No, there’s no “hate speech” exception to the First Amendment

[Jim Lane]

119. Your version of incitement accepts the "heckler's veto"

Consider two cases:
1. Geller, standing outside a mosque, begins to urge a large armed mob of her followers to go inside and kill Muslims.
2. Geller runs a stupid contest that offends many Muslims, some of whom are unhinged and also own guns.

In both cases, the authorities try to prevent Geller's speech. She pleads the First Amendment. The authorities respond that she's inciting violence because, if they let her speech go forward, shots may be fired.

What result?

Your view seems to be that incitement is incitement and neither act of speech is protected. The crucial difference, though, is that in case 1 the speaker is urging violence. In case 2 the violence is threatened by people who disagree with the speaker. Even if we grant that, in this particular case 2, Geller foresaw that people would be offended, foresaw that some might react foolishly, and actually hoped for that outcome, it doesn't matter. It's still the "heckler's veto", meaning that you would empower people who disagree with speech to shut it down just by threatening violence.

The phrase "heckler's veto" was coined by Professor Harry Kalven, a noted scholar of the First Amendment. Those of us who support the principles of the First Amendment believe that the heckler's veto is never a justification for curtailing speech. If necessary to preserve order, the National Guard should be called out to protect the speaker, even if he or she is purveying hate speech.