Expert: Michael Troy - 3/14/2005

Question
Currently, almost all forms of hate speech and racial demonstrations are permitted in the US because of the first amendment. Has it always been this way? Are there now or have there ever been laws of any kind barring hate speech?  What is this history of this issue?

Answer
Hi Gabe,

First off, it's helpful to have a better idea of any sort of Constitutional enforcement.  Federal Courts asserted the right to strike down unconstitutional laws very early on.  However, throughout the 19th Century, they almost never acted on that power for any reason.  One can probably count on one hand the number of laws struck down during the entire 19th Century, none of them relating to the First Amendment.

It is also important to remember that the Court did not hold that the First Amendment applied to State governments, on to the Federal Congress: "Congress shall make no law..."  It was not until the 1920's that the Court decided that First Amendment rights applied to the States via the 14th Amendment.  Therefore, it is not surprising to find many cases of quite blatant government censorship at the state level.  For example, many southern states had made it a crime to advocate for the abolition of slavery before the Civil War.

With regard to your specific question about hate speech laws, yes there used to be laws called "group libel" which made it illegal to make false and defamatory statements about any group of people.  There also used to be a much broader "fighting words" doctrine which denied constitutional protection to any speech that might reasonably arouse anger and violence in the listeners.  It was not really until after WWII that the Courts began to develop a comprehensive set of case law that protected most forms of speech from government attack.

Even without the protection of the Courts, there simply were not a lot of laws directly barring words deemed hurtful to various minority groups.  Unfortunately, this probably had more to do with generally unfriendly public attitudes toward minority groups than any affinity to the First Amendment interests at stake.

I hope this helps!
- Mike