After a school year rocked by protests on college campuses, the Supreme Court unanimously reaffirmed that there is no so-called "hate speech" exception to the First Amendment on Monday. Though the case in question was not related to campus free speech controversies, the two opinions issued by the justices agreed on a point that's been central to the debate over free speech raging across institutions of higher education.
The Washington Post's Eugene Volokh summarized the case as such:
In [Matal v. Tam], the government refused to register "The Slants" as a band's trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasn't trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional.
"And this no-viewpoint-discrimination principle," Volokh added, "has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more."
In his opinion on the case, Justice Samuel Alito wrote, "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.'"
Justice Anthony Kennedy, in a separate opinion, echoed Alito's sentiments. "A law found to discriminate based on viewpoint is an "egregious form of content discrimination," which is "presumptively unconstitutional,'" Kennedy wrote, continuing to say, "A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all."
"The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society," he concluded.
As progressive student activists on public campuses sought to shut down conservative or Trump-supporting speakers last school year (something the movement has done to conservatives for years), many argued their efforts were within the boundaries of the First Amendment because engaging in "hate speech" is not a constitutionally protected act. That is false. These young progressives also expand the definition of "hate speech" to include perfectly reasonable, though traditional, viewpoints on issues such as marriage and gender, but I digress.
Amid the uproar over Ann Coulter's scheduled lecture at the University of California-Berkeley, even Howard Dean, a former governor and head of the DNC, got in on the action, tweeting point blank, "Hate speech is not protected by the first amendment."
Though Dean was thoroughly corrected at the time, the Supreme Court's reaffirmation on Monday is another reminder to those who may justify similar acts of censorship when students return to campus in the fall.
Emily Jashinsky is a commentary writer for the Washington Examiner.