The First Amendment, Hate Speech, and Religion

By: Dr. John E. Warren

From time to time, it becomes necessary to remind some of us of what the freedom of speech provision of the First Amendment to the U.S. Constitution actually says while addressing the issue of “hate speech” and the idea of religious freedom.

The First Amendment to the Constitution actually says: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, abridging the freedom of speech. Or of the press, or the right of the people, peaceably to assemble and to petition the government for a redress of grievances.”

“Shall make no laws respecting the establishment of religion.” This means that there shall be no state religion in this country. Hence, all the religions of the world are found in the United States of America. It also means that you are freed to have no religion. It does not mean you have a right to prohibit the faith or practices of another person’s religion. The phrase “or prohibiting the free exercise thereof” means Muslim, Hindu, or any other religion has a right to be practiced in this country without inference from those of a different faith.

“Congress shall make no laws abridging the freedom of speech.” This means Congress can not make laws limiting or stopping one’s freedom of speech. It does not mean that this freedom is without limits. It has long been held that the freedom of speech clause does not carry with it the right to shout “fire” in a crowded theatre where such a shout could cause death or harm. We may have the right to say what we want to or about another person, but that right carries with it consequences, including libel, defamation, and damages for pain and suffering based on the harm caused either physically or emotionally. Hate speech falls within this category because such speech can cause pain, suffering, and, in some cases, even death.

So while Congress can make no laws “abridging” or limiting one’s speech, it has been established that the freedom of speech is not without limits, which includes harm to others. Clearly, there are limits on the freedom of the press.

This means that freedom of speech does not include the right to use offensive language clearly aimed at one’s ethnicity or gender and is, therefore, deemed hate speech.

So it was “hate speech” when members of the public speaking, before the County Board of Supervisors, called the African American Public Health Officer a name associated with a racial stereotype. It was not an act of “hate speech” when a member of the County’s Human Relations Commission abstained from a vote that he disagreed with on the basis of his religious belief as a Pastor. When pressed for a reason for his abstention, he said that it was based upon scripture, which, he quoted, called the conduct in question an “abomination.” This was not “hate speech” but an exercise of his right to a religious belief covered by the First Amendment.

All of us have a duty to understand these First Amendment freedoms and how to apply them without harm and offense, which was the intent from the very beginning language by our Founders. Hopefully, this will help some of us at a very important time with our fragile democracy.