Sen. Ben Cardin (D., Md) is ending 2022 on an ominous note after declaring that “if you espouse hate… you’re not protected under the First Amendment.” The statement is obviously untrue, but it is only the latest example of the eroding support for free speech in Congress and the country at large. It is particularly chilling for one of the nation’s most powerful politicians (sworn to “support and defend the Constitution“) to show either a lack of knowledge or lack of fealty to the First Amendment.
He is not the first Democratic leader to make this clearly erroneous statement about the Constitution. Politicians such as Howard Dean have previously voiced the same view.
The First Amendment does not distinguish between types of speech: “Congress shall make no law … abridging the freedom of speech.” Indeed, the language was explained most succinctly by Justice Hugo Black in Smith v. California: “I read ‘no law . . . abridging’ to mean no law abridging.”
While the court has distinguished “fighting words,” criminal threats and other narrow categories, it does not bestow the government the open right to strip protection of speech that it deems “hateful.” Indeed, in Brandenburg v. Ohio, the Court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the KKK to speak even though it is a hateful organization. Likewise, in R.A.V. v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Finally in Snyder v. Phelps in 2011, the Court said that the hateful protests of Westboro Baptist Church were protected.
Sen. Cardin seems to be channeling the European view of free speech. That is also concerning given the growing anti-free speech movement in the country.
We have been discussing efforts by figures like Hillary Clinton to enlist European countries to force Twitter to restore censorship rules. Unable to rely on corporate censorship or convince users to embrace censorship, Clinton and others are resorting to good old-fashioned state censorship, even asking other countries to censor the speech of American citizens. It is an easy case to make given the long criminalization of speech in countries like France, Germany, and England.
This view is being reinforced on campuses where almost half of students believe, like Sen. Cardin, that hate speech is not protected by the Constitution.
As someone who was raised in a liberal Democratic family in Chicago, I do not know when the party went from being the defender of free speech to its most determined nemesis. However, with demands for censorship and the all-out war on Twitter, the Democratic party seems to have crossed the Rubicon on the First Amendment. That leaves many liberals (particularly classical liberals) and independents in a growing bind.
Many of us view free speech as our defining American right. This coming year is likely to see a further escalation in the fight for free speech from the Supreme Court (in the 303 Creative case) to our campuses. Some college presidents have declared that even “disingenuous” speech is not entitled to protection.
Sen. Cardin is a lawyer but appears to hold an extraconstitutional view of free speech. His view of the First Amendment is not simply flawed but dangerous at a time when we are engaged in an existential fight for free speech.
The entirety of Congress doesn’t care about the Constitution – a significant majority of the laws enacted violate the “pursuant to” requirement in the Supremacy Clause.
Let’s be honest, large numbers of voters, both Republican and Democrats want to overturn the First Amendment. What’s interesting to many of us is that neither party seems to understand when they are trying to censor speech they dislike.
Supporting the First Amendment really means supporting speech each of us finds offensive, ugly or obscene. The First Amendment doesn’t always protect speech or association we like. Popular speech and association doesn’t need protecting.
Virtually all of the push for censorship is coming from the left. It’s simply false to say that large numbers of Republicans want to “overturn” the First Amendment (by overturn, I assume you mean repeal, since the First Amendment is not a judicial decision that can be overturned). Your both-sides-ism simply doesn’t correspond with reality.
Spot on, Razorback.
Didn’t Republicans in Florida support a “Can’t Say Gay” bill to subvert Disney World’s freedom of speech (coerced through tax penalties). The censorship campaign actually harmed taxpayers in that Florida county.
Aren’t Republicans nationwide opposed to teaching truthful history about race throughout American history? America had an establishment of racism built into the government system that still exists in some parts of the USA (ie: 2014 “Ferguson Report” published by the U.S. Department of Justice).
What is untruthful about so-called “Critical Race Theory”? Virginia’s current governor won by running on CRT and Virginia doesn’t even teach CRT.
George W. Bush established “Free Speech Zones” to prevent freedom of speech around his campaign events. Apparently the purpose was that “photo ops” looked better if everyone was cheering for him with no protesters in sight. Reality check: all public areas in the USA are free speech zones. Presidents don’t choose what a free speech zone is.
For much of American history, so-called Conservatives viewed interracial marriage as “obscene” to be censored. In 2006, Republicans were outraged that “Cheerios” featured an interracial couple eating breakfast cereal. The fact that interracial couples exist. Cheerios responded by then featuring a same-sex couple, something Republicans also tried to censor.
In the most recent movie of “Elvis” so-called Conservatives demanded that Elvis be censored “from the waist down” to protect children from dancing.
My point was members of both political parties support censoring things they dislike. We just don’t notice it when we do it. Republicans are no better than Democrats when it comes to censorship.
+100
More like 100% B.S. Protecting very young children in public schools from grooming has zero to do with censorship of discourse in the public square, so that on the important public policy issues of the day only liberal-democrat arguments are heard.
Most kids are taught about the sexes at a young age – in Christian churches. The Bible is actually a very violent and very racy read with lots of sex stuff. Especially the Old Testament. Jesus himself didn’t agree with all parts of the Bible (written by other people).
Each state probably has different content, but judges and juries are great at sorting out harmful content to children.
What do you tell your child if they see an interracial couple in public or a same-sex couple in public? At some point kids need to have some knowledge of the outside world, maybe not graphic knowledge of everything.
Dealing with only the first thing wrong, “Didn’t Republicans in Florida support a “Can’t Say Gay” bill “, the first thing one needs to learn is why you are intent on teaching K-3 all sorts of things involving sex? Don’t you think you should teach them how to read first?
Another fine example of Epstein’s Third Law of Democrat Behavior: When in doubt, always fall back on the three D’s. Deny. Deflect. Dissemble.
The censorship regime carried out by the illicit collusion between the deep state, big tech and the media, and exposed by the Twitter files, is breathtaking in its audacity.
Exhibit A: The Russia collusion hoax. A sea of lies kept alive for 6 years running to destabilize the nation. Putin is laughing his a@@ off.
Exhibit B: Coordinated censorship of the Hunter Biden laptop and the Biden family corruption to rig the 2020 election. And prospectively, the 2024 election. So long as they think Biden remains politically useful.
Exhibit C: Suppression of COVID experts who dared to correctly challenge Progressive COVID dogma. Suppression of legitimate views that advanced Progressives’ political objectives but caused grave harm to millions of vulnerable Americans.
Exhibit D: Social media censorship, aka shadow banning, of the Progressives’ political enemies. Long denied. But revealed as fact.
One last question: How do you turn a censorious progressive in to a free speech absolutist? Take away his Twitter account.
What’s untruthful about CRT is that it spreads false doctrine that the constitution mandates inequality of opportunity based on race. False. The only mandated racism today consists of affirmative action intended to compensate for anti-black racists who were acting counter to the constitution. The constitution is fine. Those who don’t adhere to it are what’s wrong.
Can you name me a republican, senator or congressman that wants to eliminate free speech, other than non Republicans Cheney & Romney
When we cut through the B.S., what is this really? It is the left marshalling the power to silence its political enemies.
Given the barrage of hate speech let loose on so many conservatives and Republicans by CNN and MSNBC, one wonders whether these First Amendment Deniers are actually living under a rock.
There is no such thing as hate speech. There is speech that I don’t like. There is speech that hurt’s my feelings. There is speech that I agree with. There is speech that makes me happy, laugh, sad, or cry. I may hate to hear your words but how did we ever get to criminalize something that someone said. Is telling someone to “drop dead” hate speech? Could be. I consider everything that the pretender in chief has to say as hate speech. Who do I see about getting him arrested?
Thanks to Democrats becoming massively illiberal, this past election, I voted a combination of Republican & Libertarian. And it was the first time I voted for a Republican for a national office in two decades, thanks to the Iraq War lies pushed by the Republicans for their unjustifiable war on Iraq.
“…unjustifiable war on Iraq.”
– moseszd
_________
Just like someone sank the USS Maine, FDR “faked” Pearl Harbor to engender support for America’s entry into a war that was not wanted or justified, certainly not “common defense,” and LBJ magically discovered and took full advantage of the Gulf of Tonkin Incident and Resolution, the Twin Towers were brought down perfectly in their own “footprints” (Bldg. 7 was NOT HIT by anything but collapsed perfectly) to engender support for entry into the Middle East. You may guess who was vulnerable in the Middle East, who created, perfected and executed that scenario, and who the primary beneficiary was.
Jonathan: I think I have made it clear that a certain amount of “hate” speech is protected under the 1st Amendment. But then there is “hate” speech as distinguished from actual physical threats. I think you will agree the latter is not protected. I mention this because in response to my earlier comment (12/31 at 3:16 pm) “UpstateFarmer” responded with this: “”Stupid people like McIntyre are programming their own children or grandchildren to do the same thing…Our only hope is to stop them in their Mao like obsession. Just might come from the gun. I hope not. But we might have to resort to that” (12/31 at 4:02 pm)
Now when some of your followers resort to hateful or other pejoratives to refer to me I accept that. It goes with the territory on this blog. But when UpstateFarmer makes actual physical threats that would seem a clear violation of your “Civility Rule” in which you say: “..the Turley blog was created with a strong commitment to civility…We do not tolerate personal attacks or bullying” I would think UpstateFarmer’s threat of physical violence would come under this category. I suggest you remind UpstateFarmer that physical threats are not protected under the 1st Amendment!
Upstate Farmer never suggested anyone approach you with intent to cause physical injury. He pointed out that since there are leftists who follow Mao Tse-tung’s leadership, there may be no way to stop their attacks on our society except with a gun.
Upstate Farmer said “Stupid people like McIntyre are programming their own children or grandchildren to do the same. Our only hope is to stop them in their Mao like obsession. Just might come from the gun. I hope not. But we might have to resort to that.”
That very clearly includes Dennis as one of “them”: the “stupid people” who must be “stop[ped]” and for whom it might “come from the gun.” Given that Darren banned Jeff Silberman for simply saying “This is your final warning,” with no violence mentioned at all, Upstate Farmer’s comment is at least as threatening. Will Darren even warn Upstate Farmer?
ATS, you are always trying to cause trouble for good people. Upstate said nothing wrong. He pointed out a reality seen in Mao’s China and Stalin’s Russia, where these people killed tens of millions of people. You advocate that type of authoritarianism, and if your type were permitted to get away with your type of cr-p, we could end up dealing with a Mao or Stalin that will kill tens of millions more. The only way to stop such revolutions is with a gun, so the best thing to do is stop it now, and recognize who and what you are.
https://twitter.com/GretaThunberg/status/1608056944501178368
Anonymous: It appears Upstate Farmer is not the only one on this blog endorsing violence. Clyde Dotson says because “there are leftists who follow Mao Tse-tung’s leadership, there may be no way to stop their attacks on our society except with a gun”. S. Meyer says “Upstate said nothing wrong” and then also uses the “Maoist” troll to justify violence…”so the best thing to do is stop it now, and recognize who and what you are”.
It appears once you are labelled a “leftist” or a follower of Mao you are beyond the pale. Never mind I have never been a follower of Mao. But that doesn’t matter for some on this blog. Once they label you violence is justified. I attribute this to the Trump syndrome–violence is justified to get your way.
Perhaps you can tell me how to reach Darren Smith directly so I can bring this alarming trend to his attention. Thx.
Dennis, I don’t know how to reach Darren directly, but you can email Turley at the address listed here: https://www.law.gwu.edu/jonathan-turley
If you follow Mao, you believe in killing and others need to protect themselves. How many tens of millions did Mao kill. Once dealing with that type of politics one needs guns to protect themselves and their families.
If anyone needs censoring you do.
“They fight not for the lust of conquest. They fight to end conquest. They fight to liberate.” – Franklin D. Roosevelt
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. ”
Jefferson
You can add me, and Ralph Waldo Emerson to your list of people to be banned.
By the rude bridge that arched the flood,
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood,
And fired The Shot Heard ‘Round The World.
− Emerson, “Concord Hymn”
And Churchill
“Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail. We shall go on to the end, we shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be, we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and even if, which I do not for a moment believe, this Island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God’s good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old.”
Upstate Farmer is likely more familiar than Dennis on the cost and scarcity of ammo, hence he would not waste ammo on rodents.
Dennis’ comments show us time and again that the DNC paid trolls like him are not here to engage in genuine discussion but do what David Brock’s “Correct the Record” trolls et al always do: create mayhem
Stop engaging the trolls; deprive them of what they seek: attention
Sen. Ben Cardin is himself expressing hate speech.
“ Sen. Cardin is a lawyer but appears to hold an extraconstitutional view of free speech”. The fact he is a lawyer is hardly an endorsement towards the man’s ability to use reason and logic in his determination of any law. He’s obviously deficient in this area of endeavor. The real aim by this man and his ilk is to shut the public at large up, and crush any dissent against their socialistic ideas and aim. Inducing fear and hesitancy for The People to speak their minds is the goal.
The urge to ban “hateful” things is a mania. In addition to “hate” speech, there are: “Hate” movies (Gone With The Wind), “hate” songs (Baby, It’s Cold Outside), “hate” op-eds (Tom Cotton), and “hate” (not haute) cuisine (deemed “cultural appropriation”), “hateful” countries (America), “hateful” policies (whatever irks the Left), “hateful” protests (those defending freedom), “hateful” ideas (individualism).
“Hate” is now used as a universal smear, and a debate ender. Those in the grips of hate-mania are like a spoiled child throwing a fit. His mother serves him peas, and he tosses the bowl to the floor.
The Bill of Rights and rest of the U.S. Constitution is a “package deal” not an a la carte menu.
If you support the 1st Amendment rights, then you also support the 14th Amendment rights of Women, African-Americans and LGBT-Americans. And 2nd Amendment rights of gun owners.
Conservatives may want to check their voting record over the past 50 years – not too conservative on the U.S. Constitution either. Conservatives supported unconstitutional “Stop & Frisk” policies or driving while black. Conservatives had no problems with federal agencies illegally spying and disrupting religious institutions.
Using a sports metaphor: if you want a system with fair rules and an impartial referee, that’s means nobody gets what they want all of the time, but everyone also has an opportunity to win. Unlike Kari Lake’s view that elections only matter if Republicans win.
Cardin is wrong on the 1st Amendment, just like many Republicans and Conservatives are wrong on other constitutional rights.
” Conservatives supported unconstitutional “Stop & Frisk”
AZ, stop, ask, and frisk was found constitutional by the Supreme Court. For families living in crime-infested areas, it is a blessing. Their children remain alive instead of ending six-feet-under. Isn’t that desirable?
The Dems of NYC(and other cities) supported stop and frisk. It couldn’t have happened without their support as they are the majority. “Driving while black” isn’t a crime, but failing to obey the rules of the road will get you stopped. And it’s the Dems who have cozied up to the federal agencies engaged in illegal spying…just turn on MSNBC and they’re all there.
I’m not a conservative and you are wrong on reality.
Hate speech is only allowed when it is anti-White hate speech. Hatred and violence against WHITE people is now perfectly legal and encouraged by the government, media and all other institutions. When will White people finally organize to fight for their future existence??? Because these satanic communist scum are very clearly planning on our future extermination. Once they take our guns away, we will find ourselves in death camps. Open up your eyes and ears! There is Safety In Numbers. We must band together and ORGANIZE. If we do not do this NOW, it is very clear to see what they have planned for us. Slavery, abuse, hunger, poverty, misery, terror and extermination.
You must be so busy ironing your white sheets. Gotta look good at the meeting right?
FishWings, most people place the white sheets in their beds, not over their bodies. Of course, you got rid of your former habit and put your white sheets away to ply your trade another way.
“As someone who was raised in a liberal Democratic family in Chicago, I do not know when the party went from being the defender of free speech to its most determined nemesis.”
You should know. It began after Democrats lost three consecutive presidential elections in 1980, 1984, and 1988. When they finally regained power in the ’90s, they developed a long term strategy to retain power. That included a never ending push for more immigration to change the population; that’s also when Democrats began the never ending push to continuously change voting laws to benefit them; and that was when they began trying to destroy Rush Limbaugh after he became popular in the late ’80s. All three prongs – more immigration, perpetually change voting laws, and bully conservative media to try to destroy it were all part of the same long term strategy for Democrats to retain power.
Then Fox News became popular in the ’00s. Rich Democrats began funding Media Matters and a whole host of other sh!tty far left organizations like the Center for American Progress to try to destroy Rush and Fox News by going after their funders.
Then came the Citizen’s United opinion. Democrats considered it a huge threat to their power. Their lawful bullying tactics had failed to remove Rush and Fox News from the airwaves, so they decided to try to gut the 1A to rig the legal system in their favor. On 9/11/14, one of the most disgraceful votes in the history of the U.S. Senate occurred when EVERY Senate Democrat voted on Harry Reid’s Senate Resolution 19 to gut the First Amendment.
You’ve been on notice since at least the rise of Rush over 30 years ago that Democrats wanted to shut him up. And you’ve known since that disgraceful 9/11/14 vote that they want to rig the legal system to criminalize political dissent. And if they ever get 60 votes in the Senate, they absolutely WILL do so.
The idea that it just sorta snuck up on you that Democrats don’t like free speech strikes me as ludicrous.
I was about halfway through writing something along the lines of what Anonymous said above when I saw his post and realized I could not say it any better. Indeed, he/she hit that nail on the head so many times it has been driven right down to China. The Professor should incorporate it (of course, with attribution) in his next Op-Ed.
Would Senator Cardin condemn hate speech towards Russians or the Chinese or Donald Trump?
Freedom of speech is not complicated people try to complicate it by adding there feeling to it and there opinion
Mr. Turley, Let’s take a moment to review what the Congressman said and what he didn’t say.
Respectfully, he didn’t say “Hate speech is not protected by the Constitution”, he said, “if you espouse hate… you’re not protected under the First Amendment.”
To me, there is a subtle but large difference.
You say the Congressman is a Lawyer, if so do we think he’d be glib enough to toss out a poor choice of wording as “Hate speech is not protected by the Constitution”?
As a Lawyer, he chose, then uttered the words with forethought. As a Lawyer isn’t the language a useful tool of success?
So he chose the wording to be “if you espouse hate… you’re not protected under the First Amendment.”
My supposing is He is attempting to diminish the Right of Freedom of Speech to a Protection, similar to our Protection to operate a motor vehicle on a sanctioned road. Thus he firstly diminishes what he did not create as though it is his to condemn as frivolity.
Fair enough and but isn’t it our misstep that we accepted his glibness that diminishes our Freedom to a simple municipal code.
Freedom of Speech is not a Protection, it’s a Freedom; and we should not allow him a glib use of such.
He’s framing his measured words to define, later, what is ‘hate’, not what you or I are protected by or from.
Because in his mind he’s already either elevated the 1st Amendment beyond to what’s attainable or he’s diminishing the Freedom so as to redefine the crime.
It’s pretty chilling when you give it some thought and clarify what he said instead of what we wished he’d said.
You are offering a “distinction without a difference.”
Americans must adapt to the outcomes of freedom.
Freedom does not adapt to people.
Dictatorship does.
Cardinal Dumber
It is not news to me, but the compromising of the 1st Amendment by a prominent politician cements the now undeniable claim that the Democratic Party does not support free speech. This is no longer a controversial statement.
Democratic Party = Woke Radical left Totalitarian corporate party.
quiet conservative – it’s true, all the push toward censorship in modern America comes from the left.
If I described a society that existed at some time and place, and all I told you was that there were two broad camps, A and B, with very different policy proposals, and Camp B was fine with letting there ben a free and open debate about their policy ideas, while camp A wanted to censor opposing views. If that’s all you knew, ask yourself if you could tell, from that information, which camp’s ideas would best hold up to critical scrutiny. The question answers itself.
Professor Turley stands on the Constitution in challenging the right of Carden and others to control “hate speech.” But, as expressed by “the Emotional Italian” below, I think that there is firmer ground: “hate speech” is meaningless as a legal doctrine. First, we must ask whether we are talking about the emotional state of the speaker or the tendency of the words themselves to harm the subject? The first cannot be true because there is no way to determine with legal exactness the mental state of the speaker. And, we can never really define “hate”. If I don’t like the Boston Red Sox, am I a “hater”? In our emotions, there is no difference between “hate” and “dislike”. On the other hand, If we focus on the effect of the words, do we focus on 1) their effect on “the reasonable man” of the common law; or 2) on people who complain the loudest (e.g., Taylor Lorenz); or 3) on favored groups who idiologically “own” the right to be offended (e.g., African Americans). If we use a “reasonable man” standard, we would simply be following the common law of defamation in most cases, except that we might extend defamation to groups. In practice, Democrats and their allies will want to focus on complaints from both the loudest or the ideologically favored. But this would require the abandonment of the idea of an objective legal standard in favor of a kind of permanent insane asylum where the meaning of words will change on a daily basis depending on the whims and interests of the those have the legal privilege to define the meaning and effect of words.