Free speech is protected — and public reason will prevail

On this year’s Sept. 17 Constitution Day, the U.S. Constitution marked its 230th anniversary at a time of intense debate about the meaning of the First Amendment. On campuses and in cities across America, online and in the workplace, there are calls to balance the First Amendment’s protections for hate speech against other values, such as dignity or avoiding emotional injury.

In the courts, however, there is no similar debate about the meaning of the First Amendment. On all sides of the spectrum, justices and judges agree that hate speech must be protected in America unless it is intended to and likely to cause imminent violence.

If America is to remain free, it is essential for us to protect even hateful speech from those who would censor or silence it. This freedom — with the other First Amendment freedoms of conscience and assembly— is part of the bedrock of American liberty.

As Constitution Day reminds us, we should give thanks for this inspiring bipartisan constitutional consensus, which distinguishes the United States from the rest of the world as the country that protects free speech more vigorously than any other. And we should remember the constitutional sources of this inspiring American free speech tradition, so that we can remember why giants of the American Constitutional tradition — from Madison and Jefferson to the great Supreme Court Justices Louis Brandeis and Oliver Wendell Holmes — believed that it is crucial in a democracy for courts to protect what Holmes called “freedom for the thought we hate” in order to ensure that citizens can develop their faculties of reason and govern themselves.

Holmes and Brandeis changed their minds about whether the First Amendment should protect hate speech. Before 1919, they had joined Supreme Court opinions upholding the convictions under the Federal Espionage Act of 1917 of Socialists such as Eugene V. Debs, who criticized World War I and called on his fellow citizens to resist the draft. The Court held that any speech that might have a “bad tendency” to lead to unlawful action in the distant future could be suppressed.

Over the summer of 1919, Holmes and Brandeis changed their mind and came to believe that only speech intended to and likely to clause imminent violence could be suppressed..

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