Lefty Law Logic

Here is an article about "hate speech" by a professor at Northwestern. It's OK for a while then it goes to hell. It's titled The case for restricting hate speech. Observe.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few.

Actually, that's pretty much all of them.

Commercial speech (her 'advertising') is much more regulated than ordinary speech, which is basically everything else. Having a profit motive decreases the 1st Amendment protection. I'm OK with that. Just as I'm OK with with punishing people who lie to hurt other people (libel (written) and slander (spoken)). And merely because you use words doesn't mean you can't be prosecuted for committing a crime by speaking, such as inciting a riot or defrauding someone. I'll skip talking about obscenity as that's pretty moot nowadays. The Professor seems to allude to other righteous and proper 'abridgements' but I'm having a problem even thinking of another category, or even another example. Moving on.

The KKK can parade down Main Street.

Yeah, all twelve of them. The other examples she gives regarding protected speech are just examples of very boorish behavior that does not rise in anyone's book to the level of crime. But we can still speak back to the boors and shun them and, in certain circumstances, beat them up with near impunity if the words are "fighting words" -- whatever those are.

At the same time, our regime of free speech protects the powerful and popular. Many city governments, for instance, have banned panhandling at the behest of their business communities.

But of course begging for money is commercial speech. Not as protected. We can ban it, just as we can ban loudspeakers blaring advertisements on the city streets and sidewalks. She's slipping in analysis rigor here but she's still OK.

Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protetsts (sic) at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals. (The statute made no mention of protecting LGBTQ funeral attendees from hate speech, just soldiers’ families).

OK, but no one knows if the Act she talks about is constitutional. I prefer to focus on the Supreme Court protecting hateful speech, which protection is part of our basic American goodness. Hateful speech is the one that needs protection. And, so far, we do.

But suddenly she goes all feeling over reason.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

So much for sticks and stones... Cigarette smoking from racist hate speech. Who discovered that link?

OK, so there is a cost for "hate speech". Who don't know that? But the analysis doesn't depend on the degree of damage the hate speech does, the crux of the problem is who gets to decide what is not hate speech (protected) and what is (can be banned, criminalized, according to the lefties). It's not supposed to be the government. Back to the actual text: Congress shall make no law...abridging the freedom of speech. Pretty clear, right?

Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.

Yeah, the enlightened Europeans, who just put a guy in jail for a year for criticizing Islam and Muslims. Yeah, let's be more like them. Big finish.

Many readers will find this line of thinking repellent. They will insist that protecting hate speech is consistent with and even central to our founding principles. They will argue that regulating hate speech would amount to a serious break from our tradition. They will trivialize the harms that social science research undeniably associates with being the target of hate speech, and call people seeking recognition of these affronts “snowflakes.”

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

We're not being absolutist to reject as amorphous and useless a legal standard as "hate speech" is. We add up the cost of offensive speech against the damage from letting the government abridge our freedom and it's not even close. Free speech wins. As it should. If hate speech merely means speech the left doesn't like, I'll stick with the Constitution as amended.

No government employee can tell me what I can or cannot say. I'll support that forever. I'll live that forever even though I'm fully prepared to take the consequences if my words constitute an actual crime or civil tort.