Journal of Law and Policy


The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a presmption against restricting any speech, including hateful or offensive speech. Without this presumption we are left with the govenrment controlling and censoring our thoughts and punishing the thoughts that it fears. Rather than censorship, we should strive to refute hate speech with better ideas, thus enabling people to discover truth, achieve personal fulfillment, and more acutely participate in our republican form of government.