Judge’s Opinions

Protecting the Speech We Hate

“Those who lack the courage to change history are sadly doomed to become its objects.”
— Rev. Fr. Alfred Delp, S.J. (1907-1945)

Not too long ago, it was considered unfashionable to discuss the Nazis in Germany in the 1930s and ‘40s in terms of anyone’s present-day behavior. The Nazis were the most depraved monsters in modern history, the argument went, whose horrors could not rationally be compared to anyone’s behavior today.

Well, just last week, the infamous Ye — the rapper formerly known as Kanye West — told Alex Jones that he admired Hitler and liked the Nazis. This was shortly after Ye and his Holocaust-denying friend Nick Fuentes dined with former President Donald Trump. And the Trump/Ye/Fuentes dinner preceded by a week Trump’s public call for the “termination” of the Constitution along with its guarantee of the freedom of speech. And all that preceded Ye’s posting on Twitter of a Star of David superimposed upon a swastika, and Elon Musk’s subsequent suspension of Ye’s Twitter account.

What’s going on here?
What’s going on are variants of hate speech. In Ye’s case, it is hatred for the Jewish people and the natural law. In Fuentes’ case, it is hatred for the Jewish people and the truths of history. In Musk’s case, it is hatred of hatred, but also of the freedom of speech.

Is hate speech protected by the First Amendment? In a word: YES.

Here is the backstory.
Under natural law principles — the belief that our individual rights come from our humanity — all persons can think as they wish and say what they think and publish what they say, without a government permission slip and immune from the interference of anyone else. The signatories of the Declaration of Independence and the framers of the Constitution and the ratifiers of the Bill of Rights fervently believed this.

The Declaration pronounces our rights to life, liberty and the pursuit of happiness as inalienable. The Constitution theoretically separates, divides, checks and balances government so as to deter the accumulation of too much power in one place. We all know how that has worked! And the Bill of Rights openly restrains the government from interfering with fundamental individual liberties, even liberties unarticulated in the Constitution.

So, the First Amendment doesn’t grant the freedom of speech; it prohibits Congress from interfering with it. The 14th Amendment and definitive judicial interpretations have imposed the same prohibitions on all levels and all branches of government.

What about speech that hurts by its very utterance? What about hate speech?

Hate speech articulates an intense or passionate dislike of a person because of a group to which the person belongs. Membership in the group is often immutable, such as race, place of birth or ancestry; and the speech is often so intense as to be immediately intimidating or threatening. Hate speech is also hurled because of personal characteristics, some individually chosen and some chosen by nature.

I am not talking about acceptable hatred — hatred of sin or evil, or hatred of hatred. I am talking about hatred of human beings.

Speech that articulates hatred of human beings is morally repugnant because people change, yet it is still only speech. Thomas Jefferson offered that hate speech didn’t bother him because it neither picked his pocket nor broke his legs. Yet, his predecessor in the presidency, John Adams, signed into law and enforced the Alien and Sedition Acts, which punished speech that aroused hatred of the government.

Both swore allegiance to the Bill of Rights. One was faithful, and one was not. That ambiguity from government has persisted to the present day, notwithstanding Supreme Court decisions protecting hate speech.

When Musk acquired Twitter, he claimed that the new Twitter would be the free marketplace of speech, yet he has banned both Ye and Jones based on the content of their speech.

The theory behind protecting hate speech has several levels. One is that speech is a natural extension of thought, which requires no permission slip. Another is because the language of the First Amendment means today that government shall make “no law” infringing upon the freedom of speech, the courts have imposed a “hands off speech” rule upon government.

A third level is the historical truism that once you make an exception to the “no law” command, there will be no end to the rabbit hole down which the exceptions will descend. And a fourth level is the view that the better remedy for hate speech is more speech — speech that challenges and neuters it — rather than futile suppression.

If hate speech became prosecutable criminally or actionable civilly, who would speak out on anything?

Fr. Alfred Delp, a Catholic priest in Munich, Germany, during World War II, was arrested by the Gestapo because his sermons at Mass proclaimed Christian love of, and freedom of religion for, all persons. Before being sentenced to death for the sermons, he was confined to a concentration camp and handcuffed 24/7 purportedly to prevent him from writing more sermons and saying Mass. He did both in Latin, so his captors didn’t understand what he was doing.

On the scaffold before his hanging, he blessed those about to send him to Heaven. They responded by cremating his remains and scattering his ashes on a field of cow manure. That is diabolic depravity worthy of hatred. Yet, if Ye wants to praise that — and it is but the tip of the iceberg of the evil the Nazis perpetrated — he is free to do so.

The value of speech cannot be determined by government because government hates and fears whatever seriously challenges it. All speech — even that which seeks the removal of protections for free speech — is protected; or none will be. Hate speech can only be diminished by challenging the hater by the force of moral opinion, not by the force of law.
COPYRIGHT 2022 ANDREW P. NAPOLITANO
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