Free Speech

California AG's Brief Claims "Hate Speech" Is Constitutionally Unprotected

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From a brief filed by the California Attorney General's office in Ogilvie v. Gordon, a case dealing with restrictions on personalized license plates (such as exclusions of "racially degrading term[s]"):

There are well-defined and narrowly-limited classes of speech, "the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942) (emphasizing that certain types of speech are protected by the First Amendment). Obscenity, vulgarity, profanity, hate speech, and fighting words fall outside the scope of the First Amendment's protections. See Brunetti, 139 S. Ct. at 2303 (Roberts, C.J., concurring in part and dissenting in part) (forbidding registration of "obscene, vulgar, or profane marks does not offend the First Amendment"); Brown v. Entertainment Merchants Ass'n, 564 U.S. 786, 791 (2011) (listing instances where the First Amendment does not protect speech); R.A.V. v. City of St. Paul, 505 U.S. 377, 383, 393 (1992) ("fighting words," defamation, and obscenities fall outside the First Amendment).

Actually, nothing in Chief Justice Roberts' separate opinion in Brunetti, or the majority opinions in Brown and R.A.V., says or even suggests that "hate speech" is "outside the scope of the First Amendment's protections." Indeed, R.A.V. holds that selective bans on racist fighting words (as opposed to broader bans on all fighting words, racist or otherwise) are unconstitutional; and Justice Alito's four-Justice opinion in Matal v. Tam, which Roberts joined and on which the Brunetti decision relied, expressly says:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

Justice Kennedy's separate four-Justice opinion in Matal agreed with Alito and Roberts that restrictions on allegedly bigoted speech are unconstitutional. There and elsewhere, the Supreme Court has made clear that there is no "hate speech" exception to the First Amendment.

The California AG's office is of course entitled to argue to the Supreme Court that it should recognize a new First Amendment exception, though I think the Court has been wise to reject this one. (Of course, if such an exception were recognized, then it means that speech could be outright criminalized, and not just excluded from personalized license plates, which is the question involved in the Ogilvie case.) But I can't see how the office can just assert this claim as if it were indeed supported by the opinions that it cites.

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  1. Must we seek expert opinions from Professor Bernstein’s “objective legal experts”?

  2. It’s not exactly a surprise that AGCA has taken this tack.

  3. This is California. The government and its officers just make up stuff.

    Like overnight curfews to prevent Covid from spreading, like a vampire.

    1. No, this is the Vololkh Conspiracy. Which purports to be a champion of free expression when it is not engaged (repeatedly) in viewpoint-driven, right-wing censorship.

      1. Want some cheese with that whine?

        1. It’s not a whine. Not exactly a boast, either. Mostly just the facts, which are quite relevant whenever clingers try to climb a high horse in the context of censorship.

          1. When Volokh takes up arms to silence you, then you will have a point.

            Until then, for free speech anyway, you seem to be part of the problem. Your desired packed Supreme Court, far from being like the 1970s Supreme Court that overturned restrictions on Nazis marching, would seem to be in favor of stopping Nazis from speaking.

            Is this your position? Do you want the first real crack in the First Amendment since cases like that, or that flag burning was protected expression, were driving free speech ever larger?

            1. “When Volokh takes up arms to silence you, then you will have a point.”

              That “point” merits no response, although it is quite impressive that you can type anything at all with your tongue so firmly affixed to the proprietor’s scrotum.

              1. And ~that~, Dear Readers, is the best that Artie can do, eh. ????

      2. Such as?

        1. “Such as?”

          Removing comments by liberals using terms such as “c@p succ_r” (while approving posts from conservatives using far worse terms).

          Warning liberals against using terms such as “sl@ck-j_wed” to describe conservatives (while approving conservatives’ calls for liberals to be placed face-down in landfills, for liberal judges to be gassed, for liberals to be sent to Zyklon showers, and for liberals to be shot in the face as they open the front doors of their homes).

          Banning a commenter entirely for making fun of conservatives.

          In other words, repeated, partisan, and viewpoint-driven right-wing censorship.

          1. “Banning a commenter entirely for making fun of conservatives”

            Now, that’s not entirely honest, is it? The ‘commenter’ wasn’t banned, as your daily barrage of posts shows. The ‘ban’ was that you were asked to limit your posting to one user name, and not continue to also post under other sock puppet names.

            1. Stop letting your facts get in the way of his narrative.

            2. I have never used a ‘sock puppet name,’ you bigoted rube.

              Happy Thanksgiving.

          2. Yeah, what the other guy said. Given some of the horrible things other commenters post on this site, I find it very hard to believe an account got banned for calling conservatives slack jawed. (You’ve certainly called conservatives and Christians much worse under your Rev. ALK account without being banned.) Much more likely the issue was you having two accounts or something. Apologies in advance if you truly were banned for using such a tame phrase.

            1. The term you mentioned didn’t get anyone banned . . . it was the subject of an express warning not to use such conservative-criticizing language again.

              The banning occurred consequent to making fun of conservatives a bit too effectively. The precise asserted reason for the ban, as I recall, was ‘low signal to noise ratio.’

              The scorecard: one banishment; several posts vanished by the proprietor; one warning forbidding use of certain terms that criticize conservatives.

              That’s the record involving me. I do not know how many other non-conservatives have been banished, censored, or warned.

              I have the emails if the particulars become important.

              1. Ok, we’ll if you say you didn’t have two accounts, or at least didn’t receive a warning or van for that reason, I’m happy to take you at your word. But let’s be honest here: if EV was banning commenters for a low signal to noise ratio, your current account (and in fairness, a few others) would’ve been banned a while ago. For as long as I remember, you’ve always been rude and mean-spirited to Christians in particular, and conservatives (especially social conservatives) more generally. But while the more recent VC commenters may find this hard to believe, there was a time when you actually posted substantive comments/points (and some interesting comments about craft beer, IIRC) in between the insult posts.
                But certainly over the last several months (probably longer), you seem to have gotten even more angry/bitter, and a bit monomaniacal with insulting conservatives and the religious. I don’t read every thread, but I don’t see many (if any) “regular” comments of yours these days, like I used to. So I suspect there either was another reason EV reportedly banned your other account, or maybe he’s become less strict recently. But if he were banning people for making mean-spirited and/or monomaniacal comments, your current account (and those of two or three right-wing commenters in this site) would have been banned quite some time ago.

                (General disclaimer: I’m not going to proofread comments, so apologies for any typos. I blame Siri and the lack of an edit function on this site.)

                1. “if you say you didn’t have two accounts, or at least didn’t receive a warning or van for that reason, I’m happy to take you at your word.”

                  The puppet name was something like “Artie Ray Lee Wayne Jim-Bob Kirkland”. It was, I think, a decade plus ago on the original volokh dot com site, and RALK has been complaining ever since. Search for that name and add “site:reason.com” and you’ll get many examples of RALK discussing it – here is but one example. I dunno why he is choosing to deny it now, it’s common knowledge to any of the old timers here.

          3. Wait, are comments moderated here, unlike the rest of Reason?

            1. About as moderated as a nuclear bomb, but in theory, yes.

              But he’s complaining about something that happened a couple of sites ago. Been whining about it ever since, and the very fact that he CAN whine about it demonstrates how little cause he has to whine.

      3. If the VC were serious about censorship, your trolling, inflammatory, and bigoted posts would all be deleted — leaving few if any contributions by you.

        Given that you’re allowed to troll quite freely here on his front porch, I’m certain that Professor Volokh would object very strongly to the government banning you from starting your own web site and publishing whatever trash you want there.

        By the way, if you want to see what censorship on private web sites looks like, just head on over to DailyKos.com. They, of course, are free to censor/delete/ban whoever and whatever they want and they do a lot of that. But the result is frothing self-affirming mindset that encourages name calling and dismissal of any alternative viewpoints. Hardly the “freedom of speech” that one sees here on the VC.

        One wonders why you even bother to troll here — it’s a waste of your time because you’re not changing anyone’s minds with your vapid posts and are actually probably being a disservice to the positions that you hold. Perhaps you value your time, correctly, as being worth nothing. From your contributions here, I agree with your own apparent self-assessment so I may have finally found something we agree on – perhaps I should consider being thankful for that on Thanksgiving – naw, on second thought, it just isn’t that important to me…

        1. “One wonders why you even bother to troll here”

          Artie likes those Soros dollars coming his way… although Soros certainly isn’t getting his money’s worth with this troll.

  4. “Indeed, R.A.V. holds that selective bans on racist fighting words (as opposed to broader bans on all fighting words, racist or otherwise)”

    So if you’re going to punish people who use racial slurs under the fighting words doctrine, you have to punish people who call others “racists” as well. Interesting.

    Personally I think we should get rid of the doctrine, but it’s good to apply it evenhandedly.

    1. Holy cow. The Rev would be hit hard by an increase in government punishment of harrassment-as-fightin’-words!

      I will help protect your diatribes, Rev, against deep blue state encroachment.

  5. I thought there were no more fighting words with the feminized males of this country. “I effed your wife,” is no longer a crime justification to shoot someone.

    1. That’s kink shaming now.

    2. Leave Jerry Falwell Jr. out of this!

    3. Ahh, who can forget that moment when, in response to Colbert saying Trump was “Putin’s (male chicken)-holster”, and Hannity went off on a rant against Colbert about how dare he use an image of a tender moment between loving men as an epithet.

      Times change, and oh no, the other side is learning to weaponize our tactics against us!

      Popcorn sales skyrocket.

  6. They yearn to arrest and imprison people for bad politics.

    1. There is a psychological term for it. Rhymes with tennis frenzy.

      1. ??? (I guess I should be embarrassed that I can’t come up with what you’re referring to. Esp because my first real career was as a therapist.) Is it *so* obvious that I’m overthinking this???

        1. I am using “rhyme” liberally.

          Member jealousy?

  7. I continue to believe that government vanity plates, like broadcast licenses and certain other things, should be subject to a lower level of scrutiny.

    Failing that, as driving is not the place to piss people off, I believe restrictions would pass strict scrutiny. Driving is a place where breaches of the peace are always a tiny reflex away.

    The constitution is not a suicide pact. It does not require first amendment purity at the cost of human sacrifice. First amendment absolutism at the cost of human life ultimately brings disrepute on the first amendment and brings the public against it more broadly.

    I would pick my fights. I would bend here. Pissing off other drivers is either subject fo a lower level of scrutiny or passes strict scrutiny.

    I also think vanity plates are only partly the message of the driver, they are also partly the message of the state. Nothing in the first amendment requires making the speech all one or all the other in these cases. A driving license on the public streets is analogous to a broadcast license on the public airways. The state has more say than in the typical case.

    1. A plate is evidence of the license itself. It is much more the state’s property than a bumper sticker. My logic would let the state restrict bumper stickers. But the fact that rhe plate is the atate’s property and not the driver’s makes this, in my opinion, a much clearer case.

      The problem that Professor Volokh is not willing to acknowledge is that much of the public not only sees Trump’s recent coup attempt as a direct consequence of first amendment absolutism, they see first amendment absolutists as enablers of coup attempts. They see them as suicide enablers.

      1. If the plate were merely evidence of the license itself, your argument would have merit. But that logic works only so long as the plate numbers are chosen by the government. Once you start allowing vanity plates, you granting a right to speak on your “property”. You have chosen to turn the plate into a public forum and may no longer impose arbitrary restrictions on it.

        Your argument that government restrictions so people won’t piss people off is unbounded and clearly unconstitutional.

        It is also completely unjustified. But feel free to prove me wrong on this last point. Can you cite even a single case of road rage induced by a vanity plate (as opposed to the bad driving by the kind of self-centered jerk who gets a vanity plate) that resulted in a fatality?

        1. Exactly, vanity plates are like ads on the sides of a government bus.

          You can choose not to have ads as a government, or you can choose to have ads and accept all comers that satisfy a viewpoint neutral bar.

          1. Right.

            Does anyone see a vanity plate (as opposed to random letters and numbers) and think that the government came up with it? Everyone knows it is custom ordered by the car owner.

            1. My plate sais, BUTT FOR. State trooper liked its mocking the lawyer profession. Let me go with a warning for speeding by 32 mph. I could have been arrested.

    2. The simplest constitutional solution is to just discontinue vanity license plates.

      1. But for the extra $ they provide the state.

      2. Or just let people put whatever they want on them.

        1. Well, you can’t allow duplicates…

          -dk

    3. Broadcast licenses exist to share a limited resource, the broadcast frequencies. There is no practical limit to license plates so the two are not analogous.

    4. I continue to believe that government vanity plates, like broadcast licenses and certain other things, should be subject to a lower level of scrutiny.

      The constitutional argument was BS though. The state rents out space on the license plate to satisfy voracious spending needs, just like cities do on the sides of busses.

      Since it facetiously outlaws unpopular statements, but not popular ones, including how great the college sports teams of other states that tangle with ours are, it’s clearly content and viewpoint discrimination.

      The cure to bad speech is more speech, not government outlawing of speech. This must be fought on unpleasant grounds lest it encroach to more meaningful areas.

      We are about to see a vice president, who may very well be president shortly, who was the loudest during the Democratic debates in how to threaten internet giants with government harm unless they censor harrassment appointing Supreme Court judges.

    5. You can certainly support restrictions on vanity license plates without having to agree with this California guy that “hate speech…fall[s] outside the scope of the First Amendment’s protections.”

    6. I would pick my fights. I would bend here.

      ReaderY, I get where you are going with this, but it is simply a bridge too far. If you carve out a narrow exception here, where else might exceptions be carved? One day, it might be ‘WrongThink’ to say, “God Luvs U”. Would you restrict that as well? Your rationale, extended to it’s logical conclusion…would.

      My view is if the state opened the door, then everything is in.

  8. There’s also rhetoric in SCOTUS opinions saying that exceptions to the First Amendment are “well defined and narrowly limited”. Courts aren’t supposed to create them willy-nilly. The “hate speech is an exception to the First Amendment” position is bound to fail, and indeed, it probably violates legal ethics canons to advocate it to a state court (other than a short passage to preserve the argument for SCOTUS review).

    1. Really, one of the Conspirators should file an ethics complaint against the California AG. That would be funny.

      1. Ankle-nipping is their specialty.

          1. Good one, mulched. I probably should know better than to tangle with the likes of you.

      2. Personally, I think appellate courts should be much more aggressive at policing this sort of stuff. You don’t get to put a position in a legal brief just because your constituents or clients want it in there.

    2. There’s also rhetoric in SCOTUS opinions saying that exceptions to the First Amendment are “well defined and narrowly limited”. Courts aren’t supposed to create them willy-nilly.

      In fact, in Stevens, Roberts expressly said that courts cannot go around creating new categories of unprotected speech.

  9. But I can’t see how the office can just assert this claim as if it were indeed supported by the opinions that it cites.

    We’ve become accustomed to fake news. Now we’re getting fake law.

  10. Sure, the Supreme Court has repeatedly dismissed the idea that “hate speech” has no First Amendment protection. That’s not important. What’s important is what the media and politicians repeatedly assert, because if they repeat a false statement enough times, it becomes the truth. It’s like magic!

  11. It’s par for the course for the left to just pretend that the constitution just says what it wants, and didn’t really mean what it disapproves of. For instance “congress shall make no law” doesn’t pertain to campaign speech, or even speech about campaigns allowing congress to ban books or movies during a political campaign.

    Or “the right of the people to keep and bear arms shall not be infringed“ means that the people have no right to keep and bear arms unless they are in the National guard, and the arms are kept locked up in the armory.

    1. SC Justice to government lawyer: “So you’re saying this book would be illegal if published within 30 days of an election?”

      Government Lawyer: “Yes.”

      Obi Wan: “So you can see it doesn’t violate the First Amendment, from a certain point of view.”

  12. To try to answer the post’s original question, the Left redefines words and then believes that their subjective understanding of words alters reality. I think they genuinely believe that they are acting in good faith when they describe past opinions because they have the subconscious understanding that they can change the meaning of those past opinions through their own beliefs.

    To them, “hate speech” is “obscene,” “profane,” or “vulgar.” It doesn’t matter what the meaning of those words were as used by those who wrote them. They simply define hate speech as such and it alters—to them—the meaning of what people wrote years ago. Their beliefs and feelings to them define reality, rather than anything objective and outside of themselves.

    I truly don’t mean this as an insult or provocation towards those I disagree with. This view is the fruit of years of carefully trying to understand the Left. It’s the only theory I have to explain this type of behavior.

    1. The left is pretty easy to understand: statists hate individuals acting and thinking independently. Anyone who believes the State comes first has no need for individuals bucking the system.

      Remember: contracts in an individualist society could simulate any kind of collectivist system the parties want, by signing over varying degrees of control of their property and income. A collectivist society cannot tolerate individualism of any kind, let alone simulate it.

  13. If you advocate that “hate speech” should not be protected by the 1st Amendment, you should remember that this would mean that a majority of your fellow citizens could declare that expression of your opinions could be criminalized. Personally, when I hear someone say that all White People are oppressors, as a White Person I find that hateful; same when I hear it said that heteronormativity is evil; same when I hear someone say that all Christians are bigots; same when someone says that anyone who voted for Trump should be excluded from consideration for a job opening; I’m offended when a student says my professor should be fired because he didn’t use my pronouns; I’m offended when I hear someone say that it’s bigotted to object that a person who is anatomically male must be allowed to use the girls’ dressing room; etc.

    It’s not surprising that demands to ban “hate speech” are coming from environments that are dominated by one ideaology — like academia and California — but these bubble-dwellers needed to remember that there’s a big world outside their bubble.

  14. Of course offensive speech, including “hate speech”, is protected by the 1st amendment.
    What would be the need to protect speech that doesn’t offend anyone?

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