Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn a Careful Ban

In the wake of the 2017 Charlottesville protests and the recent revival of "white supremacy" rallies, some constitutional scholars have asserted once again that a "hate speech ban" is unconstitutional under the First Amendment. There are certainly strong policy and historical arguments to oppose such a ban, although the Supreme Court upheld such a ban in 1942 and has never overruled that precedent. The doctrinal objection to such a ban is based on a restrictive adoption of Brandenburg v. Ohio, and a failure to fully explicate the alternative ground for prohibition found in the Supreme Court's repeated definition of "fighting words." After a brief and selective review of First Amendment history and twentieth century precedents, this Essay argues that current constitutional doctrine-and most significantly the Supreme Court's 2003 "hate speech" decision in Virginia v. Black-does not condemn a careful ban on racial hate speech that is intended to create injury to, or fear of injury in, its targets. So that critics will have something concrete to shoot at, a potential draft "Hate Speech Prohibited" statute is provided.