The modern concept of the freedom of speech did not dawn until the Warren Court in the 1960s. In two cases, the Supreme Court ruled that there is no such thing as hate speech and the government may not do indirectly what it is prohibited from doing directly.

In 1969, in Brandenburg v. Ohio, the court ruled that all innocuous speech – even that of a KKK leader publicly condemning Blacks and Jews– is protected and all speech is innocuous when there is time for more speech to challenge it. The court had already ruled six years earlier in Bantam Books v. Sullivan that public officials’ threats to punish publishers unless they silenced their authors were prohibited by the values underlying the First Amendment.

At the core of both of these cases and their progeny is the First Amendment principle that the government – once this meant only Congress; today it means all government – may not evaluate or act upon the content of speech; it may only neutrally regulate time, place and manner. Thus, the use of a bullhorn on a public street in a residential neighborhood to advance a political cause at 3 a.m. may be prohibited because it unreasonably disturbs sleep, not because the government hates or fears the message.

Just last year, the Supreme Court unanimously upheld the values underlying these opinions.

Prior to the Warren Court, and notwithstanding the pithy language of Thomas Jefferson or the direct language of James Madison in the Bill of Rights, the federal courts equivocated in their protections of speech. In wartime, the courts often looked the other way as presidents and Congresses tried to silence and punish the words they hated or feared.

Both Jefferson and Madison believed that the freedom of speech is a natural right. This view originated with Aristotle, was refined by St. Augustine, was codified by St. Thomas Aquinas, and was argued compellingly for jurists by John Locke and for the masses by John Stuart Mill.

The use of the word “free” in the phrase “free speech” does not mean speech without cost. It means speech without government. If my neighbor shouts me down, I can shout louder. If the police shout me down, I fear the consequences of shouting louder.

Was a late-night comedian taken off air for a week because of a business judgment made by his employers or because the Chair of the Federal Communications Commission threatened his employers unless they silenced him? If the former, there is no free speech issue, as there is no government involvement. If the latter, the government has attempted to do indirectly what it surely may not constitutionally do directly – evaluate and act upon the content of speech.

Such an evaluation runs directly counter to the modern free speech jurisprudence. The courts call this “chilling.” Chilling, too, violates the First Amendment.

Is hate speech protected by these values? Today, there is no such thing as hate speech. There is hateful speech; it demeans persons due to an immutable characteristic or event. There is offensive speech. There is disgusting speech. There is evil speech. And there is contrarian speech. We all know these words when we hear them. Yet, since the government is prohibited from evaluating the content of speech, all speech is protected.

The whole purpose of the First Amendment is to protect the speech most folks find offensive since the speech we love to hear needs no protection.

Why is government discontented with free speech? Why did Jefferson and Madison craft restraints on government? Because neither trusted the government. Government is irrelevant to speech.

What to do about the speech we hate? Ignore it or challenge it. But don’t silence it. A government that can silence the speech you hate today can silence the speech you love tomorrow.