Eugene Volokh explains hate speech’s protection under the First Amendment in light of Texas shooting

Last week’s shooting during a Muhammad cartoon competition in Texas led to the media bringing up the often-misunderstood topic of hate speech and its level of protection under the First Amendment.

UCLA law professor Eugene Volokh cleared the record for readers of The Washington Post’s Volokh Conspiracy in an article found here. He stated:

“[T]here is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.”

Volokh went on to explain the difference between hate speech and some forms of unprotected speech, such as fighting words, true threats, and incitement. He pointed out that hate speech may be frowned upon by society, but it is still protected under the First Amendment:

“U.S. law has just never had occasion to define ‘hate speech’ — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.”

For more on the intersection of the Texas shooting and the First Amendment, check out these articles:

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Watching the watchdog: Columbia University investigates Rolling Stone’s “A Rape on Campus” story; Defamation suit possible

The press is the watchdog of government, providing a check on the legislative, executive, and judicial branches. But sometimes the Fourth Estate needs to be checked itself. This is what occurred recently as Columbia University’s Graduate School of Journalism conducted an investigation into a Nov. 19 Rolling Stone piece by Sabrina Rubin Erdely titled, “A Rape on Campus.” The article detailed how a student, referred to as “Jackie” in the article, was brutally raped at the University of Virginia by seven men at a fraternity party. The piece also highlighted the troubling rise in rape incidents on college campuses.

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Soon after publication, The Washington Post and other media outlets reported inaccuracies in the story. Later it was discovered that Erdely did not contact Jackie’s friends that were quoted in the article or any of the accused fraternity members. After the problems with the story surfaced, Rolling Stone sought Columbia University to undergo a full review of the article.

Columbia’s findings, called “An anatomy of a journalistic failure,” were released online April 5 and will be published in the upcoming issue of Rolling Stone. You can read the report here.

Erdely apologized, saying:

“I allowed my concern for Jackie’s well-being, my fear of re-traumatizing her, and my confidence in her credibility to take the place of more questioning and more facts.” “These are mistakes I will not make again.”

For Rolling Stone, the fallout is not quite over. Phi Kappa Psi, the University of Virginia fraternity mentioned in the original piece, is considering “all available legal action” against Rolling Stone, according to CNN Money. This could include a defamation suit by the fraternity.

Eugene Volokh thoroughly explains the elements and likelihood of a successful defamation claim against Rolling Stone in an article for The Washington Post‘s Volokh Conspiracy

In the end, this type of transparency from a media outlet that is typically counted on to provide transparency to others should be applauded. Other press entities should learn from the mistakes of the original story and also study the way in which Rolling Stone opened its doors to an independent third-party to review its actions and publish the findings.

Sometimes the watchdog needs to be watched.