Hate Speech and the First Amendment

The First Amendment reads like an absolute — "Congress shall make no law" — and no one believes it means that. A century of Supreme Court decisions has carved out the speech the government can punish, and the carve-outs are narrower than most people assume. Is racist, hateful, or violent rhetoric among them? What powers does the government actually have when the speech is a Klan leader's, or a neo-Nazi's, or, for that matter, a civil rights leader's?

In this TalksOnLaw interview, recorded at the ACLU's offices, Joel Cohen sits down with Lee Rowland, then a senior attorney with the ACLU's Speech, Privacy, and Technology Project and now executive director of the National Coalition Against Censorship. Rowland builds the doctrine from the ground up — the four categories of unprotected speech, the cases that defined them, and the uncomfortable history that explains why American law has no such thing as "hate speech" — and then takes it outdoors: to Skokie, to Charlottesville, and to the collision between the First and Second Amendments that she calls the million-dollar question.

Four Carve-Outs and a Dying Doctrine

Rowland begins where a lawyer must: with what the First Amendment does not protect. Obscenity requires sexual content so offensive it fails community standards, a category she suspects the internet has nearly emptied. Fighting words come from Chaplinsky v. New Hampshire, a Jehovah's Witness who called a police officer a fascist and a racketeer — still technically good law, she says, and impossible to take seriously today. The two that matter are true threats and incitement, and they share a single logic: speech so intended and likely to produce imminent violence that the state may treat it as the first act of the violence itself. A bomb threat to a school is a crime even if the caller has no bomb, because the fear is the point. Incitement is the same idea with a third party doing the harm. What none of the four contains is a category for hatred. "Hate speech," Rowland stresses, is an English phrase and a European legal concept; in American law it does not exist.

Brandenburg and the Klan

The closest the Supreme Court has come is Brandenburg v. Ohio, in which a Klan leader was convicted of criminal syndicalism — the same laws once used against Communists — for a speech calling for "revengeance" against Black and Jewish Americans. In 1969 the Court reversed, holding that the government may punish only advocacy directed to and likely to produce imminent lawless action, and that Brandenburg's "fantasies of future violence" fell short. Rowland does not soften the case: the Klan was not theoretical speech but an organization with a history of murder, and the first great free-speech victory came at the behest of a virulent racist. She traces the road there through Schenck, the "clear and present danger" case that jailed an anti-war pamphleteer, and notes with distaste the modern exception in Holder v. Humanitarian Law Project, which let the government bar peace activists from advising designated terrorist groups — less a doctrine, she says, than an occasional unprincipled outcome driven by fear.

Claiborne Hardware and the Goose and the Gander

Then comes the case that, for Rowland, redeems Brandenburg. In NAACP v. Claiborne Hardware, white merchants sued the NAACP and Charles Evers for inciting a boycott, seizing on his line that anyone who broke it would get his "damn neck" broken. The 1982 Court applied Brandenburg nearly word for word and protected the speech — though Rowland admits she reads the opinion as one that struggled harder to extend the rule to a civil rights leader than it had to a Klansman. That, she argues, is the point. Rights are not distributed evenly, and for most of the First Amendment's history activists lost. But a rule that protects Charles Brandenburg can be ratcheted, with work, to protect Charles Evers. The alternative is to hand the government the power to decide which of the two may speak — and no one, she notes, would trust every government actor with that choice. The First Amendment is the social contract that says we won't.

Skokie and the Public Forum

Rowland opens with the most controversial case in the ACLU's history. American neo-Nazis chose Skokie, Illinois, precisely because it was home to Holocaust survivors, and when the town denied their permit, Jewish ACLU lawyers — the lead attorney from a family of survivors — won them the right to march. Rowland calls it a ten out of ten on any scale of hatefulness and does not flinch from the verdict: the speech was protected. The reason lies in the public forum doctrine. Streets, sidewalks, and parks are where the First Amendment is most robust, the places where a young republic argued itself into existence, and the government needs its best justification to close them. The distinction she presses is targeting. One Nazi six inches from one survivor's face is a threat any prosecutor would charge; a hundred Nazis in a park addressing no one in particular is, paradoxically, protected assembly — even though, as Cohen notes, the crowd is the scarier of the two. (The Skokie marchers, she adds, never marched; the fight was the point.)

Charlottesville

Rowland then walks through the case that tested the ACLU almost as severely. The Unite the Right organizers held a valid permit for a rally at the Robert E. Lee statue; days before, the city tried to move it a mile away, and the ACLU of Virginia forced the city to justify the change in court, which it could not. What followed was chaos: the Friday torch march, a Saturday crowd larger than police had prepared for, a state of emergency declared five minutes before the permit took effect, and thousands of marchers and counter-protesters dispersed into the streets with no security plan at all — and then the death of Heather Heyer. Rowland's judgment is unsparing in two directions. The rally was protected political speech, whatever one thinks of Robert E. Lee, and there is no way to define it as unprotected without handing the government the power to shut down any protest it dislikes. And the police, by their own state's later account, abdicated the constitutional role that makes such protests survivable. She insists that one bad actor does not make organizers guilty by association, whether the crowd is black bloc anarchists at the WTO or white nationalists in Virginia.

Guns at the Rally

The conversation ends on the question the courts had not yet answered: what happens when the marchers are armed. Rowland reads Heller closely — an individual right she regards as historically unsupported, but one the Court itself said was not unlimited, carving out sensitive places and large gatherings. Her argument is that First Amendment doctrine already has a slot for guns, because every carve-out from free speech turns on the risk of violence, and hundreds of armed protesters are that risk made concrete. She recalls the Women's March, where every friend with a small child brought the child, and worries about a civic sphere reduced to armed skirmishes; Berkeley and Charlottesville, she notes, both produced findings that police hesitated because they were outgunned. Her prediction is that fact-specific time, place, and manner limits on weapons at rallies will be upheld — and her promise is that the Second Amendment will not eclipse the First on her watch.

What to Know Now

The Supreme Court has since reinforced the core of Rowland's account. In Matal v. Tam, it unanimously struck down the trademark law's bar on "disparaging" marks, with the justices agreeing that the government may not suppress speech because it expresses ideas that offend — as close as the Court has come to saying in so many words that there is no hate-speech exception. In Counterman v. Colorado, it held that a true-threats conviction requires proof the speaker was at least reckless about whether the words would be taken as a threat, adding a mental-state element to the "reasonable fear" standard she describes. Brandenburg remains the governing test for incitement and was the yardstick in the debates over speech surrounding January 6, 2021, and Holder v. Humanitarian Law Project remains the law.

Several of the open questions raised in the second half have since been answered, not all in one direction. In Sines v. Kessler, a federal jury found the Unite the Right organizers liable for conspiring to commit racially motivated violence and awarded substantial damages — a reminder that the guilt-by-association principle Rowland defends protects peaceful organizers, not those who plan the violence. Shortly after Charlottesville, the ACLU adopted a policy of declining to represent groups that intend to march with firearms, formalizing the instinct she voices here. On the Second Amendment, New York State Rifle & Pistol Association v. Bruen recognized a right to carry in public, which complicates her prediction, while reaffirming Heller's sensitive-places exception; several states have since restricted firearms at demonstrations and polling places, with mixed results in the courts, and United States v. Rahimi confirmed that the right has limits. The doctrine she describes — public forum, targeting, no guilt by association — remains the framework, now with a decade of hard cases behind it.