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:
I considered writing a blog post about the recent story of the University of Oklahoma expelling members of the SAE fraternity for chanting racial slurs. I was going to write about how even though I hate the hate speech, the students should not be kicked out of school by a public University (a state actor under the Constitution) for their expression. I was going to explain how the First Amendment is present to shield dissenting, not popular views as long as the expression doesn’t cross into an area of unprotected speech: obscenity, true threats, incitement to violence, child pornography, or defamation. I was going to remind readers how past unpopular speech has now become the popular views of society.
But then I saw a piece from CNN in which attorney Marc J. Randazza summed up my views and expounded upon them in an articulate column. I recommend you read “What we risk when we ban racist speech” from Marc Randazza to help understand why the offense speech of SAE is protected under the First Amendment.
Once, speech in favor of racial equality was considered to be “bad speech.” Once, professors were kicked off campus for not being “anti-gay enough.” But, today, the thought of equality and tolerance have won out in the marketplace. Let that victory stand, without trying to cement it with the force of law, and without destroying the very liberty that allowed these “good thoughts” to flourish in the first place.