ‘tweeted’. All this proves that there is greater public support and desire for speech to be limited, contrary to the philosophy of unrestricted free speech in the American Constitution.


Nonetheless, the argument for such an unperverted version of freedom of speech, of which was constitutionally mandated through Brandenburg v. Ohio, is still one that millions of Americans firmly subscribe to. Freedom of speech is a right many would claim to be uniquely American. No other constitutional document upholds this right so highly like that of the American constitution. It is almost as if the founders envisioned the first amendment as a formidable check against any possibility of a tyrannical government rising from within these United states. As Orwell has so vividly alluded to in his most famous novel, language is arguably the most powerful tool to control the masses as, without language, it would be drastically more difficult for an individual to even conceptualize an idea or thought. For this very reason, I firmly believe that both the founders and the justices who wrote the per curiam opinion on Brandenburg v. Ohio fully recognise this fact: that restricting language is unimaginably dangerous. Giving the government the precedent to regulate speech will set the stage for a more and more overreaching, and eventually perhaps, a tyrannical regime. Time and time again, history has shown that governments who wield the power to regulate speech never fail to abuse it such as Thailand’s use of its lese majeste laws to prevent any criticism of its monarchy from its people. Moreover, although recent calls for restricting freedom of speech have undeniably come from mostly left-wing groups and individuals, this issue should not even be considered a debate between the different political ideologies, as even conservative proposals to regulate expression has rightfully been struck down by the Supreme Court. One prime example of this is Texas v. Johnson, which deems any law that criminalises the burning of the American flag (typically proposed by conservatives) as unconstitutional.


As such, Brandenburg v. Ohio is truly significant, especially in the current era, as it categorically asserts that any legislation that attempts to regulate speech would be a massive perversion of the first amendment. It is a case that more Americans should learn from, so that they would realise that banning bad speech is only the easy way out. The best way to combat bad speech, no matter how horrendous or abhorrent it may be, is through sound argument and better speech. This is because any other means would lead to consequences no American would ever consider as desirable. Truly, this case shows how