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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Episode Transcript

SPEAKER_01 (00:02):
Today we're joined by Eugene Vulcan, Senior Fellow
at the Hoover Institution atStanford University, and
distinguished professor emeritusat UCLA School of Law.
He's taught the First Amendment,free speech, firearms
regulations, and more.
Before that, he clerked forJustice Sandra David O'Connor at
the U.S.
Supreme Court and Alex Kaczynskion the Ninth Circuit.

(00:25):
He is the author of textbookslike The First Amendment and
Related Statutes and AcademicLegal Writing, and the founder
of the legal blog, the VumblerConspiracy, shaping the national
debate on free speech and civiclife.
You might also know his YouTubeseries, Free Speech Rules, where
he dives deep into how freeexpression works in today's

(00:46):
world.
Professor Vumlik bringsgrounded, thoughtful perspective
on what free speech really meansin our constitutional democracy
and why it still matters somuch.
Professor Vumlick, we havetalked about freedom of the
press in a previous episode.
And today I have a question foryou.
When we talk about freedom ofexpression as a whole, what are

(01:07):
some limitations on freedom ofexpression?
And how does hate speech kind ofgo in with that?

SPEAKER_00 (01:13):
Sure.
So there are exceptions to theFirst Amendment.
It's complicated, but just tobegin with, the usual list,
there's an exception fordefamation, knowingly false
statements about people, andsometimes negligently false as
well, that damage theirreputations.
Another is true threats ofillegal conduct, threats of

(01:37):
violence and the like.
Another is incitement ofimminent illegal conduct, like
standing in front of a building,in front of a crowd, and
intentionally urging them toimminently attack the building.
Do it right away in a way thatit makes it likely that they'll
attack.
There are some other exceptionsas well.

(01:57):
There is no exception forsupposed hate speech.
Hate speech is not a legallydefined term in American law.
All views are protected by theFirst Amendment, regardless of
their ideology.
They could be hateful, theycould be loving, they could be,
they could express hostility toparticular racial groups or

(02:20):
religious groups or ethnicgroups 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 theFirst Amendment.
Now, again, there are alsoexceptions which apply equally
to all ideas.
So threatening someone withviolence because you don't like

(02:42):
their racial group isconstitutionally unprotected.
It can be made and is madecriminal.
Likewise, threatening someonewith violence because you don't
like their politics or so.
Threatening someone withviolence because you are
pro-equality and they'reanti-equality.
That too is constitutionallyunprotected.
So there are exceptions forthreats, whether they're biased

(03:05):
or prejudiced or not.
There are exceptions forintentional incitement of
imminent lawless action, whetherthey're prejudiced or not.
There is no exception forsupposedly racist speech, again,
or or speech hostile toparticular religions, or
anti-Semitic speech, or othersuch categories of bigoted or

(03:25):
prejudiced speech.

SPEAKER_01 (03:40):
Feel like that would fall under.
Again, I really appreciate thatyou talk to our listeners about
there's no legal definition ofhate speech, right?
It's not a legal term.
But you know, groups like theWestboro Baptists use this as a
platform to say things thatmaybe the general public doesn't
agree with.
And you're saying that thatspeech is protected even if

(04:03):
people don't like it.
Is that correct?

SPEAKER_00 (04:05):
Yeah, that's absolutely right.
And even people understandablyjustifiably dislike it.
So Westboro Baptist Church isanti-Catholic, it's anti-gay,
it's also become partanti-American because it thinks
America is being punished fortolerating homosexuality.
There was a case called Snyderv.
Phelps some uh 14 years ago,where they were protesting, not

(04:25):
immediately outside a funeral,but within a thousand feet of a
funeral, with signs such as Godhates the USA, thank God for
9-11, Pope in Hell, God hatesfags, those kinds of things,
extremely offensive material.
Yes.
And they were sued for so-calledintentional infliction of
emotional distress.
And the lower court said, yes,this is speech that is severe

(04:46):
and outrageous, and it didn'tthat, excuse me, they said, yes,
this is speech that is extremeand outrageous, and it inflicts
severe emotional distress.
And that is enough under thetort law of the of that of the
state where this was happeningto impose massive liability on
the group that went up to theSupreme Court, and the Supreme

(05:07):
Court held with only onedissenter that such speech was
indeed uh constitutionallyprotected, that speech doesn't
lose its protection because it'shateful, because it's highly
offensive, because it's on theoccasion of a person's funeral
and the like.

SPEAKER_01 (05:24):
So you talked about imminent danger.
So I know that there arestandards that have been set by
the Supreme Court to kind ofshow like a standard of speech
that maybe goes too far.
Um, I'm specifically thinkingabout the Brandenburg case
because I know there are a lotof teachers that talk about
their case or that case in theirclass.
And there was one before thattalked about clear and present

(05:48):
danger.
Can you kind of talk to us alittle bit about how the Supreme
Court has looked at a standardfor speech that maybe goes too
far?

SPEAKER_00 (05:56):
Sure.
So the Brandenburg case dealswith one specific exception.
Exception for speech that uhthat incites imminent illegal
conduct.
Generally speaking, evenadvocacy of violence is
constitutionally protected.
You can say we should have arevolution.
You can say people should riseup against the oppressors,
people should kill all thepolice officers, advocacy of

(06:18):
murder.
But that is constitutionallyprotected as a general matter.
In Brandenburg, the court saidwhat is unprotected is a speech
that is intended to and islikely to cause imminent lawless
conduct, which in a later casecalled Hesvi Indiana made clear
means basically right away,within minutes, hours, probably

(06:38):
not even as much as a day.
The theory being that if you'retalking to a to uh to a large
group, crowd of people who aremaybe very angry and you're
stirring them up, there's notmuch opportunity for cooler
heads to prevail, not muchopportunity for someone to speak
out in response.
In that kind of situation, yes,it is permissible to uh to

(06:58):
restrict speech, to prevent thisimminent illegal conduct.
But as to longer-term harms, oh,this speech might encourage
people to attack police officersor to attack the government or
attack particular racial groups,or then uh uh that speech
remains constitutionallyprotected.

SPEAKER_01 (07:18):
And when you say constitutionally protected, what
do you mean by that?
Because again, I know we'll havelisteners that say, but that's
not, you know, that's not rightand that's not fair, even though
that's not what the SupremeCourt does.
They just determine whether ornot it's constitutional.
So what does that mean?

SPEAKER_00 (07:34):
So it's complicated.
As a general matter, theconstitution protects you from
government action.
The first word of the FirstAmendment is Congress.
Congress shall make no law,among other things, abridging
the freedom of speech or of thepress.
That's been extended through the14th Amendment to state and
local governments.
The 14th Amendment starts withno state shall.
So state and local governmentsand the federal government are

(07:55):
constrained by the FirstAmendment.
So you so if speech is said tobe constitutionally protective,
that generally means you can'tbe locked up for the content of
what of what you say.
You can't be fined for the confor the content of the
statement.
You generally can't be suedsuccessfully for the content of

(08:15):
the statement.
Now, uh what if the governmentis 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-12school for such speech?
Sometimes yes.
Can it expite you from collegefor some speech?
Generally, no.

(08:36):
It turns out there are differentrules for different roles.
Likewise, if the government isacting as property owner, it
might say say no vulgarities, novulgarities in the in a
courtroom, let's say.
But it can't say no vulgaritiesin the speech.
What about a park?
It's owned by the government.
But the court says that's atraditional public forum where

(08:56):
the government doesn't get anyextra authority.
So it's complicated.
And yeah, I mean I've taughtclasses where we've spent
several weeks on this questionof uh what happens when the
government is acting in specialroles.
The other thing to keep in mindis this is just the government.
Private entities aren't bound bythe First Amendment.
So if your employer fires youbecause it doesn't like your

(09:17):
speech, doesn't like yourexpress racist views or
anti-police views or anti-Israelviews or pro-Israel views, that
doesn't violate the FirstAmendment.
Now, many states have statutesthat uh limit private employers'
actions.
So it may be that your speechdoes end up being protected even
against your private employer,but that's not directly because

(09:40):
of the First Amendment.
It's because of these statutes,which apply some free speech
principles to private employersand some and in California, also
to private universities andprivate high schools and some
places to private shopping.

SPEAKER_01 (09:55):
So, can I ask a question then?
And I don't know if this fitsunder speech or assembly.
You know, very recently therewere protests around the nation.
Does that fall under freespeech?
Because I'm thinking about thesigns they make.
And, you know, yes, they havethe right to do.
Obviously, they can't create,you know, imminent lawless

(10:17):
action.
But does that kind of fit underspeech?
I think my question is becauseit feels like the First
Amendment, there's not clearboundaries, right?
Between press and speech andassembly, they all kind of marry
together.

SPEAKER_00 (10:31):
Right.
So the First Amendment basicallyprotects the freedom to express
yourself through words and alsoin some measure through certain
kinds of symbolic expression,waving a flag, let's say,
burning a flag in manysituations.
The freedom of the press was theFramers' way of making clear
that that right extends not justto in-person communication, but

(10:53):
also to mass communications.
After the printing press wasinvented, many countries tried
to sharply limit its use becauseit saw the printing, they saw
the printing press as especiallydangerous.
And the Free Press Clause makesclear that that, well, the
government may be able torestrict, again, libel threats

(11:13):
and such, it can't restrictspeech just because it reaches a
large audience.
Freedom of assembly likewisemakes clear that your right to
speak doesn't mean just yourright to speak by yourself or
right to speak in your home.
It's also your right to gatherwith other people in other
places and peaceably to uhassemble, to petition the

(11:34):
government for address ofgrievances, which is to say, to
uh uh argue to governmentofficials that what they're
doing is wrong, and to speakmore broadly.
So so uh the freedom of assemblyis is a pretty broad and
important protection.
It is, of course, limited.
Partly it's limited the same waythat free speech is limited.
You can't assemble, uh excuseme, uh you can't uh threaten to

(11:59):
kill people.
If it's a true threat ofviolence, it is constitutionally
unprotected.
It can be punished.
That's true whether you're doingit by yourself, whether you're
doing it in a tweet, whetheryou're doing it with a large
group of friends on in the citypark.
So there are exceptions tofreedom of assembly like freedom
of speech.
What's more, it's freedompeaceably to assemble.

(12:20):
So if you are uh assembling andyou're you decide you're really
angry at some government agencyor business, you decide to burn
it down or to break its windows.
That's not peaceable assembly.
That's not communication, thatis violence or or vandalism, or
in any case, things that are notprotected by the First

(12:41):
Amendment.
So what if you are blocking theroad?
Well, generally speaking,content neutral restrictions on
assembly, just like some contentneutral 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 aparade permit.

(13:02):
We'll give it to you on acontent neutral basis.
But no, we won't just let youshow up in the middle of rush
hour on Friday and parade downthis street, or especially
parade down some freeway.
We might say, no, you have toparade down this other street at
some other time.
Likewise, just to give anexample of uh controversies that
have been happening a lot overthe last several decades, people

(13:24):
have the right to protestagainst abortion.
They have the right to gather,say, on sidewalks outside
publicly owned sidewalks,outside abortion clinics, and
express their views thatabortion is murder.
They have the right to do thatand they can't have that speech
restricted based on itsviewpoint or in its content.
On the other hand, the city cansay you can't block entrances,

(13:46):
because that is not justexpression at that point.
It is interference with otherpeople's ability to run their
own organizations.
Likewise, it might be able tosay you can't uh use a very
loudly amplified sound outsidewhat is, after all, a medical
facility.
On the other hand, if thegovernment says you can't come

(14:06):
within 36 feet of the abortionclinic, period, of the entrance,
period, regardless of whetheryou're blocking it or not,
regardless of whether you'requiet or loud, that the Supreme
Court said that's unreasonable,even if it's a content neutral
restriction.
That is too broad and toorestrictive.

SPEAKER_01 (14:23):
Thank you so much.
I feel like you took this reallybig, complicated topic and made
it easily accessible for ourlisteners.
So we greatly appreciate yourtime and your expertise with
this matter.

SPEAKER_00 (14:35):
Well, uh, thank you very much for having me.
It was a pleasure.