Congressman Eric Swalwell responds to Confederate flag discussion: "Hate speech isn't free speech"

|The Volokh Conspiracy |

Rep. Eric Swalwell, a former prosecutor from my own state of California, tweeted these two items last Saturday, in the context of a discussion of the Confederate flag:

The messages were apparently triggered by Mitt Romney tweeting, "Take down the #ConfederateFlag at the SC Capitol. To many, it is a symbol of racial hatred. Remove it now to honor #Charleston victims," and then RightToTheRight tweeting, "@MittRomney @RepSwalwell What happened to #FreeSpeech? Does it only apply when it's #PoliticallyCorrect?"

But there's no "hate speech" exception to the First Amendment. The Supreme Court has never said, "hate speech isn't free." Indeed, it has specifically rejected attempts to target bigoted speech for special punishment, even when that speech fits within some First Amendment exception (such as "fighting words"); see here for more details.

I e-mailed Rep. Swalwell's office to ask him what he meant, and was told, "The Congressman meant that hate speech that incites imminent violence is not protected." But that's not a "hate speech" exception; there is an exception for speech intended to and likely to incite imminent illegal conduct - whether the speech reflects bigoted views or hostility to the draft or desire for revolution - and that's called the incitement exception. ("Imminent" here means within hours or maybe days, rather than at some "indefinite future time.") "Hate speech," on the other hand, is usually used to refer to expression of bigotry, whether or not it fits with the narrow category of speech intended to and likely to incite imminent illegal conduct.

And of course, whatever one may say about the display of the Confederate flag at the South Carolina Capitol (and I myself oppose states' engaging in such displays), it is surely not intended to and likely to "incite[] imminent violence," which is what the Congressman's office says he meant by "hate speech." Instead, display of the Confederate flag might be seen as "hate speech" under the usual definitions (vague as they are) of the term - but, as I've noted, that is legally irrelevant, since there is no "hate speech" exception to the First Amendment.

I e-mailed Rep. Swalwell's office to follow up, asking "which speech inciting imminent violence was being discussed, though? I had thought the discussion that prompted the exchange was the display of the Confederate flag at the S.C. Capitol; was Rep. Swalwell's position that the display of the Confederate flag constitutes speech that incites imminent violence?" Here is the response I got:

It was within the context of the confederate flag. But, he was speaking more generally.

It sounds to me like either Rep. Swalwell was himself confused about First Amendment law - or he is trying to confuse others, by responding to a Confederate flag display discussion with a statement that "hate speech isn't free speech," and then redefining "hate speech" in a quite nonstandard way, and a way that is entirely unrelated to the Confederate flag display at the South Carolina Capitol.

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