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.
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.
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:
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.