I used to be a First Amendment absolutist when it came to freedom of speech. But the violent occupation of the Capital Building January 6 has changed everything.
It became clear to me that hate speech — using a Big Lie to defame, demean and diminish other people — logically cannot be protected by the First Amendment because it undermines the free speech, and free thought, of individuals and groups also protected by the egalitarian nature of the U.S. Constitution.
In exercising their free speech, hate mongers use propaganda to make it impossible for others to freely, and safely, express themselves and be heard. Propaganda intellectually swindles large groups of people into believing what would otherwise be unbelievable accusations against another group of people, casting them as an enemy or a species of sub-humans to be enslaved or “liquidated.”
Hate speech weaponizes the First Amendment.
I used to think it was better to know what haters were thinking by listening to what they had to say than it was to suppress them, which I thought would be thwarting the will of the Bill of Rights. But hate speech never just stays in the marketplace of ideas to be demolished by logic and morality. It floods the streets with riot and mayhem. All hate speech is a subset of Goebbels Talk, propaganda techniques used by the Nazis to spread the lethal hate of anti-semitism that resulted in the Holocaust. The basic tools of repeating hateful and harmful lies, false accusations, over and over again, of dreaming up conspiracies and spreading them like virulent diseases, of feeding distortions and elaborate cons to the media, are all techniques designed to undermine the First Amendment’s universalist guarantees.
The First Amendment is meant to protect everyone from governmental censorship. It is egalitarian across the board. If “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition Government for a redress of grievances,” then it seems reasonable to say that the people who are represented by the government can’t, or shouldn’t, either. That seems morally self-evident.
When representatives in the House impeached President Trump for the second time last week, accusing him of inciting insurrection against Congress, they were using arguments that fall on the spectrum that includes opposing both propaganda and falsely inciting panic by shouting fire in a crowded theater when there is no fire. Both use falsehoods to deprive other people of their liberty to think and act freely, and to deprive them, perhaps, of even their lives.
This kind of hate speech and Goebbels Talk by the leader of the executive branch of government directed against the opposition membership of the legislative branch of government is not, it seems to me, morally protected by the First Amendment, nor is the insurrection it caused protected by the body of law in our country. The Supreme Court ruled, indirectly, long ago against such speech in the unanimous decision written by Justice Oliver Wendell Holmes in the otherwise odious case of Schenck v. United States in 1919.
A World War II case charging that publications opposed to the draft were not protected by the First Amendment in wartime, Schenck occasioned an opinion by Justice Holmes that sharpened the edge against hate speech that incites violence.
Holmes wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Hate speech can’t help but create a clear and present danger to those who are the object of its infamy.
When President Trump incited insurrection by his followers January 6, he enflamed people who were already espousing prejudices against government, hatred of minorities and ideologies constructed around terrifying conspiracy scenarios that by their very nature offend the equalitarian nature of the Constitution. Any kind of hate mongers and “supremacists” — be they white, religious zealots, misogynists, conservatives, Jim Crow terrorists — work their dirt into society by promoting, through propaganda, the horrible burdens and treacherous dangers of false inequality. It’s a vile, morally nauseating misuse of free speech that insults the single most important and foundational understanding of our free society — the unequivocal equality of all people in the eyes of the law and the culture that it embodies and defends. The First Amendment should never be its shield.
*Nullius in verba: take nobody’s word for it
B, Thank you for this. Spot on!
You touch on a subject that has long been difficult to deal with, and you do it brilliantly as always. As someone who three decades ago was ordered deported as a result of opinions expressed in some of my books, I have experienced the brute hand of censorship. I deeply value freedom of speech and diversity of expression. But I don’t believe speech that endangers the safety of others should be free… or permitted. It’s a delicate line, but those who want the common good can surely learn to walk it. Discerning its limits is necessary to a society that works for all.
I’ve been listening to a lot of protest songs recently and one of the things I’m trying to get a grasp on is how these songs, written to support equality, diversity, workers rights, etc… can also by what we might call ‘the other side’ to support their beliefs and their issues and concerns and complaints. I guess what I’m getting at is while I agree that Hate speech, when it incites violence, should not be protected under the first Amendment, I worry about who gets to define what hate speech is. I do not trust anyone in ruling class (ie folks who are career politicians) to own that responsibility EVEN IF I AGREE WITH THEM. Now my cynicism is not based on the last 4 years but the last 50+.
Your evenhanded analysis and commentary helps to clarify a very complicated argument. In fact, “Hate speech weaponizes the First Amendment” just about says it all. Policing public media is a frightfully difficult and potentially dangerous thing, but at the same time, as we have seen, a culture that doesn’t distinguish lies from truth places finds itself in limbo. ‘Truth’ it seems has become a major casualty of our times.