We know the First Amendment protects hate speech. But has it always done so? And how have civil rights groups responded when their members are the target of hate speech?
Both the host and guest (and many others) made the vital point that regulation of hate speech will always end up being used by people in power against the less powerful. So why not speak about this particular form of criticism you're discussing in the same principled way that President John Adams, Congress and SCOTUS taught us to speak about seditious libel?
The first federal hate speech law was Section 2 of the Sedition Act of 1798. It expressly precluded retaliation for expression bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved to be both “false” and “malicious.” That's pretty good process of law. Somebody had to prove it was both false and malicious, much like SCOTUS required in New York Times Co. v. Sullivan and Garrison v. Louisiana way back in 1964.
SCOTUS decisions subsequently highlighted the major flaw in merely requiring proof of falsehood and actual malice. Repression of such criticism necessarily (unconstitutionally) targets a particular viewpoint regarding a public issue. Doesn't everything that anyone considers regulating as "hate speech" present a viewpoint regarding a public issue? Don't the foregoing suffice to show that regulating whatever anyone considers to be "hate speech" violates our Constitution?
If that doesn't suffice, then why not explain what Madison explained (and what everyone already more-or-less knows) about majorities using the government to oppress minorities. In Madison's June 8, 1789 presentation to Congress (https://founders.archives.gov/documents/Madison/01-12-02-0126) of his proposed amendments to the Constitution (which included what became our First Amendment) Madison emphasized the following:
“whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights” (and whatever form our Bill of Rights takes) “the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against [abuses by] the legislative,” (sometimes against abuses by the judicial branch) “and, in some cases, against [abuses by] the community itself; or, in other words, against [abuses by] the majority [of the people to protect the rights of a] minority.”
Even more fundamentally, protecting Americans from criticism today is very much like seditious libel was previously. We always should bear in mind the crucial truths expressed by a unanimous SCOTUS in New York Times Co. v. Sullivan (often quoting James Madison (often called the Father of the Constitution and the Father of the Bill of Rights)). We have the right to criticize each other like we have the right to criticize our public servants. Our Constitution (starting with the Preamble's emphasis on "Justice" and "secur[ing] the Blessings of Liberty to ourselves") reflects a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
The primary reason is that our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
Another reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” American “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Clearly, public servants cannot “give public servants an unjustified preference over the public they serve” by giving any public servant more “immunity” than the people, themselves, “granted” their public servants. But the crucial truth is that people’s immunity flows directly from the people’s sovereignty.
Could it be that people who perpetuate the label "hate speech" are part of the problem? Isn't that label a lot like a red flag? Doesn't it inherently incite opposition based on the hearer's perception of hateful speech?
More than 80 years ago, in one of the most famous and most powerful SCOTUS opinions opposing unconstitutional repression of expression, SCOTUS unanimously emphasized that the use of labels promotes and facilitates repression. In N.A.A.C.P. v. Button in 1963 SCOTUS emphasized the precise problem: all too often, "mere labels" are abused to “foreclose the exercise of constitutional rights.”
That was re-emphasized by SCOTUS in New York Times Co. v. Sullivan in 1964. "In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to" any other "mere labels." Like "the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." “The test is not the [mere] form in” (or the mere label under) which government “power” was “applied but” whether “such power” was “exercised” constitutionally.
Why does FIRE continue to promote labels that facilitate or promote repression?
Great episode.
I am glad to hear Samantha has a book project in the works, I look forward to reading it.
Both the host and guest (and many others) made the vital point that regulation of hate speech will always end up being used by people in power against the less powerful. So why not speak about this particular form of criticism you're discussing in the same principled way that President John Adams, Congress and SCOTUS taught us to speak about seditious libel?
The first federal hate speech law was Section 2 of the Sedition Act of 1798. It expressly precluded retaliation for expression bringing federal officials “into contempt or disrepute” or “excit[ing] against them” the “hatred” of the “people” unless such criticism was proved to be both “false” and “malicious.” That's pretty good process of law. Somebody had to prove it was both false and malicious, much like SCOTUS required in New York Times Co. v. Sullivan and Garrison v. Louisiana way back in 1964.
SCOTUS decisions subsequently highlighted the major flaw in merely requiring proof of falsehood and actual malice. Repression of such criticism necessarily (unconstitutionally) targets a particular viewpoint regarding a public issue. Doesn't everything that anyone considers regulating as "hate speech" present a viewpoint regarding a public issue? Don't the foregoing suffice to show that regulating whatever anyone considers to be "hate speech" violates our Constitution?
If that doesn't suffice, then why not explain what Madison explained (and what everyone already more-or-less knows) about majorities using the government to oppress minorities. In Madison's June 8, 1789 presentation to Congress (https://founders.archives.gov/documents/Madison/01-12-02-0126) of his proposed amendments to the Constitution (which included what became our First Amendment) Madison emphasized the following:
“whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights” (and whatever form our Bill of Rights takes) “the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against [abuses by] the legislative,” (sometimes against abuses by the judicial branch) “and, in some cases, against [abuses by] the community itself; or, in other words, against [abuses by] the majority [of the people to protect the rights of a] minority.”
Even more fundamentally, protecting Americans from criticism today is very much like seditious libel was previously. We always should bear in mind the crucial truths expressed by a unanimous SCOTUS in New York Times Co. v. Sullivan (often quoting James Madison (often called the Father of the Constitution and the Father of the Bill of Rights)). We have the right to criticize each other like we have the right to criticize our public servants. Our Constitution (starting with the Preamble's emphasis on "Justice" and "secur[ing] the Blessings of Liberty to ourselves") reflects a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
The primary reason is that our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at all levels.”
Another reason for “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” to be “the only effectual guardian of every” American “right.” But our freedom of thought, speech, press and assembly truly flow from our sovereignty. So in our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
Clearly, public servants cannot “give public servants an unjustified preference over the public they serve” by giving any public servant more “immunity” than the people, themselves, “granted” their public servants. But the crucial truth is that people’s immunity flows directly from the people’s sovereignty.
Could it be that people who perpetuate the label "hate speech" are part of the problem? Isn't that label a lot like a red flag? Doesn't it inherently incite opposition based on the hearer's perception of hateful speech?
More than 80 years ago, in one of the most famous and most powerful SCOTUS opinions opposing unconstitutional repression of expression, SCOTUS unanimously emphasized that the use of labels promotes and facilitates repression. In N.A.A.C.P. v. Button in 1963 SCOTUS emphasized the precise problem: all too often, "mere labels" are abused to “foreclose the exercise of constitutional rights.”
That was re-emphasized by SCOTUS in New York Times Co. v. Sullivan in 1964. "In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet ‘libel’ than we have to" any other "mere labels." Like "the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." “The test is not the [mere] form in” (or the mere label under) which government “power” was “applied but” whether “such power” was “exercised” constitutionally.
Why does FIRE continue to promote labels that facilitate or promote repression?