Hastings Constitutional Law Quarterly


Rory K. Little


In the wake of the 2017 Charlottesville protests and the recent revival of "white supremacy" rallies, some constitutional scholars have asserted once again that a "hate speech ban" is unconstitutional under the First Amendment. There are certainly strong policy and historical arguments to oppose such a ban, although the Supreme Court upheld such a ban in 1942 and has never overruled that precedent. The doctrinal objection to such a ban is based on a restrictive adoption of Brandenburg v. Ohio, and a failure to fully explicate the alternative ground for prohibition found in the Supreme Court's repeated definition of "fighting words." After a brief and selective review of First Amendment history and twentieth century precedents, this Essay argues that current constitutional doctrine-and most significantly the Supreme Court's 2003 "hate speech" decision in Virginia v. Black-does not condemn a careful ban on racial hate speech that is intended to create injury to, or fear of injury in, its targets. So that critics will have something concrete to shoot at, a potential draft "Hate Speech Prohibited" statute is provided.