There’s no hate speech exception to the First Amendment
The First Amendment protects the speech we hate to hear.
Hard as it is to accept, the right to express vile and repugnant thought is guarded by the Constitution. Of course, there’s no right to smash a car into others who have gathered to express alternative opinions. But it’s the job of elected officials and law enforcement to protect both the purveyors of ugly language and those who gather to protest it.
That’s reality for Governor Charlie Baker and Mayor Marty Walsh. Bracing for a “free speech” rally that might take place Saturday on Boston Common, on Monday they held a joint press conference to send the message that while Boston, the cradle of liberty, recognizes free speech, they really hope the haters choose another time and place to exercise their rights.
They are right to be disgusted by the weekend rally in Charlottesville, Va., which was organized by white supremacists and neo-Nazis. They are right to denounce their gospel of bigotry and hatred and the domestic terrorism it spawned. James Alex Fields Jr. of Ohio, 20 years old, allegedly smashed his car into people who were protesting the nationalist rally, killing Heather Heyer, 32, and injuring at least 19 others. That’s criminal, and there’s no First Amendment protection for that.
But trying to ban a Boston gathering undermines an underlying precept of our democracy. A corporation like Google can set the parameters of permitted speech in its workspace. Organizers of the St. Patrick’s Day parade can legally exclude a gay veterans’ group. But government can’t restrict speech just because it sickens or offends others.
“I don’t want them here, we don’t need them here, there’s no reason to be here,” said Walsh, about a rally planned by a mystery group whose organizers say they have nothing to do with the organizers behind the Charlottesville rally. “Freedom of speech isn’t about racist remarks and division,” the mayor added.
Unfortunately, the mayor has it backwards. “Constitutional protection is not needed so much for someone saying, ‘I like you,’ ” said lawyer Harvey Silverglate, a staunch defender of First Amendment rights. “But it assuredly is needed to protect someone who says, ‘I hate you.’ ”
Just last June, the Supreme Court unanimously reaffirmed what it called a “bedrock” principle: “Speech may not be banned on the ground that it expresses ideas that offend.” In a case which upheld the right of a band called “The Slants” to trademark its racially offensive name, Justice Samuel Alito wrote, “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.”
When it comes to neo-Nazis, the right to promote their twisted thinking goes back to the 1977 case Nationalist Socialist Party of America v. Village of Skokie. Organizers who described their group as a “Nazi organization” wanted to march through the streets of Skokie, Ill., which was at the time a village where over half the residents were Jewish, some survivors of Nazi concentration camps. The residents of Skokie argued the march would “incite or promote hatred against persons of Jewish faith or ancestry.” In the end, the Supreme Court upheld the Nazis’ right to march with swastikas, on the grounds that promoting religious hatred is not a reason for suppressing speech.
We can and should speak up against hate. As the Supreme Court makes clear, there’s no hate speech exception to the First Amendment. With that freedom comes a heavy burden for government officials like Baker and Walsh, who must try to keep protected speech from turning into acts of violence.