'Actually, Hate Speech Is Protected Speech'

Defense attorney and Popehat blogger Ken White refutes all censorious clichés.



When it comes to defenders of free expression and lucid explainers of the law, nobody tops Ken White, the former prosecutor, current defense attorney, blogger at the excellent site Popehat, and exposer of the government's attempt to silence and its readers for criticizing the decision in Ross Ulbricht's Silk Road trial.

White, who contributes to Reason and also offers us legal advice from time to time, has a must-read op-ed in today's Los Angeles Times. He shreds the anti-free-speech cliches that censors always trot out to shut down yours, mine, and our ability to speak our minds.

To wit:

"We must balance free speech and other interests." Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don't decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, "[t]he First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."

"'Fighting words' are not protected under the First Amendment." Years ago the Supreme Court recognized a very narrow 1st Amendment exception for "fighting words." If the exception still survives, it's limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesn't apply broadly to offensive speech, even though it's often invoked to justify censoring such speech.

Read the full op-ed, including a great, concise explanation of why "hate speech" is, like virtually all other speech, protected under the First Amendment.

In a time when all sorts of expression are being redefined as objectionable speech and whole new categories of regulation-ready speech (such as "fake news") are being created, it's worth going back to first principles and reminding ourselves that free speech, like free assembly, and freedom of religion, isn't a small thing we can ever take for granted. Ken White's op-ed does that, in force.

Watch this interview with White: "How the Feds' Subpoena of Reason and Gag Order Went Public."