'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."

NEXT: Jeff Sessions Says Social Media, Encrypted Apps Hamper War on 'Modern Slavery'

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  1. One’s emotions and beliefs are so intertwined that freedom of belief, IMHO, also protects/implies freedom of emotion – so long as it doesn’t include violent actions.

    Expressing one’s beliefs or emotions in a non-violent fashion would seemingly be supported by freedom of press/speech to.

    1. Cool story. Why are you creating an “emotion” category?

      1. I think they’re trying to link freedom of religion into this somehow, which is entirely unnecessary since they’re both natural rights that are in the Bill of Rights. *shrug* Not that they’re ‘wrong’, it’s just not as applicable as the 1st amendment.

        1. Surely Popehat knows very well that courts often balance “freedom” against harm, and that “expression” is not an excuse. Would he dare to defend the “First Amendment dissent” of a single, isolated judge in America’s leading criminal “satire” case? Into which “exceptional category” does the speech criminalized in that case fall? Is it “fraud,” when no money was at stake? Is it “libel,” when libel is no longer a crime in New York, and neither good faith nor truth were allowed as defenses? Is it some new category, invented by New York courts and prosecutors? Of course it is none of these things; it is a basic judgment that the harm done by such “expressive” activity outweighs any “freedom” that could be at stake. See the documentation at:

  2. We aren’t truly free until certain points of view and phrases are illegal, and the people who espouse them are locked up forever or killed. Slavery is freedom. Choice is hatred.


  3. So what if progs claim that expressing conservative viewpoints are fighting words? I mean, it is getting to that point.

    1. I see a Fash that needs crashin’, slashin’, and bashin’.

    2. I’m pretty sure we’ve passed “getting to” and are now actually at that point. Any time a Republican or a sympathizer speaks it’s literally assault.

    3. “So what if progs claim that expressing conservative viewpoints are fighting words? ”

      Those progs are in the process of committing suicide, both politically and literally.

    4. The “figting words” exception is terrible. It seems likely that it wouldn’t hold up now.

      I don’t care what anyone says to you. Violence is only justified when it’s necessary to protect yourself or someone else from an immediate physical threat. People are responsible for their own actions.

      1. Violence is only justified when it’s necessary to protect yourself or someone else from an immediate physical threat.

        So if I say that at the count of 10, I’m going to pick up a tire iron and beat you to death with it, you have to wait til somewhere between 1 and picking up the tire iron in order to retaliate or does it have to bounce off your skull first?

        A believable “I’ll kill you and your whole family.” from the victim should at least be a mitigating factor in a self-defense/manslaughter trial.

        1. Those aren’t ‘fighting words’ those are an immediate threat of violence (not to even get into the arena of who in their right mind would ever utter such words).

          ‘Fighting words’ covers a whole lot of things that would incite the person hearing them to violence, but are not necessarily in and of themselves a threat. Or at least that’s my understanding.

          1. “Yo momma so fat she got a wooden leg with a kickstand”

        2. If you have a tire iron available and seem serious about your threat, that’s an assault and I can justifiably defend myself. That’s an immediate, or at least immanent, physical threat.

          If you are taunting me, calling me a pussy, telling me how much you enjoyed fucking my wife, etc. then I’m not justified in using violence against you and if I do it’s all on me.

          1. Not intending to argue your points in this post, BYODB’s explanation makes the most sense.

            Those aren’t ‘fighting words’ those are an immediate threat of violence (not to even get into the arena of who in their right mind would ever utter such words).

            I read what he wrote and wasn’t considering the context accurately or fully. Either I’ve got a touch of autism, the English language is a bit janky, or both;

            Violence is only justified when it’s necessary to protect yourself or someone else from an immediate physical or verbal threat.

            “I’m going to kick your ass.” may in fact constitute fighting words, but they *are* a direct verbal threat. I was reading your statement (without apparent consideration of verbal threats) as some manner of 1A ‘duty to retreat’ statement.

      2. Agreed. Sticks and stones may break my bones, but words will never hurt me.

        So what if someone gets in my face and calls me a mick faggot? They haven’t really done anything, and ‘hurting my feelings’ shouldn’t be illegal.

        1. Ok. You mick faggot.

  4. What if the theater’s on fire?

    1. Just walk out and let the others worry about it. If you leave early you won’t get crushed in the panic rush.

    2. You can yell “carbon dioxide!”.

    3. The theater’s on fire?!?!? Why are you posting here? Get out!

  5. Saw a good line recently:

    “Truth is hate speech to those that hate the truth.”

  6. it’s worth going back to first principles

    What if we never left?

    1. I was never a big fan of apples.

  7. Of people who don’t understand free speech, who is worse?

    People who believe “hate speech” is not free speech…


    People who believe free speech means freedom from the consequences of their speech?

    1. The second category isn’t (usually) trying to use state violence to enforce their preference.

      1. There is that.

      2. arguably, they are trying to use state violence to prevent their employer from firing them

        1. in fairness, I just noticed your use of “(usually)”

    2. They’re Scylla and Charybdis as far as I’m concerned.

      1. +1 necessary google search

    3. I would need to know what you mean by ‘free speech means freedom from the consequences of their speech’ before making a true judgment call, but at face value the first one’s are worse because it means prior restraint. I would rather an asshole get away with being an asshole rather than someone dictating what you can and can not say in advance.

      If you assume prior restraint is ok, then it also means free speech is greatly diminished to the point where it could be said not to exist at all.

      1. The latter is regarding people who say things like “you can’t fire me, I have free speech.” People who seem to believe that other private entities can’t hold them responsible for stupid things they say.

        1. Oh, well that’s easy then because they’re retarded and simply don’t understand what free speech means in the first place. It’s a no brainer choice that prior restraint is far, far worse.

    4. Re: Sparky leftist poser,

      OR… People who believe free speech means freedom from the consequences of their speech?

      The only direct consequences of speech I can think of that are unavoidable: either a sore throat, or sore typing fingers. Anything else is not a consequence but a purposeful action decided by a different mind, in which case its the sole responsibility of the actor, not of the speaker.

      In other words: We’re not supposed to act like animals.

    5. I would lean towards the former because they are substantially more likely to ultimately have their ideas supported by law/courts.

      I don’t think they’ll win, but there is significant effort towards making hate speech an exception to free speech. various legislative bodies trying to pass anti-hate speech laws. various courts ruling (and then being overruled) that hate speech isn’t protected. ultimately, they continue to lose, but they’re putting up a legitimate fight.

      there isn’t much effort to create some legal loophole where freedom of speech protects you from consequences outside of the law.

  8. In case you were worried that something mildly libertarian-ish has slipped into the latimes, the way the online version of the article is formatted, with the photo under the headline and giant type for Mr. White’s “misleading slogans”, the impression given to the tl;dnr-ers is:

    Actually, hate speech is protected speech (and Milo is hate speech).
    Not all speech is protected. There are limits to free speech.
    You can’t shout ‘fire’ in a crowded theater.
    Hate speech is not free speech.
    We must balance free speech and other interests.
    ‘Fighting words’ are not protected under the First Amendment.
    Maybe this speech is protected now, but the law is always changing.

  9. “Maybe this speech is protected now, but the law is always changing.”
    That is part of the problem. The protections that the 1st Amendment afford should not be subjected to changes in the law. There is a designated manner to amend the 1st Amendment and it has never been done.

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  11. Rather than link to the op-ed, which necessarily is relatively brief, better to link to the longer discussion on which, er, I’m too lazy to track down just now.

  12. Hate-filled people should be encouraged to use speech about their feelings. Seriously, does anybody really think it’s good to ask them to bottle up their feelings?
    Blogs, essays, Op Eds, songs, signs, T-shirts. These are the socially acceptable ways to share one’s opinions, no matter how unpopular or wrong we think they are.
    Preventing hate-speech (or anger-speech) is the equivalent of removing rattles from snakes.

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