Chris Cuomo is co-host of CNN's morning show. He's also a former law and justice correspondent for ABC News. He has a law degree from Fordham University and is a licensed attorney. New York Gov. Andrew Cuomo is his brother.
In other words, this is somebody you'd expect would know what he's talking about on the subject of basic constitutional facts. And yet:
This was in response to the shooting outside Pamela Geller's "Draw Muhammad" cartoon contest event in Garland, Texas. According to Cuomo, Geller and her ilk might not have a First Amendment right to express anti-Muslim speech deemed hateful—it says so, right there in the Constitution, if we would bother to read it.
Okay, let's take Cuomo's challenge. Let's read the speech part of the Constitution. (I hope this doesn't take too long; I hate reading.) Oh, good, the speech stuff is right there at the beginning of the "things you can do" section:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
My copy of the Constitution seems to be missing this fabled "except hate speech, none of that" clause.
As it turns out, the Supreme Court has consistently interpreted the First Amendment to protect all kinds of odious speech, including speech perceived to be hateful. Constitutional speech protections wouldn't be very strong if they did not include hate speech, since one person's statement of hate is another's statement of truth. "George Bush is a war criminal" might be construed as a hateful statement if you're George Bush, after all.
There are indeed limits on the First Amendment; the Supreme Court has held that "fighting words" and incitements to specific and imminent violence are not protected. But as recently as 2011, the Court ruled 8-1 that the Westboro Baptist Church had a First Amendment right to picket a military funeral and wave signs that read "You're going to hell" and "Thank God for dead soldiers."
In other words, it doesn't look like the Court is ready to undertake some vast reinterpretation of the First Amendment that would possibly justify the claims of the "hate speech isn't protected" brigade.
So in response to Cuomo, I would say this: Don't just say you love the Constitution, man. Read it!
Ken White of Popehat (I first typed "Popehate," so hang on to your speech rights, Ken) has a terrific response to a similarly awful McClatchy piece that raises questions about the limits of free speech—questions like, shouldn't we limit free speech?
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