On Wednesday morning, CNN anchor Chris Cuomo broke out a heapin’ helpin’ of legal know-how, explaining to ignoramuses on Twitter that Pamela Geller’s event encouraging submissions of drawings of Mohammed amounted to “hate speech” apparently uncovered by the Constitution:
it doesn’t. hate speech is excluded from protection. dont just say you love the constitution…read it https://t.co/znZJ8cPvpX
— Chris Cuomo (@ChrisCuomo) May 6, 2015
When the Fordham Law graduate was asked what in the Constitution left “hate speech” excluded from protection, he cited the case of Chaplinsky v. State of New Hampshire (1942). Actually, he cited it over and over and over again on Twitter, apparently under the misimpression that if he kept repeating the word “Chaplinsky,” Beetlejuice would magically appear and alter the First Amendment’s text and meaning.
The Chaplinsky case, for the record, found that “fighting words” – direct insults to people personally – were not Constitutionally protected. That case is totally inapplicable to Pam Geller’s drawings of Mohammed; the Supreme Court has found that burning the flag, KKK cross burnings, KKK anti-Semitic marches, and Westboro Baptist church demonstrations at military funerals, among other offensive speech, are all protected by the First Amendment. Eventually, Cuomo was forced to concede that he didn’t know what he was talking about, and suggested that most “hate speech” was in fact covered by the First Amendment.
Unfortunately, Cuomo’s attempts to write politically incorrect “hate speech” out of the Constitution have become less and less anomalous. A report this week from Lindsay Wise and Jonathan S. Landay at McClatchy asked, “After Texas shooting: If free speech is provocative, should there be limits?” Naturally, the authors concluded that there should by quoting non-expert constitutional law expert John Szmer of the University of North Carolina at Charlotte, who kindly explained, “I don’t think it is unreasonable to expect what they were doing would incite a violent reaction.” That, of course, is not the test of “fighting words” – any politically controversial words could generate a violent reaction. Any attempt to shut down political speech based on the content of the political speech violates the First Amendment (see, e.g., RAV v. St. Paul). That holds true whether the political speech generates violent reaction or not.
But the Constitution is no barrier for a left that seeks to turn American freedom of speech into European or Canadian freedom of speech, subjecting liberty to the discerning eye of the political elites. The Los Angeles Times said that the “Texas attack refocuses attention on fine line between free speech and hate speech” – a line that does not exist, Constitutionally or morally. Radio host Richard Fowler stated that drawing a picture of Mohammed was “just like going into a crowded theater and yelling out fire, or going into a black church and yelling out the n-word,” drawing an entirely proper rebuke from Fox News’ Megyn Kelly.
In the aftermath of the Charlie Hebdo attack, Professor Erik Bleich of Middlebury College wrote at Huffington Post that “Limiting Hate Speech Is Important, Even After Charlie Hebdo.” In January, NPR asked, “When Should Free Speech Be Protected?” In March, Kent Greenfield of The Atlantic wrote, “We are told the First Amendment protects the odious because we cannot trust the government to make choices about content on our behalf…If that is what the First Amendment means, then we have a problem greater than bigoted frat boys. The problem would be the First Amendment.” Author Jeremy Waldron wrote an entire book, reviewed by Justice John Paul Stevens, calling for regulation of “hate speech.” Our college campuses (including state universities) have been overrun by the “hate speech” police, who are willing to suspend or expel students for exercising their rights or failing to provide “trigger warnings” for their unmannerly expression.
Unfortunately, the “hate speech” police have taken over the entire political left. As Matt Vespa points out, a 2014 Washington Post poll showed that while 60 percent of Americans thought publishing cartoons of Mohammed was “okay,” and over 70 percent believed that there is a right to offend under the First Amendment. But the First Amendment Center published a 2013 poll showing that 40 percent of Americans said the First Amendment “goes too far,” and 56 percent of Americans refused to support a right to say things that are racially offensive (47 percent refused to support a right to say things that are offensive to religious groups).
A YouGov poll from 2014 asked whether Americans would support or oppose a law “that would make it a crime for people to make public comments that advocate genocide or hatred against an identifiable group based on such things as their race, gender, religion, ethnic origin, or sexual orientation?” Fifty-one percent of Democrats supported such a law in violation of the First Amendment; just 21 percent of Democrats opposed such a law. Meanwhile, among Republicans, just 25 percent supported such a law, while 49 percent opposed. Independents sided with Republicans, with 53 percent opposing such laws and 27 percent supporting. Forty-nine percent of blacks supported such a law; so did 49 percent of Hispanics. A plurality of women supported the law as well. Overall, only a bare plurality of Americans, 38 percent to 36 percent, opposed laws criminalizing “hate speech.”
Between a Democratic Party seeking to criminalize political spending and a leftist media seeking to criminalize unapproved speech, the First Amendment is on very shaky footing. No wonder ISIS is looking to euthanize it once and for all.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the new book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.