Glenn Reynolds uses a USA Today column to explore the concept of “hate speech.”
I tell my constitutional law students that there are a couple of statements that indicate that a speaker is a constitutional illiterate who can safely be ignored. One is the claim that the Constitution views black people as 3/5 the worth of white people (actually, it was all about power in Congress, with slaveowners wanting black people to count 100% toward apportionment so that slaveowners would get more seats in Congress, and abolitionists wanting them not counted at all so that slaveowners would get fewer seats in Congress; the ? compromise was just that, a compromise).
The other hallmark of constitutional illiteracy is the claim that the First Amendment doesn’t protect “hate speech.” And by making that claim last week, Howard Dean, former governor of Vermont and Democratic presidential candidate, revealed himself to be a constitutional illiterate. Then, predictably, he doubled down on his ignorance.
In First Amendment law, the term “hate speech” is meaningless. All speech is equally protected whether it’s hateful or cheerful. It doesn’t matter if it’s racist, sexist or in poor taste, unless speech falls into a few very narrow categories — like “true threats,” which have to address a specific individual, or “incitement,” which must constitute an immediate and intentional encouragement to imminent lawless action — it’s protected.
The term “hate speech” was invented by people who don’t like that freedom, and who want to give the — completely false — impression that there’s a kind of speech that the First Amendment doesn’t protect because it’s hateful. What they mean by “hateful,” it seems, is really just that it’s speech they don’t agree with. Some even try to argue that since hearing disagreeable ideas is unpleasant, expressing those ideas is somehow an act of “violence.”
