The assassination of Charlie Kirk and its aftermath—including conservatives demanding consequences against those who have criticized Kirk and the brief suspension of comedian Jimmy Kimmel—have fueled a renewed debate over free speech in America.
One particular element of that conversation promises to be particularly fraught: calls to punish “hate speech.” After Kirk’s killing, Attorney General Pam Bondi threatened to “target” and “go after” those who engaged in the practice.
The government, however, generally cannot punish “hate speech” under the First Amendment. There are no “hate speech” laws in America. That makes the U.S. fairly unique. In most other countries, people can be criminally liable for “hate speech,” which is usually defined as statements that disparage racial and religious groups. The U.S.’s unique position on hate speech regulation stems from more than 100 years of history, and the realization that defining this vile speech is difficult, the potential for abuse is great, and such bans may actually harm the very groups they aim to protect.
This historical path for the U.S. was far from preordained. In the 1930s, as fascist groups affiliated with the Nazi Party rose up, the U.S. seemed like it could be on its way toward a regime of hate speech laws like the kind that currently exists in Europe. States and municipalities began proposing and passing laws prohibiting speech that incited “group defamation” or “race hatred.” They hoped to prevent the violence that broke out when the fascists assembled and distributed their propaganda. When America entered the Second World War, states and cities moved to enact additional hate speech laws, in part to prevent race riots that threatened to disrupt industrial production and the war effort.
But support for these laws was far from universal. Perhaps surprisingly, prominent civil rights groups such as the National Association for the Advancement of Colored People…
