The First Amendment of the United States Constitution protects one of our most fundamental rights: the right to free speech. This freedom lies at the core of American democracy, but its boundaries are often misunderstood, especially when controversial or offensive speech is involved. In particular, many people are unclear about whether hate speech is protected under the First Amendment.
The short answer is yes. Hate speech is protected in most cases, but there are important exceptions. Even more concerning is a form of government overreach known as “jawboning,” where public officials pressure private actors to punish speech the government cannot legally restrict on its own.
In this article, we will explore what the First Amendment protects, what it does not, how hate speech is treated under current law, and what to do if your rights have been violated. As a criminal defense attorney and former prosecutor, I believe every citizen should understand where their rights begin and where government power must end.
What Speech Does the First Amendment Protect?
The First Amendment begins with a simple yet powerful statement:
“Congress shall make no law… abridging the freedom of speech.”
This language, while brief, has been the basis for decades of legal interpretation and court rulings. Generally speaking, the government may not restrict speech simply because it is offensive, unpopular, or controversial. The protection is broad, but not absolute.
There are a few specific categories of speech that are not protected by the First Amendment. These include:
-
True threats: Speech that communicates a serious intent to commit unlawful violence.
-
Incitement to imminent lawless action: Speech that encourages immediate illegal activity and is likely to result in it.
-
Obscenity: Certain graphic material that meets a three-part legal test and has no serious value.
-
Defamation: False statements that damage someone’s reputation.
-
Fighting words: Face-to-face insults that are likely to provoke a violent reaction, although this category is rarely applied today.
Outside of these narrow categories, the government may not censor or punish someone for what they say, no matter how offensive others may find it.
Hate Speech and the First Amendment
So where does hate speech fall?
Legally, there is no category called “hate speech” that is excluded from First Amendment protection. Speech that promotes hateful or discriminatory ideas is protected unless it crosses into one of the unprotected categories listed above.
For example, expressing bigoted views about a racial or religious group is not illegal, unless the speech includes a direct threat or urges immediate violence. Courts have consistently affirmed this principle.
In Brandenburg v. Ohio (1969), the Supreme Court ruled that speech advocating violence or illegal action is protected unless it is intended to incite imminent lawless action and is likely to produce it.
In R.A.V. v. City of St. Paul (1992), the Court struck down a city ordinance banning hate speech, holding that the government cannot punish speech based on its content, even if the speech is offensive or hateful.
These cases underscore a central point: the government may not criminalize hate speech solely because it is hateful.
Government Confusion and Retractions
Despite clear precedent, public officials occasionally make statements that suggest hate speech could be prosecuted. When someone in power, such as an Attorney General or even the President, claims that hate speech should be criminally punished, it spreads confusion and chills lawful expression.
In one recent incident, a state Attorney General stated publicly that her office would seek to prosecute hate speech. This prompted immediate backlash from constitutional scholars and civil rights advocates. She later retracted her statement, acknowledging the legal limitations on such actions.
That retraction was necessary. Prosecuting someone for speech that does not meet the legal standard of a true threat or incitement would clearly violate the First Amendment.
Speech Has Private Consequences
While hate speech is protected from government punishment, that does not mean there are no consequences at all.
Private individuals, companies, and organizations are not bound by the First Amendment in the same way the government is. This means:
-
An employer can fire someone for making offensive statements, especially if it damages the company’s reputation.
-
A social media platform can suspend or ban a user for violating community standards.
-
Friends, family, and neighbors can distance themselves from someone whose views they find offensive.
These are private consequences, not government actions. As such, they are generally legal and do not raise constitutional concerns.
When Private Action Becomes Government Action: Jawboning
However, when the government pressures or influences a private party to take action against someone for their speech, that raises serious constitutional questions. This practice is known as jawboning.
Jawboning occurs when public officials attempt to accomplish indirectly what they cannot do directly. For example, a government official might “suggest” that a media outlet remove a commentator, or that a social media platform suspend a user, not through a law or court order, but through implied threats or political pressure.
In these cases, even though the action is taken by a private party, the government’s influence may convert it into a constitutional violation. Courts have held that if a private actor’s decision is the result of coercion by the government, it can be treated as state action.
Why Jawboning Is Dangerous
Jawboning undermines the core protections of the First Amendment. It allows the government to suppress disfavored speech without accountability. Because it often happens behind the scenes, the public may not even be aware that the government was involved.
This practice is especially troubling in the digital age. Most modern speech occurs online, through platforms that are privately owned. If the government can pressure those platforms to remove certain views, it can control public discourse without passing a single law.
The danger is not limited to one political party or administration. Any government actor, regardless of ideology, who uses their position to silence speech is abusing power.
At PKN Law, we are committed to challenging these abuses and defending the rights of individuals whose voices are under attack.
Real-World Examples of Jawboning
Jawboning is not a theoretical problem. It has happened before and may be happening right now.
For example, during the COVID-19 pandemic, there were reports that government agencies communicated with social media companies about removing posts considered misinformation. While the goal may have been public health, the tactic raised concerns about censorship and government overreach.
In another case, a media figure was reportedly removed from a television network after criticism from government officials. If those officials used their influence to pressure the network, it could represent unconstitutional jawboning.
Each case must be examined carefully, but the underlying principle remains the same: the government cannot use private actors to do what it is forbidden from doing itself.
What You Can Do If Your Rights Are Threatened
If you believe your speech has been targeted due to government influence or pressure, it is important to act quickly and protect your rights.
Here are some steps you can take:
-
Document everything. Keep records of emails, messages, or public statements that suggest government involvement.
-
Avoid responding emotionally. Do not make public statements or retaliate without legal advice.
-
Speak with a qualified attorney. A lawyer who understands both criminal defense and constitutional law can evaluate your situation and help protect your rights.
At PKN Law, we provide experienced legal representation in both state and federal court. Whether you are facing prosecution, job loss, or reputational harm because of your speech, we are here to help.
Hate speech is offensive and harmful, but in most cases, it is still protected by the First Amendment. The government may not criminally punish speech simply because it is unpopular or discriminatory. However, private individuals and organizations may impose consequences, and those are generally legal.
The real threat arises when the government uses informal pressure or coercion to silence speech. This tactic, known as jawboning, violates the spirit and the letter of the Constitution.
If you believe your rights are under threat, or if you are facing legal consequences related to your speech, contact PKN Law today. We are here to defend your rights and hold the government accountable.
For a confidential consultation, contact PKN Law at (412) 454-5582 or visit https://patricknightingale.com