Free, Hateful, and Posted: Rethinking First Amendment Protection of Hate Speech in a Social Media World

Abstract

Speech is meant to be heard, and social media allows for exaggeration of that fact by providing a powerful means of dissemination of speech while also distorting one’s perception of the reach and acceptance of that speech. Engagement in online “hate speech” can interact with the unique characteristics of the Internet to influence users’ psychological processing in ways that promote violence and reinforce hateful sentiments. Because hate speech does not squarely fall within any of the categories excluded from First Amendment protection, the United States’ stance on hate speech is unique in that it protects it. This Note argues that the harms of hate speech, when combined with the psychological impacts of social media on users, require us to accept that existing First Amendment doctrine simply is unable to accommodate the new modes of communications afforded by cyberspace and to amend the doctrine accordingly.