Matal v. Tam: A Historical Perspective on Hate Speech, Its Protection and Its Regulation

There are certain clear-cut instances where speech is used only to harm, where the context of the situation does not affect or alter the meaning. These instances, however, are rare. The issue presented in Matal v. Tam (2017) highlights the government’s inability to, and difficulty in, attempting to prohibit assumed offensive content. This thesis argues that even in the rare and overt instances, the government is required to abstain from regulating hate speech, and that the government will not be able to successfully adopt advocate proposed hate-speech regulations. This thesis embraces the concept of precedent as the most binding force in First Amendment questions. It also begins argumentation at the most important era of First Amendment issues, and then analyzes numerous cases spanning nearly one hundred years. Utilizing case rulings, this thesis examines the American social context, as well as academic and historical writings, throughout the past century. Ultimately, this thesis finds that the decision in Matal was not surprising, and that it supports a contemporary First Amendment jurisprudence that believes in a strong divide between the government and private speech. The implications of Matal have been almost immediate, with several lawsuits being decided or brought to court based on the precedent. The decision implies that hate-speech regulations, already given little credence, will share a similar outcome to the law in Matal.