Hate Speech Is In Fact Protected Speech
Where there is a great deal of free speech there is always a certain amount of foolish speech (Winston Churchill)
For the love of all that’s holy everyone, but especially our elected officials, should think before they speak. The latest example of the talk first-think later gang is Representative Jasmine Crockett (TX30-D) who has conclusively proven that a person does not have to be knowledgeable to be a lawyer or an elected official.
In her latest rant, Rep. Crockett’s made the false statement that “hate speech” is not protected speech under the First Amendment. Specifically, she stated:
“You may or may not know that when it comes down to it, if somebody decides that they want to send something hateful in, say, the US mail, they can actually go to prison for that—up to 5 years in prison. So yes, there are always going to be limits.”
She could not be more wrong. The Supreme Court addressed this very issue in Matal v. Tam (2017) and held that “hate speech” is protected speech. In fact, there are very few categories of speech that are not protected. Child pornography, fraud, defamation, and credible threats come to mind as unprotected speech. Other than that, just about all speech is protected speech. Don’t believe me? Read Brandenburg v. Ohio (1969) where the Supreme Court held that in order to be unprotected speech, the speech must be:
- “directed to inciting or producing imminent lawless action,” AND
- The speech is “likely to incite or produce such action.”
Under this test even language calling for unlawful action at some undetermined future time is protected speech. This was made plane in Hess v. Indiana (1973) when the Supreme Court held that “advocacy of illegal action at some indefinite future time” is still protected speech.
So why would a member of the House of Representatives who is also a lawyer make a statement that every first-year law student knows is false? There can only be two reasons. Either, she lacks a basic understanding of the Constitution or she’s lying. Both are equally unacceptable.
Don’t get me wrong, I try to use temperate language, though I’m not always successful, and I always condemn racist, antisemitic, and bigoted language. However, the problem with banning “hate speech” is who defines “hate speech?” Depending on the source, hate speech has been defined to include, among other things:
– Criticizing the mutilation of children in the name of “gender affirming care;”
– Stating that men who “identify” as women should be banned from women’s sports;
– Arguing that men should be banned from women’s spaces;
– Criticizing policy positions advocated by “people of color”
– Criticizing policy positions advocated by women;
– Criticizing terrorist who are Muslims;
– Demanding a secure border;
– Demanding those in the U.S. illegally be deported;
– Supporting Israel in the war against Hamas and Hezbollah;
– Speaking out against reparations;
– Demanding everyone be held accountable for their illegal acts – regardless of race or economic class;
I could go on, but you get the idea – “hate speech” is anything that a group, usually on the left, doesn’t like. So, when people accuse others of engaging in “hate speech” they are attempting to silence their opposition by forcing them to self-censor. People who claim hate speech is illegal speech, or unprotected speech, go even further and are attempting to silence their opponents by instilling in them fear of being arrested for their speech. For a member of the House of Representatives to claim that a person who uses “hate speech” can go to jail for up to five years is unconscionable. Yet here we are.
So how do we respond to those who throw around the “hate speech is not free speech” slogan? As an initial matter we must recognize that as ill-informed as they are, under the First Amendment they are free to make stupid statements. However, we too have free speech, and we need to call them out every time they engage in this nonsense. I’ve found laughing at them while pointing out why their positions are born from ignorance is pretty effective. No, it won’t change the minds of true believers, but it often has a positive impact on others who are listening, and those are the people I believe we need to address our arguments too.
As for elected officials who engage in this type of behavior, well my recommendation is to support whoever is challenging them in the primaries, and if that fails to support whoever is running against them in the general election. Forget their party affiliation, forget their race, and forget how much pork they bring to the district and vote them out for being anti-free speech. If we don’t, then we run the risk that one day we won’t have free speech and if that occurs, we won’t have much if any impact on who runs our country.