by John Banzhaf

Contrary to widely repeated claims by lawyers and university (including law) professors, government officials, and others who should know better, the Constitution does indeed protect what many call “hate speech,” says public interest law professor John Banzhaf, who has won several major cases involving free speech, and testified as a First Amendment expert.

The New Hampshire Supreme Court ruled this week against a state civil rights ‘hate speech’ law. The law was applied to prosecute white supremacists who held a banner saying ‘Keep New England White’ on a freeway overpass.

This fundamental principle that the Constitution protects hate speech – possibly even the worst kind, racist threats – was recently responsible for this important court ruling which upheld the legal right of an admitted anti-Black neo-Nazi group to illegally trespass to display a banner entitled “KEEP NEW ENGLAND WHITE” which the police had ordered taken down.

One can only wonder, speculated Banzhaf, if similar action would have been taken if the banner had read “KEEP NEW ENGLAND SAFE FOR BLACKS,” or the closely related “BLACK LIVES MATTER.”

Although the judge’s decision was based upon the state’s constitution, the court said that it was “rely[ing] upon federal law only to aid our analysis.”

For example, the Supreme Court, in Matal v. Tam, stressed that this precise position “strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Similarly, in Brandenburg v. Ohio, the justices struck down a law prohibiting public speech that was deemed as promoting illegal conduct as it was being applied to the KKK inciting racial hated, if not violence, based upon that hate.

Also, in R.A.V. v. City of St. Paul, it held unconstitutional a law criminalizing any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” More recently, in Snyder v. Phelps, it ruled that the hateful protests of Westboro Baptist Church were constitutionally protected.

Here the racist group, which described itself in part as a “pro-white . . . dedicated to raising authentic resistance to the enemies of [its] people,” was charged with violating an anti-discrimination statute which prohibited attempts to interfere with the right to be free from “actual or threatened physical force or violence” if the threat is “motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity, or disability.”

The court found that, as charged, the group had engaged in illegal trespass on state property to post its racist threatening message. It also agreed with the state that “prohibiting or discouraging interference with the lawful rights of others by way of bias-motivated conduct (including actual trespass) is a ‘compelling government interest'”; a very high legal standard sometimes applied in constitutional cases.

But it nevertheless found that, because even hate speech enjoys considerable protection under the Constitution, the statute was too broad, and thus racist speech was protected, even though it occurred on private property when the defendants engaged in illegal trespass.

Perhaps this new decision will help dissuade at least some well-meaning professors from telling their students that hate speech enjoys no constitution protection – or, worse, that racist (or sexist or whatever) speech constitutes a form of “violence” so that the use of force to counter it is lawful and justified – since such misleading statements apparently were behind many recent campus riots, says the law professor.

This news analysis was provided by John Banzhaf, Professor of Public Interest Law, George Washington University Law School.