The First Amendment’s Protection of ‘Hate Speech’ Is Not ‘Despicable’

Ladies and gentlemen, the Arizona Democrats:

“Despicable”? But it’s . . . true. That “hate speech is free speech” is not an “opinion”; it’s a fact. That’s how the First Amendment works. There is, in American law, no such thing as “hate speech.” Subjectively, one might consider some of that speech to be “hateful.” Sometimes, it is. It’s also free speech.

Constitutionally, there are no categories of speech within American law. Under Brandenburg v. Ohio, the only speech that we criminally prosecute in the United States is that which is both “directed at inciting or producing imminent lawless action” and that is “likely to incite or produce such action.” The speech at stake in Brandenburg was uttered by armed members of the KKK, who burned crosses while promising “revengeance” against “N***ers” and “Jews.” Was that hateful? In my view, yes. Was it constitutionally protected? Also yes. For a representative of the government to confirm this while serving on a committee on freedom of expression at public universities is not “despicable,” it is mandatory. The First Amendment applies to Arizona, too, you know. (The Arizona state constitution contains an equivalent right.)

The law aside, the notion that “hate speech is free speech” should be self-evident in a free country. As every other nation in the world demonstrates on a daily basis, there is simply no way of writing a law that prohibits “hate speech” without inviting all manner of government caprice into the bargain. By definition, censorship laws do not empower put-upon minorities but the majorities that are required to pass and enforce them. Look back through American history and you will notice a pattern. The gag rules in Congress bound abolitionists, not slaveowners. The Sedition Acts of 1798 and 1918 were used against anti-war protestors, socialists, and immigrants. The various restrictions that persisted within the states were targeted at civil rights advocates, not at the friends of Jim Crow. Leave aside for a moment that free people enjoy an unalienable right to speak even if what they say is grotesque; as a practical matter, any law that enables the government to silence Citizen A can also be used to silence Citizen B. Free speech is good, even when it protects those we abhor, who, by definition, are the only ones that need protection in the first instance. Arizona’s Democrats would profit from some introspection.