CNN anchor Chris Cuomo: The First Amendment doesn’t protect hate speech, you know

posted at 11:31 am on May 6, 2015 by Allahpundit

This guy is a professional journalist. And a Yale grad. And a law-school grad.

But let’s be fair. If you polled the media, how many of them would agree? Don’t stomp Cuomo just because he’s bold enough to say what the rest are thinking.

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For once I’m with Glenn Greenwald. The funniest part of this, at least for law nerds, is Cuomo suggesting that a “hate speech” exception might be found in the text of the First Amendment itself rather than a Supreme Court case somewhere. You remember how James Madison went on and on about hate speech in the Federalist Papers, don’t you? Know your history, haters.

There is, of course, no “hate speech” exception to the Free Speech Clause. But I’m going to give Cuomo some credit for anticipating the inevitable liberal attempt to carve one out by using a troubling bit of case law detritus that I’ve grumbled about before. Here’s how he replied when people on Twitter began asking him if he’s a moron.

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Ah yes, the “Chaplinsky test,” a.k.a. the “fighting words” doctrine. He’s eating crap from righties and lefties alike as I write this for reading too much into what the Chaplinsky decision allows. That’s the case, handed down by the Supreme Court in 1942, that says the First Amendment doesn’t protect words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Over time federal courts have narrowed that ruling to make clear that it only applies, in Ken White’s words, to “face-to-face insults that would provoke an immediate violent reaction from a reasonable person.” In other words, says Instapundit, a “personal invitation to brawl.” All true, but it’s painfully easy to move from that standard to a standard in which “hateful” speech qualifies as “fighting words” whether or not it’s uttered face to face, whether or not the violent reaction is immediate, and whether or not a reasonable person from the “majority” might object to it. Pam Geller’s Mohammed cartoon contest is a perfect example. That was a private event, not a face-to-face demonstration in front of a group of Muslims; most Americans would say that cartoons of any figure, no matter how insulting, don’t justify a violent response; and there was no reason to expect that the violent reaction, if it came, would be an immediate attack on the event itself rather than a plot to target Geller or her allies later. It should fail the Chaplinsky test easily. (And Cuomo, in fairness, isn’t saying otherwise.)

But if the point of Chaplinsky is to keep the peace by banning certain words that are likely to inspire a violent reaction, then of course the cartoon contest qualifies as “fighting words.” Even Geller’s critics, like Noah Feldman, acknowledge that there’s a nonzero risk of bombs going off around someone who mocks “the prophet.” In the modern world, where we’re all basically face to face on the Internet, communicating your insult in person seems like a formalistic, archaic requirement. And of course, as any good progressive would tell you, it’s horrible chauvinism by a privileged class to think insulting Mohammed should be permissible simply because America’s non-Muslim majority doesn’t find it offensive. Again: If keeping the peace is the touchstone here then naturally we should ban insults to Mohammed. It’s the very first thing we should ban, in fact, because there’s no form of speech nowadays that’s more likely to lead to violence than that. And that’s why Chaplinsky is such a pernicious, awful decision: It rewards violence by punishing the speaker instead of the guy who wants to punch him in the face. In fact, if you re-read the majority opinion, you’ll see that the case didn’t actually involve an invitation to fight or any sort of direct threat of physical violence. The words that got Chaplinsky thrown in jail, that were unworthy of constitutional protection, were him telling a local cop, “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” He was guilty, in other words, of being insulting. You don’t think progressives, given a few decades of sustained effort to influence the consensus about the First Amendment among left-wing judges, couldn’t build on that precedent to treat all “hate speech” as fighting words? Remember:

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America needs to be a “safe space” for all its citizens. Equality demands no less. And no one can be truly safe where “hate” is free to flourish. Right?

Update: A commenter accuses me of having missed something important here, namely the fact that SCOTUS has already said that “fighting words” doesn’t encompass hate speech. I’m well aware of that. Like I said in quoting Ken White, “fighting words” has been narrowed sharply by courts since the Chaplinsky case, precisely because the heckler’s veto it empowers is obnoxious to prevailing judicial views of the First Amendment. The point of my post isn’t that Cuomo has the law right. He doesn’t. My point is that Cuomo is anticipating where the law might be going if progressive attitudes on harmful expression gain traction among Democrats. Go look again at the poll I excerpted above. Already a clear majority of Democrats support criminalizing hateful statements about minorities. In Europe, where their left tends to be a few steps ahead of our own, hate speech is already a crime in many countries (including and especially the UK). Whether the national consensus that hate speech is protected speech remains intact depends on how hard progressives want to push the issue. If Democrats think there should be criminal penalties for hatred and the First Amendment makes those penalties impossible, then the courts’ understanding of the First Amendment will simply have to change. Why any HA reader would underestimate their willingness and ability to make that happen at this point is beyond me.


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Comments

I guess accusing the wealthy of not paying their fair share would have to be considered hate speech they are a minority in this country.

supersport667 on May 7, 2015 at 9:59 AM

The main left-right divide here is just about opinions of Pam Geller, and I’m sorry if it’s hard to say much in support of such an awful person.

redandexpert on May 7, 2015 at 1:51 AM

Not really, no. Opinions of Pam Geller on the right are divided, in that some find her as inelegant as those on the left.

The distinction is that the people on the right are not concerned with whether or not she is an awful person. The freedom only to be wise is not true freedom. When person A tries to shoot person B, and people want to spend their time talking about how bad person B is, there’s a real problem.

Unless you can tell me something that Ms. Geller said or did that warrants shooting her, there is nothing you can say about her that has any bearing on the actual crime that took place: someone driving over a thousand miles to shoot up a private gathering of which they disapproved. So just drop it.

The Schaef on May 7, 2015 at 12:29 PM

The Constitution as drafted and understood through the 1930s or so stood as a barrier to the goals of the progressives who wanted “to do more” except that pesky Constitution stood in the way. Since the amendment process was tough and chancy, the easier way was to interpret the Constitution in a way that removed it or neutered its limitations on government power. That is the route that was followed.

It should be no surprise to think that if the interpretation of one of the amendments that constitute the Bill of Rights gets in the way that there will be some effort to interpret it out of the way. The sad part is that, having accomplished that, the unanticipated consequences might be more severe than the changers imagined.

Russ808 on May 7, 2015 at 7:00 PM

i hate liberals and their prickly emotions that get hurt over words(didn’t your wimpy,whiney,high brow,know it all,we are better parents teach you to listen to the opinions of others?you don’t have to like it–just like i don’t like yours)–but our opionions matter too–if a free society cannot accept diverse ideas then we are not free–you want us to become automatons to where the libs can dictate what we can say(and pretty soon-think)–you do not mind calling women -*unts,whores-if they do not agree with you–but you will not speak up to a muslim who beheads Christians,rapes children of either sex,or threaten annihilation of another country (ours for one)–when war comes you slink away and them send the real men to fight

jstan442 on May 8, 2015 at 11:40 AM