A Robust Conception of Speech: Hate Speech and The First Amendment

The United States Constitution does not grant rights to Americans.  On the other hand, the Constitution assumes those rights exist, and restricts the government from interfering with them.  According to John Stuart Mill, “[w]e can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.” If Mr. Mill is correct in his assertion, then the First Amendment’s Free Speech Clause is undoubtedly the most powerful right that individuals retain from the Bill of Rights and the United States Constitution.

A common form of speech that the government intends to prevent is ‘hate speech’ because some critics argue that it has no value in the marketplace of ideas. However, the idea that every citizen is entitled to free speech is indeed a misnomer. First, imagine a middle-aged Black woman walking down the street in a rural part of Mississippi. She hears voices from across the street, but unfortunately cannot make out the speech. Suddenly, someone exclaims, “stupid black bitch!” Immediately offended, she runs into her apartment to seek refuge. Finally escaping, she calls the local police to file a police report. To her surprise, the Sergeant responded that she would be able to file a report, but it would not matter because her neighbors were simply exercising their “freedom of speech.” Although the words were hateful, they were entitled to constitutional protection. Would John Stuart Mill agree with this philosophy or would he believe this woman would have a cause of action for hate speech or fighting words?