Offensive Speech and the Hate Speech Debate

The United States protects offensive and even hateful speech more broadly than most democracies. In Snyder v. Phelps in 2011, the Supreme Court ruled 8-1 that members of the Westboro Baptist Church could not be held liable for picketing near a Marine's funeral with hateful signs, because their speech addressed public issues on public land. In Matal v. Tam in 2017, it unanimously struck down a federal rule denying trademarks to disparaging names, in a case brought by an Asian American band called The Slants.

Supporters of this approach argue that government cannot be trusted to decide which ideas are too hateful, and that the answer to bad speech is more speech. Many other democracies take a different view. Germany criminalizes incitement to hatred and Holocaust denial, and Canada's Supreme Court upheld a hate propaganda law in R. v. Keegstra in 1990. Supporters of those laws argue they protect human dignity and vulnerable groups. Students can compare the costs and benefits of each model.