The Hate Speech Exception to the First Amendment

Contrary to the title of this post, there is no hate speech exception to the First Amendment.

FIRE explains

There is no “hate speech” exception to the First Amendment. So, many Americans wonder, "is hate speech legal?"

Contrary to a common misconception, most expression one might identify as “hate speech” is protected by the First Amendment and cannot lawfully be censored, punished, or unduly burdened by the government — including public colleges and universities.

The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish “hate speech.” Instead, the Court has come to identify within the First Amendment a broad guarantee of “freedom for the thought that we hate,” as Justice Oliver Wendell Holmes described the concept in a 1929 dissent. In a 2011 ruling, Chief Justice John Roberts described our national commitment to protecting “hate speech” in order to preserve a robust democratic dialogue:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

In other words, the First Amendment recognizes that the government cannot regulate “hate speech” without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away.

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FAIR Discusses its Mission

End of Year Message by Bion Bartning, Founder of FAIR (Foundation Against Intolerance and Racism), discussing the genesis and mission of FAIR:

When I was a child growing up in Newton, Massachusetts, I was passionate about civil rights. I wanted to do my small part to help “heal the world”—and move us ever closer to the promise outlined in the Declaration of Independence: that every person was created equal, and that we are all entitled to unalienable rights including “life, liberty and the pursuit of happiness.”

Martin Luther King Jr. was a hero to me, and still is. I remember the day several years ago that I first shared his ‘I Have a Dream’ speech with my two young children. He spoke the truth about our shared humanity, equal protection under the law, access to equal opportunity for all, and why it was important to treat our fellow Americans with dignity and respect. I thought, growing up, that everybody shared these values.

As a young teenager in 1988, I did not understand why our governor at the time was pilloried as a “card-carrying member of the ACLU”—which I viewed as an organization committed to standing up for the individual civil liberties that are promised to all Americans under the Constitution. Freedom of speech. Freedom of religion. Equal protection under the law. I saw the ACLU as a vigilant guardian, fighting to protect our hard-won individual rights and freedoms.

Perhaps that was true at one time—but, as I discovered a few years ago, and many recognized much earlier, the ACLU is no longer the vigilant and nonpartisan civil liberties organization that we desperately need. Rather, it is a highly partisan fundraising machine that contributes to the ever-increasing polarization in our culture, while bringing in almost $400 million per year through the ACLU and ACLU Foundation, plus millions more through its state-level chapters.

And where does the ACLU spend all of the money that it raises from individuals and corporations? In 2021, Anthony Romero, CEO of the ACLU, was paid over $1 million. This is an astounding amount for a nonprofit organization to spend on one person—and, together with the significant salaries of the other key employees, shows the degree to which, perhaps, money and a careerist mindset motivates and drives the people at the top of the ACLU.

As founder and CEO of FAIR, I have never taken, and will never take, any salary or compensation. In fact, FAIR’s total payroll, for its entire team of paid staff members combined, is substantially less than the $1 million that the ACLU spends on its CEO alone. For almost two years I have donated, and will continue to donate, my time, energy, and money to support FAIR. The same is true of the other volunteers and donors involved in building FAIR since its launch last March—including Letitia Kim, head of the FAIR legal network, our chapter leaders, Board of Advisors, and hundreds of other courageous individuals.

Why do so many of us choose to be part of this? While we may not agree on every issue, we are all passionate about FAIR’s nonpartisan mission, and to advancing the values, principles—and individual freedoms—that are the foundation of a healthy, functioning, pluralistic society. I was compelled to found FAIR after seeing how the same illiberal and intolerant ideology that had infected my children’s school had caused the ACLU and other civil rights organizations to stray from their missions. I saw the urgent need for a new, truly nonpartisan, organization committed to advancing individual civil rights and liberties for all Americans—and that is exactly what we are building, with your support and involvement, at FAIR.

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Twitter’s COVID Censorship

David Zweig's new article at The Free Press: "How Twitter Rigged the Covid Debate: The platform suppressed true information from doctors and public-health experts that was at odds with U.S. government policy." An excerpt:

The United States government pressured Twitter to elevate certain content and suppress other content about Covid-19 and the pandemic. Internal emails that I viewed at Twitter showed that both the Trump and Biden administrations directly pressed Twitter executives to moderate the platform’s content according to their wishes.

At the onset of the pandemic, the Trump administration was especially concerned about panic buying, and sought “help from the tech companies to combat misinformation,” according to emails sent by Twitter employees in the wake of meetings with the White House. One area of so-called misinformation: “runs on grocery stores.” The trouble is that it wasn't misinformation: There actually were runs on goods.

And it wasn’t just Twitter. The meetings with the Trump White House were also attended by Google, Facebook, Microsoft and others.

When the Biden administration took over, its agenda for the American people can be summed up as: Be very afraid of Covid and do exactly what we say to stay safe.

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The European Union’s Troublesome Plan to Clean Up Social Media

Jacob Mchangama, author of Free Speech: A History from Socrates to Social Media (2022) is warning us of the EU's well-intended "Digital Services Act, enacted in November 2022. The stated purpose of the Act is to require social media platforms to

evaluate and remove illegal content, such as “hate speech,” as fast as possible. It also mandates that the largest social networks assess and mitigate “systemic risks,” which may include the nebulous concept of “disinformation.”

Mchangama is concerned that the EU is ignoring the likely consequences of the Act:

The European law, by contrast, may sound like a godsend to those Americans concerned about social media’s weaponization against democracy, tolerance and truth after the 2020 election and the Jan. 6 insurrection. Former Secretary of State Hillary Clinton enthusiastically supported the European clampdown on Big Tech’s amplification of what she considers “disinformation and extremism.” One columnist in the New Yorker hailed the Digital Services Act as a “road map” for “putting the onus on social-media companies to monitor and remove harmful content, and hit them with big fines if they don’t.”

But when it comes to regulating speech, good intentions do not necessarily result in desirable outcomes. In fact, there are strong reasons to believe that the law is a cure worse than the disease, likely to result in serious collateral damage to free expression across the EU and anywhere else legislators try to emulate it.

Removing illegal content sounds innocent enough. It’s not. “Illegal content” is defined very differently across Europe. In France, protesters have been fined for depicting President Macron as Hitler, and illegal hate speech may encompass offensive humor. Austria and Finland criminalize blasphemy, and in Victor Orban’s Hungary, certain forms of “LGBT propaganda” is banned.

The Digital Services Act will essentially oblige Big Tech to act as a privatized censor on behalf of governments — censors who will enjoy wide discretion under vague and subjective standards. Add to this the EU’s own laws banning Russian propaganda and plans to toughen EU-wide hate speech laws, and you have a wide-ranging, incoherent, multilevel censorship regime operating at scale.

The obligation to assess and mitigate risks relates not only to illegal content, though. Lawful content could also come under review if it has “any actual or foreseeable negative effect” on a number of competing interests, including “fundamental rights,” “the protection of public health and minors” or “civic discourse, the electoral processes and public security.”

The DSA appears to be a blank check written to powerful actors, inviting them vigorously assume the the role of nannies for others, to make sure people in EU all talk properly to each other, as determined and enforced by governments. This is an invitation for powerful actors to embrace unrestrained government-enforced censorship. What could possibly go wrong?

Mchangama warns of the spill-over effect. The Act only applies to the EU on its face, which is bad enough, but it could affect those all over the world, including in the U.S."

The European policies do not apply in the U.S., but given the size of the European market and the risk of legal liability, it will be tempting and financially wise for U.S.-based tech companies to skew their global content moderation policies even more toward a European approach to protect their bottom lines and streamline their global standards. . . . The result could subject American social media users to moderation policies imposed by another government, constrained by far weaker free speech guarantees than the 1st Amendment.

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