Introduction – First Principles

So often has the constitutional protection afforded to “hate speech” by the First Amendment to the U.S. Constitution been contrasted with more restrictive laws in other democratic societies, that it may be useful to offer a bit of context to the American approach. Consider two U.S. Supreme Court decisions from 2010 in what may seem to be unrelated areas.

The first is United States v. Stevens, which held unconstitutional under the First Amendment a federal statute that criminalized the commercial creation, sale, or possession of “a depiction of animal cruelty.” Seeking to persuade the Court to affirm the constitutionality of the statute, the United States proposed a novel legal test, one never before adopted by American courts. As the Court summarized the government's position, it urged “that a claim of categorical exclusion [from the First Amendment] should be considered under a simple balancing test.” The test was “[w]hether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”