Hate Speech is Not Protected by First Amendment – JONATHAN TURLEY


Sen. Ben Cardin (D., Md) is ending 2022 on an ominous note after declaring that “if you espouse hate… you’re not protected under the First Amendment.” The statement is obviously untrue, but it is only the latest example of the eroding support for free speech in Congress and the country at large. It is particularly chilling for one of the nation’s most powerful politicians (sworn to “support and defend the Constitution“) to show either a lack of knowledge or lack of fealty to the First Amendment.

He is not the first Democratic leader to make this clearly erroneous statement about the Constitution. Politicians such as Howard Dean have previously voiced the same view. 

The First Amendment does not distinguish between types of speech: “Congress shall make no law … abridging the freedom of speech.” Indeed, the language was explained most succinctly by Justice Hugo Black in Smith v. California: “I read ‘no law . . . abridging’ to mean no law abridging.”

While the court has distinguished “fighting words,” criminal threats and other narrow categories, it does not bestow the government the open right to strip protection of speech that it deems “hateful.”  Indeed, in Brandenburg v. Ohio, the Court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the KKK to speak even though it is a hateful organization.  Likewise, in R.A.V. v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Finally in Snyder v. Phelps in 2011, the Court said that the hateful protests of Westboro Baptist Church were protected.

Sen. Cardin seems to be channeling the European view of free speech. That is also concerning given the growing anti-free speech movement in the country.

We have been discussing efforts by figures like Hillary Clinton to enlist European countries to force Twitter to restore censorship rules. Unable to rely on corporate censorship or convince users to embrace censorship, Clinton and others are resorting to good old-fashioned state censorship, even asking other countries to censor the speech of American citizens. It is an easy case to make given the long criminalization of speech in countries like France, Germany, and England.

This view is being reinforced on campuses where almost half of students believe, like Sen. Cardin, that hate speech is not protected by the Constitution.

As someone who was raised in a liberal Democratic family in Chicago, I do not know when the party went from being the defender of free speech to its most determined nemesis. However, with demands for censorship and the all-out war on Twitter, the Democratic party seems to have crossed the Rubicon on the First Amendment. That leaves many liberals (particularly classic liberals) and independents in a growing bind.

Many of us view free speech as our defining American right. This coming year is likely to see a further escalation in the fight for free speech from the Supreme Court (in the 303 Creative case) to our campuses. Some college presidents have declared that even “disingenuous” speech is not entitled to protection.

Sen. Cardin is a lawyer but appears to hold an extraconstitutional view of free speech. His view of the First Amendment is not simply flawed but dangerous at a time when we are engaged in an existential fight for free speech.

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