Minnesota Governor Tim Walz reiterated his belief that “hate speech” isn’t protected under the First Amendment at last night’s vice presidential debate.

The remarks came after Trump VP pick JD Vance argued censorship is “a much bigger threat to democracy than anything we’ve seen in the last four years,” drawing a contrast to January 6, which Democrats regularly point to as evidence of Donald Trump’s danger to democracy.

“[We do] have a threat to democracy […] It’s big technology companies silencing their fellow citizens, and it’s Kamala Harris saying that rather than debate and persuade her fellow Americans, she'd like to censor people who engage in misinformation.” Vance said.

“You guys attack us for not believing in democracy,” he continued, referring to January 6. “But the most sacred right to the United States democracy is the First Amendment. You yourself have said, ‘There’s no First Amendment right to misinformation’—”

“Or threatening. Or hate speech. You can’t yell fire in a crowded theater… That’s the Supreme Court test.” Walz interjected.

Vance was alluding to comments Walz made in a 2023 MSNBC interview, when he remarked that “there’s no guarantee to free speech on misinformation or hate speech.”

Video of the interview resurfaced in August shortly after Harris announced Walz as her VP pick. While figures like Glen Greenwald and RFK Jr. were quick to express concern about the clip, others downplayed it by claiming the clip was being taken out of context. The mainstream media seems to have entirely ignored the issue.

Likewise, establishment media has yet to report on Walz’s comments about hate speech from last night. NPR’s “fact check” of the debate, for example, dedicates around 2,600 words to fact checking Vance and 200 to Walz. NBC’s “5 key takeaways” of the debate don’t mention the exchange or Walz’s views on free speech. The AP mentions Vance’s comments about censorship, but not Walz’s response; instead framing Vance’s comments as “downplaying January 6.”

Contrary to Walz’s statements, there is no “hate speech” exception to the First Amendment. This is supported by well-established Supreme court precedent. R.A.V. v. City of St. Paul struck down an ordinance prohibiting the display of symbols that “arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.” 2011’s Snyder v. Phelps ruled that even anti-gay protests by Westboro Baptist Church members staged at armed service members' funerals were protected under the First Amendment. In 2017, the court — which included the liberal Ruth Bader Ginsberg — unanimously struck down the disparagement clause of the Lanham Act in Simon v. Tam, with Justice Alito writing: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’.”

The court has treated misinformation similarly. “The First Amendment creates ‘breathing space’ protecting the false statements and hyperbole that are ‘inevitable in free debate’,” according to the nonpartisan Congressional Research Service. “The Court has suggested the government may not regulate false ideas, and even false factual statements receive some constitutional protection.”

Last night’s vice presidential debate was the first to be held during this election cycle, and likely the last.

—Riley Nork