On this year’s Sept. 17 Constitution Day, the U.S. Constitution marked its 230th anniversary at a time of intense debate about the meaning of the First Amendment. On campuses and in cities across America, online and in the workplace, there are calls to balance the First Amendment’s protections for hate speech against other values, such as dignity or avoiding emotional injury.
In the courts, however, there is no similar debate about the meaning of the First Amendment. On all sides of the spectrum, justices and judges agree that hate speech must be protected in America unless it is intended to and likely to cause imminent violence.
If America is to remain free, it is essential for us to protect even hateful speech from those who would censor or silence it. This freedom — with the other First Amendment freedoms of conscience and assembly— is part of the bedrock of American liberty.
As Constitution Day reminds us, we should give thanks for this inspiring bipartisan constitutional consensus, which distinguishes the United States from the rest of the world as the country that protects free speech more vigorously than any other. And we should remember the constitutional sources of this inspiring American free speech tradition, so that we can remember why giants of the American Constitutional tradition — from Madison and Jefferson to the great Supreme Court Justices Louis Brandeis and Oliver Wendell Holmes — believed that it is crucial in a democracy for courts to protect what Holmes called “freedom for the thought we hate” in order to ensure that citizens can develop their faculties of reason and govern themselves.
Holmes and Brandeis changed their minds about whether the First Amendment should protect hate speech. Before 1919, they had joined Supreme Court opinions upholding the convictions under the Federal Espionage Act of 1917 of Socialists such as Eugene V. Debs, who criticized World War I and called on his fellow citizens to resist the draft. The Court held that any speech that might have a “bad tendency” to lead to unlawful action in the distant future could be suppressed.
Over the summer of 1919, Holmes and Brandeis changed their mind and came to believe that only speech intended to and likely to clause imminent violence could be suppressed. The greatest statement of their new libertarian faith came in Brandeis’s concurring opinion in Whitney v. California, decided in 1927. The previous summer, Brandeis had read Jefferson’s 1801 letter to the future U.S. senator, Elijah Boardman: “We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings.”
In his extraordinary opinion in Whitney, Brandeis channeled Jefferson’s faith in reason to stipulate that that speech could be restricted only if it threatened to result in imminent and serious criminal harms, and only if there was no time for informed deliberation to defuse the danger. Brandeis’ opinion in Whitney represents the most important defense of freedom of thought and opinion since Jefferson’s First Inaugural, on which it relies. Here are Brandeis’ inspiring words:
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
In other words, Brandeis’ faith in deliberation was based on his conviction that if people were given time and opportunity to engage in “public discussion,” then “the power of reason” would prevail. In his Whitney concurrence, Brandeis argues that free speech is necessary both for “the discovery and spread of political truth” and for men and women to “develop their faculties.” There is no greater statement of faith in America of the value of counter-speech as the best response to hate speech and the ability of “the processes of education” to expose falsehoods, as long as there is time for “full discussion.”
In 1969, Brandeis’ opinion in Whitney was adopted by the Supreme Court as the law of the land in the Brandenberg v. Ohio, which held that even a Ku Klux Klan leader in full regalia could not be prosecuted for the hate speech at Klan rally: “If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” Because the speech was not intended to and likely to cause imminent violence, the Court properly held, it was protected under the First Amendment.
There are vexing questions today about the precise point when hate speech in public can be suppressed as intended to and likely to cause imminent violence. The American Civil Liberties Union, for example, has decided not to defend members of the “alt-right” and “Antifa Left” who carry firearms to protests because imminent violence is both intended and likely to result.
There are also serious questions about whether, in the age of Twitter mobs and Facebook, the speed of public discourse has accelerated so quickly that the time for “full discussion” Brandeis thought was necessary for falsehoods to be exposed may be in short supply. In an age of “fake news,” citizens’ faith in the ability of reason to distinguish between truth and falsehood is itself under siege.
That’s all the more reason for reaffirming and celebrating the core meaning of the First Amendment recognized by Brandeis and endorsed by the Supreme Court — that the best response to hate speech is counter-speech, that citizens need to take the time to deliberate rather than try to silence their opponents, and that public reason in America will ultimately prevail. Jefferson and Brandeis expected no less.
• Jeffrey Rosen is President of the National Constitution Center, a nonpartisan nonprofit in Philadelphia, and a law professor at George Washington University. He is the author of “Louis D. Brandeis: American Prophet.”
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