The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Richard Stengel, the Biden transition team "agency review team lead" for the U.S. Agency for Global Media (the agency that's in charge of the Voice of America and similar outlets), had an op-ed last year in the Washington Post (David Harsanyi (National Review) was the first to note this, I think, several days ago). An excerpt:
Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran. Why, they asked me, would you ever want to protect that?
It's a fair question. Yes, the First Amendment protects the "thought that we hate," but it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw….
Since World War II, many nations have passed [hate speech] laws to curb the incitement of racial and religious hatred…. In general, hate speech is speech that attacks and insults people on the basis of race, religion, ethnic origin and sexual orientation.
I think it's time to consider these statutes. The modern standard of dangerous speech comes from Brandenburg v. Ohio (1969) and holds that speech that directly incites "imminent lawless action" or is likely to do so can be restricted. Domestic terrorists such as Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech. Speech doesn't pull the trigger, but does anyone seriously doubt that such hateful speech creates a climate where such acts are more likely? …
Why shouldn't the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?
It seems to me that the events of the past several years only highlight how dangerous it would be to give a future Biden Administration, or a future Trump Administration, or state governments left, right, or center the power to suppress ideas because they view them as "hateful" or "attack[ing] and insult[ing] people" on particular bases.
That is especially clear, I think, as to religion, the example with which Mr. Stengel starts: Religions are ideologies, and adherents to those religions at least nominally subscribe to certain views, not just of otherworldly questions but also about what should be done on this Earth. Like all ideologies, they should be debated and sometimes "attacked" (even when the "attacks" may look like "insults"). My sense as to Islam is that it (like Christianity) is too broad and varied a set of denominations to merit most of the broad attacks that I've seen on it. But particular sects (or denominations or streams, if you prefer) of Islam, like particular Christian sects, may well deserve quite sharp criticism.
And of course this is true even of insulting messages, such as Koran-burning and the like. Such expression is too broad for my tastes, much as is flag-burning; but the view that it expresses, which is that Islam generally (at least in most of its forms) is a contemptible ideology, must be just as protected as the view that capitalism or Communism or conservative evangelical Christianity is a contemptible ideology.
As to "race" or "ethnicity" we know of course just how many policies can be labeled by some as "racist" (e.g., prohibitions on race-based affirmative action); likewise, consider how much speech could be labeled by the government as "creat[ing] a climate where [violent] acts are more likely."
This "bad tendency" test, as to speech that created a climate where draft resistance and revolution was more likely, was what the Court used in the 1910s and 1920s, before it was reversed. Brandenburg v. Ohio was indeed the culmination of that reversal. Returning to that test, though now aimed at speech that is supposedly racist or ethnically bigoted or religiously bigoted or anti-gay, would allow the government to suppress a vast range of legitimate criticism (related to crime, policing, immigration, employment law, infectious disease, foreign policy, and more) on the grounds that it "create[s]" a bad "climate."
Indeed, just for an example of just how much speech can "create a climate where [violent] acts are more likely," consider the facts of Wisconsin v. Mitchell (1993), the Supreme Court's leading "hate crimes" (not "hate speech") case, which upheld Todd Mitchell's enhanced sentence based on Mitchell's having chosen his target based on the target's race:
On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying.
The group moved outside and Mitchell asked them: "'Do you all feel hyped up to move on some white people?'" Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: "'You all want to fuck somebody up? There goes a white boy; go get him.'" Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.
Note, of course, that Stengel isn't just after, say, racial epithets: He wants to suppress ideas, ideas that he thinks are dangerous, and that the government will label dangerous. To his credit, he at least doesn't pretend that his proposals are consistent with First Amendment law (there is no "hate speech" exception to the First Amendment, see below). He just wants the Supreme Court to cut back First Amendment law to give the government this power. Time will tell how many others within a Biden-Harris Administration will take a similar view.