Justice Kennedy’s concurrence noted:
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.
Id. at 1769.
Prior hate speech cases reflect the
themes reiterated in Matal v. Tam.
In Terminiello v. Chicago, 337 U.S. 1
(1949), the Supreme Court overturned
the conviction of a priest who gave
a raging anti-Semitic and rightwing
speech in Chicago that prompted pro-
testers to riot. The Court said:
[F]reedom of speech, though not abso-
lute … is nevertheless protected against
censorship or punishment, unless
shown likely to produce a clear and
present danger of a serious substantive
evil that rises far above public inconve-
nience, annoyance, or unrest. … There
is no room under our Constitution for a
more restrictive view.
Id. at 4 (citations omitted).
In Brandenburg v. Ohio, 395 U.S. 444
(1969), the Supreme Court reversed the
conviction of a Ku Klux Klan member
under a statute that punished certain
“advocacy” to accomplish political reform.
Punishment for mere advocacy violates
the First Amendment “except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.” Id. at 447.
In 1977, the Supreme Court upheld
the right of Nazis to march in Skokie,
Illinois, home to a great number of
Holocaust survivors. The decision in
National Socialist Party of America v.
Village of Skokie, 432 U.S. 43 (1977),
was issued per curiam, decided on
procedural grounds, and it directed the
case back to the Illinois Supreme Court,
which then allowed the Nazis to march in
Skokie. The Nazis chose instead to march
in Chicago. Given the procedural posture
of this case, it is not clear how the U.S. Supreme Court would
apply the First Amendment to provocative and intimidating
hate speech expressing fascist and/or racist ideas.
In 1992, the Supreme Court, in a cross-burning case, struck
down an ordinance that prohibited symbols that aroused
anger or alarm based on race, color, creed, or gender. The
ordinance violated the First Amendment because it was over-
broad, the court held in R.A.V. v. City of St. Paul, 505 U.S. 377
(1992). R.A.V. was modified a bit in Virginia v. Black, 538 U.S.
343 (2003), in which the Supreme
Court held unconstitutional a Vir-
ginia statute that treated any cross
burning as prima facie evidence of
intent to intimidate, even though
the state could choose to prohibit
only those forms of intimidation
“most likely to inspire fear of
In Snyder v. Phelps, 131 S. Ct.
1207 (2011), the Court, on First
Amendment grounds, set aside
a jury verdict finding Snyder, the
founder of a conservative church,
liable for intentional infliction of
emotional distress. Snyder and
his family picketed on public
land near the funeral of a Marine
corporal killed in Iraq in the line
of duty. Their signs carried such
offensive language as “Thank
God for Dead Soldiers” and “God
Hates Fags.” The Supreme Court
found the picketing was at a
public place on a matter of public
concern and entitled to First
Amendment protection. “The
point of all speech protection…
is to shield just those choices of
content that in someone’s eyes are
misguided, or even hurtful.” Id.
All of the foregoing cases
dealt with messages repugnant
to general society because they
promoted fascism, anti-Semitism,
racism, and hatred. These are
emotional issues that could lead
to violence between the speaker
and listeners. Yet the Supreme
Court has ruled again and again
that this possibility does not
justify government suppression