The First Amendment and Hate Speech

The First Amendment to the United States Constitution is the source of some of the most important rights American citizens possess.  In fact, the United States Supreme Court has been very generous in its interpretation of the First Amendment and erred on the side of giving citizens as much right to freedom of expression as possible.  In the current political climate, there is lots of talk about free speech and what the First Amendment protects.

The attorneys in our firm are dedicated to the protection of our client’s First Amendment rights and have appealed orders for contempt when the court has held our clients in contempt for exercising their right to freedom expression.  You can review In re: Marriage of Weddigen, which was briefed and argued by yours truly, to see an example of this.  In Weddigen, the trial court held Mr. Weddigen in contempt of court for making posts on Facebook encouraging people to record their court proceedings.  Not only did the trial court hold Mr. Weddigen in contempt, but it also ordered that Mr. Weddigen could purge himself of contempt by writing an apology and retraction of the statements and posting it to social media.  The appellate court reversed the trial court’s finding of contempt on grounds other than the First Amendment, however, the trial court’s rulings provoked a heated concurrence from Justice Steigman that attracted the attention of multiple legal newsletters, the Illinois Bar Journal, and even the Washington Post.  In his concurrence, Steigman admonished the trial court that the judiciary cannot be “delicate snowflakes” and reminded the trial judge that even though he did not like the things Mr. Weddigen had to say about him, the First Amendment protected Mr. Weddigen’s right to say them.  Justice Steigman reiterated that the First Amendment is the “crown jewel” of our constitution and that “even imminent danger cannot justify restrictions on speech unless the evil apprehended is relatively serious.”

Our appellate courts–both state and federal–have consistently interpreted the First Amendment as forbidding our government, at all levels and in all branches, from unjustifiably restricting our rights to speak our mind freely.  And it is this fact, the fact that we as American citizens have almost carte blanche with respect to expression, that makes the acts of certain hate groups in this country so appalling.  The First Amendment protects their right to say and believe heinous things, even if their heinous beliefs have no basis in fact or reality.  Of course, this does not mean that it is good, just, or wise to do so.  And when hateful words are combined with harmful actions–or even acts that threaten imminent harm–the First Amendment provides no shelter from prosecution.  It is sometimes said that one person’s liberty ends where another’s nose begins; in other words, our rights, great as they are, stop where they threaten the safety of our neighbors.