“If you espouse hate, if you espouse violence, you’re not protected under the First Amendment.”
Democrat Senator Ben Cardin falsely claimed that “hate” is not protected under the First Amendment, and suggested the internet be censored as a result.
In a video posted to Twitter by Cardin, taken from the Helsinki Commission hearing on anti-Semitism earlier this month, the senior Senator from Maryland seemed to fail to understand what the First Amendment does and does not protect.
Cardin argued that government should play a role in cleaning up hate speech on the internet, that is “consistent with our First Amendment,” working in tandem with private companies.
“If you espouse hate, if you espouse violence, you’re not protected under the First Amendment,” he argued. “So I think we can be more aggressive in the way that we handle that type of use of the internet. We know that Europe has done things, and I think we have to learn from each other.”
This is not true. “Hate” and “hate speech” are specifically protected by the First Amendment, with this idea upheld by the Supreme Court as recently as 2017, in the Matal v. Tam case. The idea that the government may restrict “speech expressing ideas that offend… strikes at the heart of the First Amendment,” Justice Samuel Alito argued in the majority opinion.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate,’” he added, quoting Justice Oliver Wendell Holmes in a 1929 dissent.
In fact, not only is “hate” protected from outright government censorship, but also viewpoint discrimination, which as Washington Post contributor Eugene Volokh noted, “has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.”
With such a poor knowledge of the First Amendment, Cardin was roasted on Twitter after the short video clip gained traction. “I am offended by the senator’s comments and find them extremely hateful,” one commenter joked. “I demand they be removed from the internet immediately.”
Following the response on Twitter, Cardin attempted to “clarify” what he said, but still managed to be wrong, claiming that hate speech was only protected if it didn’t incite violence.
“Although the First Amendment protects even hateful speech, if that speech motivates someone to commit a crime, engage in violence, or take action that infringes on someone else’s right, that speech is not protected under the First Amendment and there must be accountability,” Cardin said in a letter to constituents dated December 17.
This also is not true. Justice William Brennan Jr, writing the 1989 majority opinion for the Texas v. Johnson “flag burning” case, declared it “would be odd… that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.”
“Hateful speech” is absolutely protected under the First Amendment, even if someone else commits a violent act because of it. It is only not protected if there is intent from the speaker to incite others to commit immediate violent or criminal acts, and that the speech is likely to do so.
These “lawless” acts must be designed to take place “imminently.” In the 1969 Brandenburg v. Ohio case, it was determined that advocating for violent acts sometime in the future, such as a violent revolution, was protected under the First Amendment.
Sen. Cardin is not the only person to advocate restricting “hate speech” online. In September, New Zealand Prime Minister Jacinda Ardern slammed free speech as being akin to a “weapon of war,” demanding that world governments regulate it online to prevent the spread of so-called “misinformation.”
