Friday, April 21, 2017

A Dean Scream

TRIGGER WARNINGS:  Per the First Amendment, I can legally say you are stupid.  I grant you it would be impolite and show a lack of good upbringing.
For John, BLUFEven the stupid have free speech rights.  Nothing to see here; just move along.



It is Law Professor Eugene Volokh, writing at "The Volokh Conspiracy" (The Wash Post, today).

The lede:

Former Vermont governor Howard Dean writes:
Hate speech is not protected by the first amendment. https://twitter.com/greenhousenyt/status/854881174044520449 …
8:13 PM - 20 April 2017
Second Para:
This leads me to repeat what I’ve said before:  There is no hate speech exception to the First Amendment.  Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas.  One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans.  As the Supreme Court noted in Christian Legal Society v. Martinez (2010), “this Court’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ” includes the right to express even “discriminatory” “viewpoint[s].”  (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)
Here is the final paragraph:
But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law and should explain just what that change would be, so people can thoughtfully evaluate it.  Calls for a new First Amendment exception for “hate speech” shouldn’t rely just on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected and how judges, juries and prosecutors are supposed to distinguish the two.  And claiming that hate speech is already “not protected by the first amendment,” as if one is just restating settled law, does not suffice.
Remember, if today you stifle my free speech, six months from now someone will use your rationale to stifle your free speech.  Our kind of government requires a high tolerance for stupid ideas, in the belief (hope?) that the good ideas will push out the bad.  If you don't accept that, you are asking for a dictatorship of one sort or another.  And you need a Constitutional Amendment.

Hat tip to the InstaPundit.

Regards  —  Cliff

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