Hate Speech is Protected by the First Amendment

They aren't try to ban hate speech.

Hate Speech is Protected by the First Amendment

Sounds counterintuitive, but the entire point of “free speech” is protection of hate speech!  This is Constitutional Law 101.

No one is objecting to “love speech.”  No, it’s the awful, offensive, and insulting words that need protection.  Otherwise, our entire society can NEVER say anything that anyone deems “offensive”.

Oliver Wendell Holmes Jr. states, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”

This is the Foundation of a Society That Values Freedom and Expression

Protection of discourse (no matter how vile) is one of the foundational pillars of our legal system and why we have protected free speech as a fundamental right.

Essentially, we aren’t protecting hateful or offensive speech because we agree with it, but because we know that disagreement of ideas will inevitably exist in any society that values freedom of expression.

Unless the “hate speech” falls into a narrow unprotected category ( like incitement, or threatens serious bodily harm, or causes immediate breach of peace (“fighting words”), it is protected.

Supreme Court Cases

It would be helpful for you to download and read these Supreme Court cases.

Matal v Tam (Reaffirmed that there is no “hate speech” exception to the First Amendment.).  This is where Justice Alito says, “Speech that demeans (based on all protected categories)… is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.'”

Cohen-v_-California (“Fighting words” exception in narrow circumstances. Cohen had worn a jacket cursing the draft in a courtroom, and the Court found that the message was directed at the draft and federal government in general and was unlikely that anyone present would take it as a direct personal injury.)

Chaplinsky v. New Hampshire (Established the doctrine of fighting words, which are not protected by the First Amendment.)

Snyder v Phelps (Protected the hateful speech of the Westboro Baptist Church, which is known for picketing military funerals with signs such as “God hates fags”.)

R.A.V. v City of St. Paul (Supreme Court struck down a city ordinance in St. Paul that prohibited bias-motivated disorderly conduct.)

Hate Speech Isn’t the Same as Speech Someone Hates
They aren't try to ban hate speech.
They aren’t trying to ban hate speech. They want to ban speech they hate. There’s a difference.
Exactly What is Hate Speech?

There is no legal definition for “hate speech”.  Just like there is no legal definition for “evil person”.  Or “rude jerk”.  Herein lies another reason it’s protected – you just cannot define it.

When Dobbs came down, we got on my knees and praised the Lord for His incredible victory.  I believe a child is just as precious in the womb as outside.  Abortion is a deliberate act that kills the growing baby. (Jeremiah 1:5, Psalm 139).  In this country, I know we are divided, but I wanted to share my thoughts!

Free speech, right?

In response, hundreds of people spewed hateful comments on my wall.  Some went as far to threaten me bodily harm.  Others said, “I hope you get raped and have to carry a child to term.”

This is all hate speech, obviously.  It insulted and offended.  I felt threatened.

But it is protected, and didn’t fall into an unprotected class.

The Proudest Boast of Free Speech is We Protect Freedom to Express “The Thought That We Hate”

In 2017, Justice Samuel Alito memorably expressed this concept in Matal v Tam.

He writes, “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.””

Regulating Speech Amounts to Censorship

As much as I want to throw the trolls in prison for saying offensive things to me, it goes against the principles of free speech.

In addition, how do you define hate?  Sometimes it’s easy – “Go back to China, you chinky-eyed whore”.

But how can misgendering be a crime?  I once accidentally did that to my daughter’s friend.  For 12 years,  she was Mary (name has been changed.)  One day, she became Nate.   He may return to Mary at his own time, which means I may be “misgendering” again in the future. (Angelina Jolie and Brad Pitt’s daughter, Shiloh once became John and now is back to Shiloh).

As per Paul Coleman, the attorney handling Päivi Räsänen’s case (grandmother on criminal trial for posting Bible verses), “The vagueness of hate speech laws are not an error, they are a design feature. These laws are vague on purpose so they can be deployed at will by those in power.  There is no agreed definition of “hate speech” yet the Western world criminalizes the thing it can’t define.”

California AB 587: California’s Hate Speech Law

California has a “hate speech law”.  Assembly Bill 587 (AB587) is found here.  Read it.

AB 587 is a just another bad law passed by California.

AB 587 proposes regulation of social media companies, requiring Big Tech platforms to provide periodic reporting to the California Attorney General on several categories of speech, including misinformation, disinformation, extremism, radicalization, and hate speech.

What does this mean?  Do you ever see those “fact-checked” posts?  This law requires reporting on those.  AB 587 forces social media companies to report on these “violations”.

If the platforms don’t provide adequate reporting, the state will impose fines to compel compliance.

As Seth Dillon (CEO, Babylon Bee) stated in his substack post:

“It’s a good thing when people are allowed to speak freely. It’s a bad thing when Big Tech and the government work together to decide what we’re allowed to say.

Why?

Because they often get it wrong.

Even worse, they get it wrong on purpose.

As I said in my testimony before Congress, censorship guards the narrative, not the truth.

In fact, it guards the narrative at the expense of the truth.

In today’s post-truth, anti-reality world, describing a male person as a man is considered “hateful conduct.”

If Big Tech is tasked by the state with eliminating hateful or misinformative content, they’ll stuff everything they don’t like into those categories, including opinions, jokes, and even factual statements.”

Elon Musk Files a Lawsuit Today

This just in!  Elon Musk filed a lawsuit to challege AB 587 today.

Attached is the lawsuit: X Corp v. Bonta Complaint for Declaratory Relief.

First paragraph of the Complaint:

“AB 587 also violates the First Amendment because it has the purpose and intended chilling effect of pressuring social media companies into limiting or censoring constitutionally-protected content that the State finds objectionable. AB 587 would also impermissibly inject the government into X Corp.’s editorial judgments — e.g., by dictating the contents of X Corp.’s Terms of Service and compelling controversial disclosures about how X Corp. moderates content on its platform as part of an effort to pressure social media companies to regulate content in a manner desired by the State, as opposed to allowing the social media companies to regulate content on their platforms as they deem fit.”

Babylon Bee Also Previously Filed Lawsuit Challenging AB 587

He joins previous others who have sued, like Seth Dillon of Babylon Bee and Tim Pools.

See Babylon Bee, Minds v. Bonta Complaint for Declaratory Relief here.   I highly recommend reading this amusing piece of legal writing.  I love the first 2 sentences:

1. In 2013, then-Lieutenant Governor Gavin Newsom wrote about the importance of the flow of information in the Internet age. “We no longer live in a world where Walter Cronkite is the single voice of news for all Americans,” he wrote. Gavin Newsom, Citizenville: How to Take the Town Square Digital and Reinvent Government, at 38 (2013). “Today people get their news, information, and opinions from thousands of different sources—Websites, blogs, cable channels, Twitter feeds . . . .That’s not going to change, nor should it. But we have to strive toward making sure that raw information is available to everyone, so people can make their own decisions.” Id.   Newsom even criticized dominant Big Tech firms, including Google and Facebook, for denying “those who do want to hear all sides” the chance to listen to other views. Id. at 37. Citing the potential of technology to challenge political power, Newsom observed that “[t]hose in authority may not like it, but this is the wave of the future, and they’re going to have to deal with it.” Id. at 35.

2. While Governor Newsom appears to have abandoned this view, Supreme Court precedent
still recognizes that “[w]hile in the past there may have been difficulty in identifying the most important
places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Packingham v. North Carolina (quoting Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997)). With Governor
Newsom’s approval, California’s AB 587 coerces social media companies into restricting various forms
of constitutionally protected speech from “vast democratic forums” of the Internet—precisely the
opposite of “deal[ing] with it.”

 

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