Hate speech and college idiots: a three-part dissection of an erroneous understanding of the First Amendment.
According to Campus
Reform, “A new report has revealed
that support of the First Amendment among college students seems to be
decreasing, as nearly half of students believe that hate speech should not be
It continues, “Conducted
by the Knight Foundation, the survey reveals that 41 percent of college students believe
hate speech should not be protected under the First Amendment, while 58 percent
believe that it should be protected. While the majority of students believe
that hate speech should be protected, 53 percent of college women contend it
should not be protected, as well a majority of black students. “
But it doesn’t end there either, not only do students oppose
protecting hate speech, they also believe that individuals may suppress another’s
speech. “Over half of college students agree that shouting speakers down is
“always” or “sometimes” acceptable. At the same time, 83 percent of college
students agree that using violence to end an event is “never acceptable.””
With these survey results in mind, let’s look at First
What is hate speech?
Much like discussions of assault weapons, those who rail against hate speech have trouble defining it. We know that hate crimes do exist in the context of civil rights legislation, but speech does not exist in the same realm of law unless the speech is an element of a crime or tort. Merriam-Webster defines hate speech as “speech expressing hatred of a particular group of people.” This amorphous definition comes with no legal context.
Fortunately, the Supreme Court and lower courts have
addressed objectionable speech in case after case. Even liberal justices support the right to
express hatred in speech.
Brandenburg v. Ohio:
Racial slurs and advocacy of violence not connected to an imminent lawless
action are protected speech.
Illinois and Chaplinsky v. New
Hampshire: hate speech that we think
of today is only restricted if it is constrained by group libel statutes or the
ambiguous fighting words doctrine. Both of which have been constrained
even more by further case law.
Terminiello v. Chicago:
speech that invites dispute or stirs the public to anger is protected speech.
Collin v. Smith (7th Circuit): Skokie Nazis’ parade is protected speech.
R.A.V. v. St. Paul:
racist symbols cannot be proscribed through content discrimination or viewpoint
Now there are cases that go back and forth on specific
issues or the application of certain tests in a given scenario. Justice Douglas can’t even agree with himself
on Clear and Present Danger. But it is
clear that the historical movement of the court is toward greater protections
of speech. And nowhere do we find a plausible prohibition of “hate speech”
unattached to a criminal act or existing tort.
The history is ironic.
One of the more interesting aspects of this desire to ban
hate speech is that it is being pushed by wretched little campus
communists. These are individuals who, a
hundred years ago, were subject to state laws proscribing communist speech.
Cases like Dennis v.
US, Debs v. US, Schenck v. US, Abrams
v. US, Whitney v. California, and Gitlow v. New York do not bode well
for campus social justice warriors. If
it weren’t for Incorporation, states would have kept their anti-communist laws
and some would have kept their anti-racist speech laws. Instead, the Supreme Court decided to permit
The very problem the college idiots wish to solve
necessitates restricting their own speech.
It’s poetic. At least we wouldn’t
have to hear the A.F. of L and CIO telling us to “seize the means
Even if we avoid restricting communist speech, opening the door to hate speech as a category of less protected speech also opens the door to restricting a left-wing staple…obscenity. If hate speech is a subjective category, just imagine obscenity being restricted along the lines of Justice Potter Stewart’s famous explanation of how to define obscene content…”I know it when I see it.”
that protect also restrict.
One concept that has entered the debate regarding speech is
the Heckler’s Veto. Following cases like Terminiello and Feiner v. New York, authorities had to deal with the possibility of
audiences becoming hostile, prompting the state to suppress the rights of a
speaker. It’s the idea that Speaker A says
something objectionable to Listener B.
Listener B gets angry and wants to stop Speaker A. The police then stop Speaker A to avoid
violence from Listener B.
I used to advise criminal justice students during semester
scheduling. One piece of advice I’d give
them was to take a course on the First Amendment because law enforcement will
encounter scenarios where the free speech rights of citizens are in question.
In the Heckler’s Veto scenario, it is the duty of the police
to protect the speaker’s right to speak. It is impermissible for the police to side
with the hecklers and stop the speaker out of some commitment to public
safety. Speakers are not responsible for
the actions of an audience. That
principle is affirmed in Cohen v.
California. Justice Harlan’s opinion
says that “surely the state has no right
to cleanse public debate to the point where it is grammatically palatable to
the most squeamish among us.” Campus social justice warriors are “the most
squeamish among us” when it comes to the expression of ideas. We don’t curtail
our speech in deference to their fragile egos.
In the introduction to Ben Shapiro’s The Right Side of History, he recounts his experience with
hecklers. College leftists wish to silence debate by any means necessary. They will shout down speakers, threaten physical
harm, and commit acts of violence, all to achieve their simple goal of banning
an arbitrary category of speech, which they subjectively define as “hate speech”
The same principles that protect communist speech and racist
speech, also prevent those opposed to such things from using the power of the
state or criminal acts to shut down disagreeable speech.
Thankfully, the law still has no interest in recognizing
hate speech as a category of less protected speech.