This chapter traces a series of stark, occasionally stunning historical reversals by the Supreme Court in interpreting the Free Speech Clause. It highlights doctrines under which the Court treats almost all content-based regulation of speech as constitutionally suspect. That position, which draws little support from research into original constitutional understandings, reflects a commitment – increasingly embraced by conservative justices of a libertarian stripe – to the principle that the Free Speech Clause bars the government from censoring speech based on fears that the speech might prove persuasive to its audience. The resulting doctrine, which makes the United States an outlier among liberal democracies, provides robust protection for a good deal of “hate speech,” some outright lies, commercial advertising, and corporate expenditures to promote political candidates. This chapter also discusses cases that have held that the Free Speech Clause protects a right to “freedom of association” that lacks any clear textual basis. It concludes by considering cases involving speech rights in “managerial domains” in which the government performs functions, such as providing public education, that it could not perform successfully without engaging in content-based regulation of speech.

This chapter offers an outline of the Hate Speech Elimination Act and analyses some of its issues. When the Japanese Diet enacted the Hate Speech Elimination Act in 2016, it was the first law to directly tackle hate speech. The law is unusual because while it clearly declares hate speech to be impermissible, it imposes no penalties upon it. On the one hand, one might argue that the Act properly balances equality and freedom of speech; on the other hand, one might question its effect in combating hate speech. It should be emphasized that the Act requests the national and local governments to implement educational activities to eliminate unfair discriminatory speech and behaviour, as well as to raise awareness among the general public about the issue. Such government activities can be interpreted as a type of ‘government speech’, which can be used to discourage and deter hate speech while avoiding constitutional problems. As such, the Japanese Act may present a modest model that strikes an appropriate balance between freedom of speech and anti-racism.