Brief #164 – Civil Rights Policy

Free Speech vs. Hate Speech And Conflict At The ACLU

By Rodney A. Maggay

June 12, 2021


Policy Summary 

On June 7, 2021 the New York Times published an article that illustrated conflicting priorities in the ongoing free speech vs. hate speech debate.

The First Amendment of the United States Constitution provides that “Congress shall make no law…abridging the freedom of speech….” On the other hand “hate speech” has no precise definition. The United Nations acknowledges no legal definition but characterizes hate speech as any “communication…that attacks or uses pejorative or discriminatory language with reference to a person or group on the basis of who they are….” The United Nations also acknowledges that what can be considered “hateful” is often hotly disputed.

The American Civil Liberties Union (ACLU) is a national (with local affiliates) and non – partisan organization comprised of 500,000 members who continue to fight government abuse and who strive to vigorously defend individual freedoms such as speech and religion, the right to due process and many more civil liberties.

In the New York Times article by Michael Powell, he lays out how this debate has created a divide among the staffers who have brought cases on behalf of the clients the ACLU represents. On one side are those who have advocated that the free speech protections of the First Amendment should not apply to far – right hate groups and should not be defended by the ACLU. On the other end of the spectrum are those who argue that the ACLU should defend all speech even if the speech spouts hate and is viewed as offensive to marginalized groups. These competing positions have led to accusations that the ACLU is no longer interested in defending free speech as a positive legal concept but only in defending free speech cases that align with liberal and progressive values and causes. LEARN MORE


Mr. Powell’s article regarding the internal divisions at the ACLU resembles a similar evolving view of free speech and the First Amendment among Americans in the twenty – first century. For the most part during the first one hundred years of its existence, the ACLU strived to defend the concept of free speech even if that meant defending the free speech of individuals, organizations and groups whose message was often viewed as repugnant and offensive. The current internal strife at the ACLU should not be considered a situation unique only to the ACLU but one that modern day American society is grappling with too in regards to how the First Amendment’s protections of free speech should be utilized.

While progressive and liberal policy proposals are the current best hope to transform America into a positive and more accepting modern society, free speech must not be tied to specific policy proposals or only to policies that are currently popular. The value of free speech is strongest when it applies to every citizen, every citizen knows it applies to everyone else and is applied in an even – handed manner that does not discriminate based on the subject matter of the speech. The ACLU demonstrated that it could defend all types of free speech with their prior defense of Nazis, white supremacists and other groups with hateful messages. The goal back then was not supporting or endorsing a specific message or viewpoint but ensuring that the right of free speech remained available to all regardless of message and that free speech was not merely available for just a select few.

Hate speech has complicated that. And, as described by Mr. Powell in his article it has caused a conflict among ACLU staff as to whether they can continue defending clients who spout messages of hate. But, the distinction being taken by ACLU staff and likely among most of modern society is not the best position to take. If the intent is to strengthen, encourage and transform free speech into a workable tool for the social media age the First Amendment must remain content neutral so that everyone knows that their message will not be censored because of its subject matter. What may seem to be a difficult viewpoint decades ago could turn out to be the accepted position today (e.g. Civil Rights Movement). 

Also, a conundrum is who decides what is hate speech and what is not. There are segments of society who would be quick to label Black Lives Matter and their message a hate group. Legitimate speech communications and activities (such as the Boycott, Divest and Sanction (BDS) Movement) in favor of the Palestinians in the Middle East could also be labeled hate speech when it could simply be a discussion on the merits of U.S. foreign policy in the region. Since the U.N. has not definitively defined hate speech in a legal context and the U.S. Supreme Court has never created a category of hate speech and never determined whether it is protected speech, a distinction between free speech and hate speech may be premature. Other factors can be taken into consideration such as the immediacy of violent conduct and satire. American law currently permits speech that advocates incitement of lawless action unless the incitement is directed to inciting imminent lawless action and lawless action is likely to occur. When measured against this legal standard, most hate speech would not be banned. And it would appear that it could not be banned on social media platforms unless a social media post would incite violence “immediately” and it appears violence is “likely.” President Trump’s rally prior to the January 6, 2021 Capitol riot might appear to satisfy this legal standard to hold the President accountable but even then it would be a close call. This helps to illustrate why it would be hard to pin down hate speech in terms of being banned because of its content and in formulating rules for social media platforms.

Speech cannot be regulated by its subject matter because that will only lead to a narrowing of the concept of free speech. If that happens then that might give others pause about speaking out on current unpopular policies. In Mr. Powell’s article at the very end he relates a story where black civic leaders in New York City applauded a white ACLU lawyer who defended the Ku Klux Klan’s (KKK) right to march in New York City. The black civic leaders reasoned that if the government could block the rights of the KKK to march then that same government power could be turned around and used to prevent African – American leaders from exercising their own free speech rights. It is not about supporting repugnant ideas but about ensuring that free speech rights apply to all. This is the original mission of the ACLU and one they should not waver from even in these challenging times. LEARN MORE

Engagement Resources 

United Nations Plan of Action on Hate Speech – summary of how hate speech is being researched and approached by the United Nations.

American Civil Liberties Union (ACLU) – Defending Speech We Hate – summary of how the ACLU has defended “speech we hate” with list of cases.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact:

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