Hate Speech And The First Amendment

Ever wonder why the law protects some of the most offensive speech you’ve ever heard? We sit down with Professor Eugene Volokh to map the real boundaries of the First Amendment—where protection is strongest, where it stops, and why those edges exist at all. No jargon, no euphemisms, just a clear guide to what the Constitution allows the government to punish and what it must tolerate.

We start by untangling the core exceptions: defamation, true threats, and incitement of imminent lawless action. From there, we tackle a widespread misconception: there is no “hate speech” exception in U.S. law. You’ll hear how the Supreme Court approached Westboro Baptist Church in Snyder v. Phelps, and why deeply hurtful funeral protests still qualified as protected speech. The discussion then turns to Brandenburg’s imminence standard—why advocacy, even of violence, is generally protected unless it is intended and likely to spark immediate unlawful acts.

Context matters as much as content. We break down what “constitutionally protected” actually means, how the First Amendment binds government actors but not private employers or platforms, and when different rules apply because the state is acting as an employer, educator, or property manager. Finally, we connect speech, press, and assembly: how mass communication gained equal protection, why peaceable protest is essential, and when content-neutral limits like permits, noise rules, or entrance access pass legal muster without becoming censorship.

If you care about free expression, public protest, and the real law behind the headlines, this conversation will sharpen your understanding and challenge your assumptions. Listen, share with a friend who loves debate, and leave a review to tell us where you’d draw the line.

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Chapters

• 0:00 Meet Professor Volokh And His Work
• 2:46 Core Exceptions To Free Speech
• 5:16 Hate Speech Is Not A Legal Category
• 6:31 Westboro And Snyder v. Phelps
• 8:46 Incitement And The Brandenburg Standard
• 12:01 What “Constitutionally Protected” Really Means
• 15:06 Government Roles And Private Actors

Transcript

SPEAKER_01: 0:48

Today we're joined by Eugene Vulcan, Senior Fellow at the Hoover Institution at Stanford University, and distinguished professor emeritus at UCLA School of Law. He's taught the First Amendment, free speech, firearms regulations, and more. Before that, he clerked for Justice Sandra David O'Connor at the U.S. Supreme Court and Alex Kaczynski on the Ninth Circuit. He is the author of textbooks like The First Amendment and Related Statutes and Academic Legal Writing, and the founder of the legal blog, the Vumbler Conspiracy, shaping the national debate on free speech and civic life. You might also know his YouTube series, Free Speech Rules, where he dives deep into how free expression works in today's world. Professor Vumlik brings grounded, thoughtful perspective on what free speech really means in our constitutional democracy and why it still matters so much. Professor Vumlick, we have talked about freedom of the press in a previous episode. And today I have a question for you. When we talk about freedom of expression as a whole, what are some limitations on freedom of expression? And how does hate speech kind of go in with that?

SPEAKER_00: 2:00

Sure. So there are exceptions to the First Amendment. It's complicated, but just to begin with, the usual list, there's an exception for defamation, knowingly false statements about people, and sometimes negligently false as well, that damage their reputations. Another is true threats of illegal conduct, threats of violence and the like. Another is incitement of imminent illegal conduct, like standing in front of a building, in front of a crowd, and intentionally urging them to imminently attack the building. Do it right away in a way that it makes it likely that they'll attack. There are some other exceptions as well. There is no exception for supposed hate speech. Hate speech is not a legally defined term in American law. All views are protected by the First Amendment, regardless of their ideology. They could be hateful, they could be loving, they could be, they could express hostility to particular racial groups or religious groups or ethnic groups or sexual orientation or gender identity groups or sexes. Or they could express affection, they can support equality, they can support inequality. All ideas are protected by the First Amendment. Now, again, there are also exceptions which apply equally to all ideas. So threatening someone with violence because you don't like their racial group is constitutionally unprotected. It can be made and is made criminal. Likewise, threatening someone with violence because you don't like their politics or so. Threatening someone with violence because you are pro-equality and they're anti-equality. That too is constitutionally unprotected. So there are exceptions for threats, whether they're biased or prejudiced or not. There are exceptions for intentional incitement of imminent lawless action, whether they're prejudiced or not. There is no exception for supposedly racist speech, again, or or speech hostile to particular religions, or anti-Semitic speech, or other such categories of bigoted or prejudiced speech.

SPEAKER_01: 4:27

Feel like that would fall under. Again, I really appreciate that you talk to our listeners about there's no legal definition of hate speech, right? It's not a legal term. But you know, groups like the Westboro Baptists use this as a platform to say things that maybe the general public doesn't agree with. And you're saying that that speech is protected even if people don't like it. Is that correct?

SPEAKER_00: 4:51

Yeah, that's absolutely right. And even people understandably justifiably dislike it. So Westboro Baptist Church is anti-Catholic, it's anti-gay, it's also become part anti-American because it thinks America is being punished for tolerating homosexuality. There was a case called Snyder v. Phelps some uh 14 years ago, where they were protesting, not immediately outside a funeral, but within a thousand feet of a funeral, with signs such as God hates the USA, thank God for 9-11, Pope in Hell, God hates fags, those kinds of things, extremely offensive material. Yes. And they were sued for so-called intentional infliction of emotional distress. And the lower court said, yes, this is speech that is severe and outrageous, and it didn't that, excuse me, they said, yes, this is speech that is extreme and outrageous, and it inflicts severe emotional distress. And that is enough under the tort law of the of that of the state where this was happening to impose massive liability on the group that went up to the Supreme Court, and the Supreme Court held with only one dissenter that such speech was indeed uh constitutionally protected, that speech doesn't lose its protection because it's hateful, because it's highly offensive, because it's on the occasion of a person's funeral and the like.

SPEAKER_01: 6:11

So you talked about imminent danger. So I know that there are standards that have been set by the Supreme Court to kind of show like a standard of speech that maybe goes too far. Um, I'm specifically thinking about the Brandenburg case because I know there are a lot of teachers that talk about their case or that case in their class. And there was one before that talked about clear and present danger. Can you kind of talk to us a little bit about how the Supreme Court has looked at a standard for speech that maybe goes too far?

SPEAKER_00: 6:42

Sure. So the Brandenburg case deals with one specific exception. Exception for speech that uh that incites imminent illegal conduct. Generally speaking, even advocacy of violence is constitutionally protected. You can say we should have a revolution. You can say people should rise up against the oppressors, people should kill all the police officers, advocacy of murder. But that is constitutionally protected as a general matter. In Brandenburg, the court said what is unprotected is a speech that is intended to and is likely to cause imminent lawless conduct, which in a later case called Hesvi Indiana made clear means basically right away, within minutes, hours, probably not even as much as a day. The theory being that if you're talking to a to uh to a large group, crowd of people who are maybe very angry and you're stirring them up, there's not much opportunity for cooler heads to prevail, not much opportunity for someone to speak out in response. In that kind of situation, yes, it is permissible to uh to restrict speech, to prevent this imminent illegal conduct. But as to longer-term harms, oh, this speech might encourage people to attack police officers or to attack the government or attack particular racial groups, or then uh uh that speech remains constitutionally protected.

SPEAKER_01: 8:05

And when you say constitutionally protected, what do you mean by that? Because again, I know we'll have listeners that say, but that's not, you know, that's not right and that's not fair, even though that's not what the Supreme Court does. They just determine whether or not it's constitutional. So what does that mean?

SPEAKER_00: 8:20

So it's complicated. As a general matter, the constitution protects you from government action. The first word of the First Amendment is Congress. Congress shall make no law, among other things, abridging the freedom of speech or of the press. That's been extended through the 14th Amendment to state and local governments. The 14th Amendment starts with no state shall. So state and local governments and the federal government are constrained by the First Amendment. So you so if speech is said to be constitutionally protective, that generally means you can't be locked up for the content of what of what you say. You can't be fined for the con for the content of the statement. You generally can't be sued successfully for the content of the statement. Now, uh what if the government is acting in a some special capacity, say as an employer? Can it fire you for such speech? Often, yes. Can it expel you from K-12 school for such speech? Sometimes yes. Can it expite you from college for some speech? Generally, no. It turns out there are different rules for different roles. Likewise, if the government is acting as property owner, it might say say no vulgarities, no vulgarities in the in a courtroom, let's say. But it can't say no vulgarities in the speech. What about a park? It's owned by the government. But the court says that's a traditional public forum where the government doesn't get any extra authority. So it's complicated. And yeah, I mean I've taught classes where we've spent several weeks on this question of uh what happens when the government is acting in special roles. The other thing to keep in mind is this is just the government. Private entities aren't bound by the First Amendment. So if your employer fires you because it doesn't like your speech, doesn't like your express racist views or anti-police views or anti-Israel views or pro-Israel views, that doesn't violate the First Amendment. Now, many states have statutes that uh limit private employers' actions. So it may be that your speech does end up being protected even against your private employer, but that's not directly because of the First Amendment. It's because of these statutes, which apply some free speech principles to private employers and some and in California, also to private universities and private high schools and some places to private shopping.

SPEAKER_01: 10:41

So, can I ask a question then? And I don't know if this fits under speech or assembly. You know, very recently there were protests around the nation. Does that fall under free speech? Because I'm thinking about the signs they make. And, you know, yes, they have the right to do. Obviously, they can't create, you know, imminent lawless action. But does that kind of fit under speech? I think my question is because it feels like the First Amendment, there's not clear boundaries, right? Between press and speech and assembly, they all kind of marry together.

SPEAKER_00: 11:17

Right. So the First Amendment basically protects the freedom to express yourself through words and also in some measure through certain kinds of symbolic expression, waving a flag, let's say, burning a flag in many situations. The freedom of the press was the Framers' way of making clear that that right extends not just to in-person communication, but also to mass communications. After the printing press was invented, many countries tried to sharply limit its use because it saw the printing, they saw the printing press as especially dangerous. And the Free Press Clause makes clear that that, well, the government may be able to restrict, again, libel threats and such, it can't restrict speech just because it reaches a large audience. Freedom of assembly likewise makes clear that your right to speak doesn't mean just your right to speak by yourself or right to speak in your home. It's also your right to gather with other people in other places and peaceably to uh assemble, to petition the government for address of grievances, which is to say, to uh uh argue to government officials that what they're doing is wrong, and to speak more broadly. So so uh the freedom of assembly is is a pretty broad and important protection. It is, of course, limited. Partly it's limited the same way that free speech is limited. You can't assemble, uh excuse me, uh you can't uh threaten to kill people. If it's a true threat of violence, it is constitutionally unprotected. It can be punished. That's true whether you're doing it by yourself, whether you're doing it in a tweet, whether you're doing it with a large group of friends on in the city park. So there are exceptions to freedom of assembly like freedom of speech. What's more, it's freedom peaceably to assemble. So if you are uh assembling and you're you decide you're really angry at some government agency or business, you decide to burn it down or to break its windows. That's not peaceable assembly. That's not communication, that is violence or or vandalism, or in any case, things that are not protected by the First Amendment. So what if you are blocking the road? Well, generally speaking, content neutral restrictions on assembly, just like some content neutral restrictions on speech, will often, though not always, be constitutionally protected. So the government, for example, may say, look, if you want to parade down a street, you need a parade permit. We'll give it to you on a content neutral basis. But no, we won't just let you show up in the middle of rush hour on Friday and parade down this street, or especially parade down some freeway. We might say, no, you have to parade down this other street at some other time. Likewise, just to give an example of uh controversies that have been happening a lot over the last several decades, people have the right to protest against abortion. They have the right to gather, say, on sidewalks outside publicly owned sidewalks, outside abortion clinics, and express their views that abortion is murder. They have the right to do that and they can't have that speech restricted based on its viewpoint or in its content. On the other hand, the city can say you can't block entrances, because that is not just expression at that point. It is interference with other people's ability to run their own organizations. Likewise, it might be able to say you can't uh use a very loudly amplified sound outside what is, after all, a medical facility. On the other hand, if the government says you can't come within 36 feet of the abortion clinic, period, of the entrance, period, regardless of whether you're blocking it or not, regardless of whether you're quiet or loud, that the Supreme Court said that's unreasonable, even if it's a content neutral restriction. That is too broad and too restrictive.

SPEAKER_01: 15:09

Thank you so much. I feel like you took this really big, complicated topic and made it easily accessible for our listeners. So we greatly appreciate your time and your expertise with this matter.

SPEAKER_00: 15:22

Well, uh, thank you very much for having me. It was a pleasure.