Strangely, many of the same people who are claiming that democracy is hanging by a thread or two are also trying to fray a rather obvious thread, the right to free expression and free speech. Since that First Amendment thingy is a bear, they have to find ways around it that will stifle ideas, opinions and arguments that interfere with the “greater good”.”” (as they see it, natch). Or pretend the First Amendment “isn’t what it is” (#64).
Democratic Senator Ben Cardin of Maryland joined Howard Dean and Chris Cuomo among other loud progressives to make the legally and factually false statement that “hate speech” wasn’t protected speech. “If you espouse hate, if you espouse violence, you’re not protected under the First Amendment,” Cardin said in a clip from a hearing he posted on Twitter himself. “So, I think we can be more aggressive in the way that we handle that type of use of the internet. Our first amendment is one of the defining jewels of this country. It is NOT a free pass to spew violent rhetoric.”
As Johnny Carson might have said, “Wrong, Totalitarian-Breath!” The Foundation for Individual Rights and Expression (FIRE) corrected Cardin for his foolery. “There is no ‘hate speech’ exception to the First Amendment,” the free-speech organization tweeted. It was not alone. “The Supreme Court has made it clear that there is no hate speech exception to the First Amendment,” Walter Olson of the CATO Institute posted. “That Maryland’s senior senator would not understand this is shocking.”
Not really: most progressives don’t seem to understand this, or pretend they don’t. Cardin quickly tried to claim that the quote was taken out of context, though he was the one who took it out of context. “Hate speech is protected under the #FirstAmendment, unless it incites violence. #context” he tweeted. Huh. Then why did you say, “If you espouse hate…you’re not protected under the First Amendment”? “Espouse” means “adopt or support.”
Maybe it’s the English language that Maryland’s senior Senator doesn’t understand. Somehow that doesn’t make me feel any better.
- A three-judge panel of the 9th Circuit Court, the most over-turned appellate court in the nation by far, ruled that the Albany Unified School District in California could punish students for racist language on their Instagram accounts, which 13 students followed. They were expelled. The speech did not take place on school grounds and was unrelated to school. The expulsions directly violated the Bill of Rights, the state constitution and Supreme Court precedent. Off-campus “hate speech” is not the legitimate concern of schools and is protected. But Gould wrote,
“I write separately to express my views on the topic of hate speech, disturbingly present in both the facts of the case before the panel and regrettably, a reemerging threat to society throughout the nation today. I reaffirm the viewpoint I stated when another case involving hate speech in schools came before this court: ‘Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.’ Harper v. Poway Unified Sch. Dist. (9th Cir. 2006) (Gould, J., concurring in the denial of rehearing en banc), vacated on other grounds, 549 U.S. 1262 (2007).
“The continued prevalence of hate speech and crimes against American citizens and residents on the basis of race, ethnicity, religion, sexual orientation, gender identity, and disability is evidence of the enduring threat of hate crimes to the fabric of American democratic society and to the safety and security of individuals.
“In light of this threat, I write to underscore that the First Amendment and Supreme Court precedent do not require courts always to strike down a government entity’s attempts to prevent harm to their citizens—especially in the context of hateful speech at schools harming children.”
He quotes himself as authority to make factually false claims. A Bible verse on a T-shirt is absolutely protected speech.
As for burning crosses, on April 7, 2003 the United States Supreme Court ruled that KKK member Barry Black could not be convicted of a crime under Virginia’s cross-burning statute because of the law’s unconstitutional presumption that all cross-burning is intended to intimidate. Cross-burning may be held criminal only when it can be shown that its purpose is to intimidate others rather than to state the cross-burner’s personal hateful opinion. You’d think a judge could see the distinction. Not this judge.
Just last year, the Supreme Court held that the Mahanoy Area High School in Pennsylvania could not suspend B.L. who wrote, “Fuck school fuck softball fuck cheer fuck everything” in a social media post seen by up to 250 people, as she threw a cyber tantrum over not making the cheerleading squad.
Writing for an 8-1 majority, Justice Breyer said, “… the Court’s precedents make clear that students do not ‘shed their constitutional rights to freedom of speech or expression’ when they enter campus. The Court has also recognized that schools may regulate student speech in three circumstances: (1) indecent, lewd, or vulgar speech on school grounds, (2) speech promoting illicit drug use during a class trip, and (3) speech that others may reasonably perceive as ‘bear[ing] the imprimatur of the school,’ such as that appearing in a school-sponsored newspaper. Moreover, in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Court held that schools may also regulate speech that ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.'”
None of those three circumstances applied to the Instagram posts that got the two California students expelled. Writing for the deluded 9th Circuit panel, Judge Collins wrote, “The posts in the [Instagram] account include vicious invective that was targeted at specific individuals and that employed deeply offensive and insulting words and images that, as used here, contribute nothing to the ‘marketplace of ideas.’” “Fuck school fuck softball fuck cheer fuck everything” is more marketable than what the students wrote? There is no such standard. [Pointer: Don Surber]
- There is some good news: The Massachusetts Institute of Technology faculty adopted a resolution last week that defends freedom of speech and expression even when some find it “offensive or injurious.” The “Free Expression Statement” declares that “Learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence…We cannot prohibit speech that some experience as offensive or injurious,”
The bad news is that the affirmation of free speech on campus was only approved by a vote of 98 to 52. That means that more than a third of the faculty of one of the most prestigious universities in the nation doesn’t approve of free expression.
I wonder which party they voted for?