1st Amendment and Free Speech/Jail Time For Hate Speech


Could you tell me if the following is accurate?

"Even calmly uttering the word (slur against homosexuals) toward someone can be considered a hate crime, depending on what state you live in."

The writer went on to add, "Why don't you read the content of the Chaplinsky case? It will establish an important doctrine you seemed to have missed. Calling someone a (slur against homosexuals) falls under the doctrine established in this case."

If this is true, how is it the jails are not overflowing with obnoxious, racist, bigoted people?

Mind you, I'm not saying people that do such things aren't total jerks, just that I can't see how their behavior falls under the category of hate crime.

Hi Savannah,

There are some countries were such words can be criminal.  However, in the US, the First Amendment protects even hateful speech.  

A hate crime is only prosecutable if there is an underlying crime.  For example, if someone commits a murder, and it can be shown that the murder and racist motivations, that can be considered a hate crime.  Similarly, if someone commits assault or arson and has sexist or homophobic motives, those could be considered hate crimes as well.  But there must be an underlying traditional felony for the hate crime to be a crime.  The motivations investigation usually just enhances the penalty.

There have been cases where the underlying "crime" is not an act of violence.  For example, a recent New Jersey case saw a "hate crime" prosecution for a college student who posted a video of his room mate having gay sex.  In that case, the underlying crime was invasion of privacy, which is a felony in NJ.

Courts have also recognized a "fighting words" exception to protected speech.  This doctrine was first announced in Chaplinsky v. New Hampshire (1942).  But the Court applies that exception very narrowly.  It must be in a face to face situation where the words are clearly designed to provoke immediate violence.  Posting such language on a web site, for example, would not apply because someone reading it would not have the ability to respond immediately by throwing a punch at the speaker.  Also, the setting would have to be provocative.  For example, if a teacher in a classroom used a racially or sexually provocative term in class, that would not fall under the exception because the context would not reasonably expect a violent response.  Essentially, to be actionable, the words and context must be clearly provocative to violence, where a normal person would expect the response to be a physical attack, the same way hitting someone would reasonably result in the reaction of the recipient fighting back.

I hope this helps!
- Mike  

1st Amendment and Free Speech

All Answers

Answers by Expert:

Ask Experts


Michael Troy


I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.


As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Former Attorney for Center for Individual Rights.

Washington Post
Washington Times

J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

©2016 About.com. All rights reserved.