The First Amendment to the U.S. Constitution states that "Congress shall make no law. . .abridging the freedom of speech." That prohibition, however, has never been absolute. Some restrictions on speech are necessary, according to the U.S. Supreme Court. For example, a person who yelled "Fire!" in a crowded theater could be prosecuted, and the federal government is permitted to regulate commercial speech to protect consumers from false and misleading advertising. Some scholars have proposed that the class of unprotected speech be expanded to include hate speech. This paper will analyze whether such restrictions are necessary or even possible.
Hate speech, or racist speech, is often cited as undeserving of First Amendment protection. Proponents argue that hate speech is not speech at all, but really a "verbal assault." If the point of the First Amendment is to insure a "marketplace of ideas," out of which truth emerges, then racist speech has no value. As Charles Lawrence notes, someone using racist speech is not trying to open a dialogue or discover truth, but instead is trying to injure the listener (Goshgarian 382). Thus, hate speech belongs with other unprotected speech, such as obscenity, official secrets, and libel (Goshgarian 384).
Lawrence finds support for this argument not in a free-speech case but in Brown v. Board of Education, the Supreme Court's landmark desegregation decision. "Brown held that segregated schools were inherently unequal because of the message that segregation conveyed" (Goshgarian 382). Racial epithets have a lifelong impact on members of minority groups, just as segregation affected African-American children "in a way unlikely ever to be undone" (Goshgarian 383).
Similarly, Rosalie Maggio argues that biased language is not just a harmless oversight but often an attempt to injure or diminish members of minority groups. Tyrants use language to harm groups that "they intend to exploit, o...