Although the first article of amendment to the Constitution of the United States states that

Congress shall make no law ... abridging the freedom of speech

this proscription is far from absolute, as various forms of speech that cause harm to others can give rise to civil or criminal liability.

Given the numerous forms of harmful speech not protected by the First Amendment (many of which are less-potentially-harmful or less-directly-harmful than many forms of hate speech), it strikes me as extremely odd that hate speech is a form of protected speech which cannot constitutionally be restricted by Congress or the states:1

  • If Dỳo libels Isabel's restaurant in his magazine column, causing his readers to avoid her restaurant and resulting in her losing business, Isabel can sue him for causing her financial loss via his libel.
  • If Sirleck kills Francine by speaking a lethal auditory cognitohazard, he can be arrested and tried for murder. (Even if he "merely" puts her in a vegetative state or drives her insane, he can still be arrested and tried for that.)
  • Yet, if Ronald kills Kayleigh by using incessant transphobic hate speech to drive her to suicide (or "merely" causes massive psychological trauma resulting in various delightful severe psychological and psychiatric disorders), he gets off scot-free.

Why this perplexing inconsistency in what, harmful-speech-wise, is constitutionally-permissible and what is not?

1: The argument given in this answer to a related question, that

The key is that holding these beliefs, and stating these beliefs, hurts nobody.

doesn't hold water, as, while holding hateful beliefs (without stating or acting on them in any way) is indeed harmless, stating hateful beliefs can cause real, concrete, immense, and potentially-lethal2 psychological harm to the victim of this speech.

2: As (among many many other examples) the countless LGBTQ+ children and teenagers who've been driven to suicide by being victims to incessant hateful speech could testify (were you to reanimate them with their mental faculties intact, at least).

  • "a lethal auditory cognitohazard" - a what? Commented Mar 26, 2023 at 20:54
  • @preferred_anon: A sound that kills you if you hear it.
    – Vikki
    Commented Mar 28, 2023 at 0:06

3 Answers 3


One notes your third example is rather more specific: you describe someone as being driven to suicide. People have been held accountable for counselling people to commit suicide (as in this Ottawa case, where two girls were charged). What does "hate crime" add to the situation, especially given it covers only a small subset?

As for the claim that "hate speech" in general causes suicide in the group, it is impossible to establish a direct connection between the speech and the death, let alone that it caused the death, given that you have to exclude other factors.

Alleging direct psychological harm from the speech means, basically, that anyone, anywhere, can be silenced at any time in the absence of actual evidence.

Furthermore, a lot of forms of speech can cause people to commit suicide. A son may commit suicide on hearing that his comatose father is recovering, because he was embezzling his father's property and realizes he will be found out. That speech is not punishable, and it's far more direct.


Because the US has a different history from the rest of the developed world

Anti-hate speech laws are consistent with free speech in Canada, Australia, the UK, most of Europe etc. They just aren’t consistent with free speech as it is practiced in the USA.

The legal basis is simple: the Constitution prohibits government interference in free speech in simple and straightforward language and the Supreme Court has interpreted that to mean that anti-free speech laws are subject to strict scrutiny. Defamation laws are not an abridgement because the government is not involved: defamation involves one person suing another.

The philosophical basis for the distinction between the US and Europe is also straightforward. The US was a colonial nation who fought a war of independence against what they saw as a foreign tyrannical government and most of the Constitution is about placing limits on government so that wouldn't happen again. European nations mostly have Constitutions that were developed after the Second World War where they had seen their own governments taken over by people who weaponised hate speech (or if not them then their neighbours who then invaded them) and used it to kill millions of people and they wanted to prevent that from ever happening again. The UK and the rest of the Commonwealth, as with many things, tend to fall somewhere in the middle.

  • 2
    This is incorrect on a surprising number of levels. Most critically with the respect to the actual answer, the government is, of course, very involved with defamation laws. Legislatures write defamation laws, police sometimes enforce them, and courts enter orders penalizing people for violating them.
    – bdb484
    Commented Mar 26, 2023 at 23:56
  • A law specifying how a wronged individual can seek redress is not Ipsy facto government action.
    – Dale M
    Commented Mar 27, 2023 at 2:25
  • 1
    Making laws is definitely government action, but that's not really the point. The point is that the First Amendment doesn't speak in terms of "government action" against free speech; it says the government shall "make no law" infringing free speech. The government made libel laws, and OP is asking how they survive First Amendment scrutiny while hate speech laws do not. This answer responds incorrectly to that question, which is an all-too-common consequence of answers supported by zero sources.
    – bdb484
    Commented Mar 27, 2023 at 2:46

The key difference between hate speech and libel (i.e. written defamation) is that a libelous statement can always be objectively proved to be true or false. Hate speech simply can't — it's always a view/opinion, not a statement of fact.

That's basically why any laws trying to silence views/opinions get knocked down by the First amendment. Conversely, silencing objectively false statements that cause harm is deemed beyond the reach of it.

  • 1
    But the reason for defamation being illegal is that it's harmful, not that it's false.
    – Vikki
    Commented Mar 25, 2023 at 22:39
  • 1
    @Vikki Only when it's false. Harmful but truthful statements are allowed. Can you prove me wrong?
    – Greendrake
    Commented Mar 25, 2023 at 22:41
  • 1
    Say someone recites classified information over a public radio station. That's an instance where a truthful but harmful statement is banned.
    – Vikki
    Commented Mar 25, 2023 at 22:48
  • 1
    @Vikki That has nothing to do with defamation. Classified info is protected by separate laws.
    – Greendrake
    Commented Mar 25, 2023 at 22:49
  • 1
    This isn't a discussion specifically about defamation; it's about the legality of restricting truthful speech due to it being harmful. A law criminalizing harmless releases of classified information would be no more constitutional than one criminalizing making false-but-harmless claims about someone.
    – Vikki
    Commented Mar 25, 2023 at 22:53

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