Hate Speech: Its Protection Under the First Amendment and Resisting It With Counterspeech

Sophia Staniunas*1


The First Amendment to the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”2 Each aspect of the First Amendment has its exceptions: people may assemble, but not violently riot; people may practice religion freely, as long as the practice excludes harming others; the press may report, save for printing libel and slander. Regarding the freedom of speech, the Constitution allows for anyone to say anything, unless the words have the potential to incite violence or if the speech includes threatening language. The bounds of free speech, save for these exceptions, are limitless such that extremely offensive language—also known as hate speech—runs rampant, especially in today’s political and social climate. In these cases, using the constitutional freedom of speech to one’s advantage when attempting to put down or prevent hate speech is the most valid option. Attempts to change the law regarding punishment of offensive speech is not feasible, according to previous court cases and current professional opinion.

Case Law Protecting Hate Speech

The law does not look kindly upon cases in which a party attempts to legally limit hate speech. In major hate speech cases, courts have tended to favor the expansion of free speech, not the limitation of it. For example, in the context of Skokie v. National Socialist Party (1977), the National Socalist Party of America (NSPA) made hateful and racist comments about Jewish people and people of color.3 At the time, the village of Skokie, Illinois had a population of about 5,000 to 7,000 Nazi concentration camp survivors.4 The Illinois Supreme Court ruled in favor of the NSPA, which sought to hold a public demonstration, and established that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”5 To reach their decision, the Illinois Supreme Court relied partially on Cohen v. California (1971), a U.S. Supreme Court (“the Court”) case that similarly dealt with free/hate speech that included controversial language and symbolism. In this case, Paul Cohen wore a jacket opposing the Vietnam War, which read “Fuck the Draft. Stop the War.”6 In Cohen, the Court ruled that government restriction of speech should only occur in the most extreme cases, due to the “premise of individual dignity and choice upon which our political system rests.”7 Though the language and symbols that the NSPA used were extremely offensive and hateful toward marginalized and persecuted groups of people, the First Amendment right to free speech triumphed in both cases. This Note addresses how the United States can eradicate hateful and offensive expression for the sake of unity without limiting the individual freedoms that the Constitution promises.

Case Law Restricting Hate Speech

In only a select few cases, the Supreme Court has ruled in favor of restricting hate speech. For example, in Virginia v. Black (2003), three defendants had placed burning crosses in the yards of Black families and individuals.8 They were tried and convicted on this account under a Virginia statute that prohibited cross burning.9 According to the case law, the Court stated that the First Amendment “affords protection to symbolic or expressive conduct as well as to actual speech.”10 In this case, the protection would be surrounding the symbolism of a burning cross. However, the Court also considered the group that was being targeted, along with the intention behind the symbol in this case. The burning cross in Virginia was an intimidation, according to Justice Sandra Day O’Connor, and this intimidation fell under the umbrella of a threat “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”11 This ruling begs the question of how to determine whether a form of speech incites fear within a person or group of people, and whether that incitement constitutes a threat (and is therefore no longer legally protected).

In evaluating Skokie, the Swastika symbol that the NSPA used is similar to the symbolism of a burning cross. Both symbols accentuate hatred and potential threats towards a marginalized group. Burning crosses as a symbol of hatred against people of color originated in 1915 after the debut of the movie The Birth of a Nation, sparking the revival of the Klu Klux Klan.12 Similarly, the use of the Nazi-appropriated Swastika represents “Aryan identity and German Nationalist pride,” which advances the idea of those of non-Aryan or German descent as inferior and racially impure, leading to physical discrimination against them.13 In an appellate court review, the NSPA was forbidden to fly the Swastika during their marches.14 Yet, the use of discriminatory and hateful language was able to persist based on later court rulings, and the organization retained permission to march against Jewish people and people of color.15 This retainment calls into question the disparate rulings. The courts failed to recognize the incitement of fear in one instance of an organization that runs on racial, ethnic, and religious discrimination and hate speech, and yet, the courts were able to recognize the incitement of fear within another group based on very similar circumstances.

Two Ways to Inhibit Hate Speech

Limiting speech in general, regardless of the personal feelings of the judges rendering the decisions, is an arduous task—though possible. Scholars disagree on what would eradicate it more effectively: providing counterspeech to hate speech or attempting to enact laws to limit it. Jeremy Waldron, a professor at New York University School of Law, and Nadine Strossen, former president of the American Civil Liberties Union and professor at New York Law School, engaged in a public discourse about hate speech and presented differing views on how to fix the problems that hate speech breeds.16 Before presenting their arguments, both agreed that “a lot of hate speech does satisfy the emergency principle: it constitutes a general threat or targeted harassment or hostile environment harassment or an intentional incitement of imminent violence.”17 The best way to go about eradicating it, however, was a topic of disagreement: Strossen sides with the counterspeech method, and Waldron favors a legal solution. The biggest takeaway of Strossen’s point of view is the avoidance of censorship laws while still resisting hate speech to the highest extent; Waldron thinks that having legislators come up with ways to legally restrict hate speech is not unattainable, but “reasonable.”18 While both speakers make valid points, the idea of counterspeech, logically speaking, seems to be the most reasonable if the courts are to adhere to the text of the First Amendment. Waldron’s idea would be the ideal solution, but it is less attainable and has the potential of crossing some constitutional boundaries, while Strossen’s idea stays away from legal impropriety.

The Benefits of Counterspeech

The Supreme Court holds the viewpoint that freedom of speech should be completely protected unless it breaks laws already in place, but it also pushes the idea that “the constitutionally permissible response to speech conveying controversial, disfavored views is ‘counterspeech,’ not censorship—more speech, not silence.”19 Examples of counterspeech, or speech that directly shuts down discriminatorily-motivated hate speech, would include instances like the dialogue and symbols of the Civil Rights Movement, countless parades and marches for the LGBTQ+ community, and more. According to the American Bar Association, recently, there has been “remarkable and bipartisan outpouring of speech and peaceful dem­onstrations that have denounced hateful ideologies while celebrating our nation’s renewed commitments to equality, inclusivity, and intergroup harmony.”20 Though instances of counterspeech do not cater to individual hateful biases, it proves that changing the rhetoric and pushing inclusivity by using the freedom of speech for good successfully reduces public forms of hate speech. For example, the outpour of support for the people being discriminated against during the neo-Nazi incident at Charlottesville greatly outnumbered the number of white supremacists supporting the oppressive movement.21 Not only that, but chief executive officers of many companies offered their own counterspeech arguments in support of marginalized people. Jamie Dimon of JP Morgan Chase stated, “Constructive economic and regulatory policies…will not matter if we do not address the divisions in our country.”22 He offered support of both unification and of using the freedom of speech to advocate for the oppressed, rather than attempting to make laws to limit speech in general.


The examples of court rulings failing to suppress hate speech and the fact that social movements do more for shutting down discriminatory organizations and parties prove that counterspeech is a favorable alternative to shutting down hateful discourse. Making laws that contravene the First Amendment just to theoretically rid the United States of hate speech does not necessarily help to eradicate wrongful prejudice itself. However, through counterspeech and the social movements that typically go along with it, hateful discourse is reduced to an extent, and provides an educational experience on putting aside bias, stereotypes, and prejudice against marginalized communities at the same time.

  1. *B.A. Candidate for Philosophy and History, Fordham College at Rose Hill, Class of 2025. Thank you to the Fordham Undergraduate Law Review team, my friends, and my family for supporting me in writing this note.
  2. U.S. Const. amend. I.
  3. Skokie v. National Socialist Party, 69 Ill. 2d 605, 610 (Ill. 1978); see Chris Demaske, Village of Skokie v. National Socialist Party of America (Ill) (1978), The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/728/village-of-skokie-v-national-socialist-party-of-america-ill.
  4. Skokie, 69 Ill. 2d at 610.
  5. Id. The U.S. Supreme Court heard National Socialist Party of America v. Skokie on appeal in 1977 and reversed and remanded the Illinois Supreme Court’s denial to lift the lower court’s injunction. The Court wrote that the state must allow the stay because the injunction will deprive the petitioners of their First Amendment rights “during the period of appellate review which, in the normal course, may take a year or more to complete.” National Socialist Party v. Skokie, 432 U.S. 43 (1977). However, this case still shows a reverence of the protection of free speech over its limitation since it represents a move in the Supreme Court to limit the application of restrictions on free speech. See Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship (2018).
  6. Cohen v. Cal., 403 U.S. 15, 16 (1971).
  7. Id. at 25.
  8. Virginia v. Black, 538 U.S. 343, 348 (2003).
  9. See id. at 344.
  10. Id. at 358.
  11. Id. at 360.
  12. The Various Shady Lives of the Ku Klux Klan, Time (Apr. 9, 1965), http://content.time.com/time/subscriber/article/0,33009,898581,00.html.
  13. United States Holocaust Memorial Museum, Introduction to the Holocaust, Holocaust Encyclopedia (Nov. 5, 2021), https://encyclopedia.ushmm.org/content/en/article/introduction-to-the-holocaust.
  14. Skokie v. National Socialist Party, 51 Ill. App. 3d 279, 293 (Ill. App. Ct. 1977). The court said that “[t]he swastika is a personal affront to every member of the Jewish faith, in remembering the nearly consummated genocide of their people committed with memory by those who used the swastika as their symbol.” This appellate court decision was affirmed in part and reversed in part by the Illinois Supreme Court in Skokie v. National Socialist Party.
  15. See High Court Judge Upholds Ban on Swastikas in Skokie March, The Chicago Tribune (Aug. 27, 1977) (The article refers to the appellate case occurring after the original court case, in which the NSA was allowed to march but not hold offensive and hateful symbols).
  16. See Susan Kelley, Legal Experts Discuss Hate Speech and How to Limit It, Cornell Chronicle (Apr. 11, 2018), https://news.cornell.edu/stories/2018/04/legal-experts-discuss-hate-speech-and-how-limit-it.
  17. Id.
  18. Id (Waldron finds that presenting hate speech instances in front of legislators and persuading them to make laws protecting against it is feasible).
  19. See Nadine Strossen, Counterspeech in Response to Changing Notions of Free Speech, American Bar Association (2018), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/counterspeech-in-response-to-free-speech/.
  20. Id.
  21. Id.
  22. Id.