The Law on Free SpeechThe First Amendment to the U.S. Constitution is the first because free speech is the most essential element of a free society. Professor Volokh provides a handy short form guide to its scope for those who never knew or forgot it or who, unfortunately, get their schooling from the media:
I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam -- or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens -- as one is to condemn capitalism or Socialism or Democrats or Republicans.
To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” -- face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible.
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The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.
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For this very reason, “hate speech” also doesn’t have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define “hate speech” -- any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.
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Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans or blasphemy or flag burning or anything else). Perhaps some statements of the “This isn’t free speech, it’s hate speech” variety are deliberate attempts to call for such an exception, though my sense is that they are usually (incorrect) claims that the exception already exists.
In the guise of protecting the delicate sensibilities of college students who can’t study calculus or gender studies without terror because of "microaggressions" (speech by those with whom they disagree) and need blankies and safe rooms, universities often clamp down on free speech. These restrictions are incompatible with civil liberties and often discarded after court challenge, but
the notion that we need regulatory earmuffs seems a popular one with the journalist class. This seems odd because you’d think if they were doing their jobs they’d most respect the constitutional protection.
Perhaps all they really want is an unchecked monopoly on what we can speak. Or maybe they are just cowards afraid they’ll face the Moslem extremists they are pretending don’t really exist.Read more:
http://www.americanthinker.com/articles/2015/05/can_we_talk_.html
