Sen. Cardin: Hate Speech is Not Protected by First Amendment

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.

201 thoughts on “Sen. Cardin: Hate Speech is Not Protected by First Amendment”

  1. Speaking of “hate speech”, I’m in “Twitter Jail”, and have been there since January 11th, 2021.

    On January 7th, the day after the so-called “Insurrection”, I made a reply to someone else’s tweet. All I simply did was cite the title of Michael Savage’s book, “Liberalism is a Mental Disorder” and followed that up with the statement that the left seems to be exhibiting symptoms of schizoid behavior. 4 days later I’m in “Twitter Jail” and am still there.

    Twitter tells me I violated their “hate speech” policy.

    Question: How, in any way, shape or form does what I said constitute a violation? I wasn’t advocating violence towards schizophrenics, I wasn’t harassing anyone on the basis of disability, etc. All I was doing was giving my, albeit non-professional opinion. IMHO, if that’s “Hate Speech” then, as a society, we’ve really come off the rails!

    By the way, my Twitter handle is @Ganahee_SD, just in case someone out there can put the bug in Mr. Musk’s ear to review my tweet, and reinstate me if deemed appropriate.

    1. Good job! I’m in Twitter Jail too. I asked whether an androgynus person in a libsoftiktok video was or woman. This happened December 29th. I too violated their hate speech policy by asking a valid question. I suppose Elon Musk is not true to his word? Hmm…. I was always.suspicious. Anyway, I sent a message to Twitter saying I was not removing the Tweet, I would not apologize, I would not supply a phone number, and they needed to do what they had to do. (They now want my phone number all of a sudden? That too seems suspicious.)

      1. Actually, I’m sure the reason why they want us to verify our eMail address and phone number is so they can turn that info over to their buddies at the FBI, DOJ, CIA and DHS.

        The Twitter app, on my phone, wanted me to delete the offending tweet, verify my eMail, and phone, immediately after I was suspended. Not sure what address I’d have to write to to inquire about getting out of Twitter Jail, but I’d gladly write to them, and like you, I’d not apologize or back down. My opinion, unprofessional though it might be, is mine, and if they, the FBI, CIA, DOJ and DHS don’t like it, then frankly they can put it where the sun never shines!

  2. “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.” “I did not quit the democrat party, the democrat party quit me.” Ronald Reagan. Two of my favorite quotes. The George carlin quote, doesn’t sugar coat it. Comedian George Carlin once said: “Rights aren’t rights if someone can take them away. They’re privileges. That’s all we’ve ever had in this country is a bill of temporary privileges.”

  3. The evil spawned by authoritarian government officials who seek out and censor hateful, racist, sexist, and other disgusting words is overwhelmingly greater than the words themselves.

  4. I’m a political scientist, and a textbook I used a few years ago listed “hate speech” among “exceptions” to free speech (along with libel etc.) and stated that “It has not been determined whether hate speech is protected under the First Amendment.” A blatant lie in the textbook; there is no ambiguity here. But it’s what they want you to believe.

    In a August 2021 Pew poll, 65% of Democrats said they support government speech control “even if it limits people from freely publishing or accessing information.”

  5. democrats have for more than a decade been fighting Free Speech tooth & nail. If any proof is needed, Sen cardin is proof positive.

    1. Turley really doesn’t know when leftists moved beyond classical liberalism to destroy free speech? This was ALWAYS the goal, you were just blissfully ignorant in your support over all these years.
      Just like Bill Maher, radical leftism (aka Marxism) is the reality that you’ve been working towards with your entire career. A little late now to finally wake up and say “oops, my bad, that’s not what I meant”

  6. The 1st Amendment was written to protect offensive language. That was the only reason it was written. Democrats and RINOs are our biggest threat to our lives and freedoms.

  7. He swore an oath to protect and defend the constitution of the United States. He has clearly violated that oath, and should, therefore, be impeached and removed from office.

  8. And who decides what “hate speech” is?

    The grotesque hypocrisy that “higher ed” is trying to foist upon the country was on full display at Berkeley in 2017 when a hysterical mob was allowed to do $1 million damage to the campus to shut down an appearance by the comedian/provocateur Milo. The faculty senate gagged up a “report” blaming the Republicans for inviting him while neglecting to mention that earlier in the year Louis Farrakhan had been allowed to use one of the largest lecture halls on campus for an all-day hate fest. No one interfered with his speech.

    30 feet away from the “official free speech spot” on Sproul Plaza (it’s embedded in stone) the night of the Milo fiasco a young woman in a MAGA cap was blasted in the face with bear spray by an old communist for protesting the shut-down of speech. Though this appeared on the local TV news and possession of that spray is illegal without a permit in California (Amazon will not ship it) no action was taken despite the offender’s clear profile right on video.

    NOW the law school student groups have demanded that no “Zionists” be allowed to speak, thus creating a dilemma for law school Dean Cheriminsky. (A local student housing co-op not only bans white residents but requires a “white alert” is one is allowed in the building.) See the online magazine of the alumni association “California Monthly” which at least wrote on the subject, something conspicuously ignored by the “liberal media”.

    Selective enforcement of the law is one of the essential stepping-stones to a fascist regime.

    1. The young woman at Berkeley that was pepper sprayed was not wearing a MAGA hat she was wearing a red Bitcoin hat and was there with a campus group promoting crypto mining and was only there to use the event to garner interest in her own group.

  9. Our Civil Liberties do, indeed, come from God. The Constitution’s Bill of Rights, certainly, had the intent of protecting our God-given rights. All to often we stop there. If we are to use the Declaration of Independence as our truest understanding of why government exists at all, we should all recognize that government – powered by the consent of the governed – is meant to not simply be “hands off” when it comes to our freedoms, but to “secure” and fight for our individual freedoms from ALL that would threaten to take them away. In this regard, if “twitter” (et al) is the new way to communicate written or spoken ideas (especially when the government has declared that you cannot meet up in person… unjabbed) – then government has an obligation to work to OPEN that arena – not work to shut it down, or limit the liberties of “some.” The same is equally true of arming the citizens (who choose to be armed), protecting one’s personal property, securing one’s privacy, etc. The government is “supposed to” be the champion of civil liberties … and when they are not, the ACLU (of old) and the free press is supposed to call them out – to the point of bringing the government down via the courts if it has to. Which is all to Turley’s point: The Press, the ACLU, and, apparently, the Democrats, have all been co-opted to fight FOR the government… the intent of the Founders be damned. Who, now, shall offer the counter to the weight of our run away government?


      The entire communistic American welfare state is unconstitutional including, but not limited to, matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, EPA, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

      Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity – general Welfare – all, the whole, well proceed – includes facilitating infrastructure such as roads, water, electricity, telecom, internet, mail, rubbish collection, etc. The same article enumerates and provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use. If the right to private property is not absolute, there is no private property, and all property is public.

      Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.

      “[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”

      – James Madison

      “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

      “…men…do…what their powers do not authorize, [and] what they forbid.”

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

    2. Which god does our civil liberties come from? (The Muslim one? The Christian one? One of the Hindu ones? …)

        1. That’s possible, just like it’s possible that there are no gods at all, and it’s possible that there are X distinct gods, for any X > 1.

          But their believers don’t believe that they’re the same gods, and some religions believe in multiple distinct gods.

          1. While your response is interesting it is full of assumptions. Further those assumptions even if true would still only be assumptions.

            You claim there could be multiple gods. So ?

            Christianity presumes a holy trinity – three gods in one.

            I would further note – regardless of what is true about “god”, humans are inherently religious creatures. It is a fundimental attribute of humans.

            Even atheists are incredibly religious. The modern left is more religious than christian evangelicals.

            The only difference between the modern left and christian fundimentalists, or other religious fanatics of history is the dogma they have adopted.

            1. It’s a fact that there is no way to know how many gods exist. It’s also a fact that the adherents of various religions do not believe in the gods of other religions.

              Faith is not knowledge. There is no way to factually answer the question “Which god does our civil liberties come from?” The answer can only be based on faith, and people’s faith-based answers vary.

              1. “It’s a fact that there is no way to know how many gods exist.”
                Likely false, but irrelevant – if true so what ?

                “It’s also a fact that the adherents of various religions do not believe in the gods of other religions.”
                Completely false. The adherents of one religion have no means of knowing whether the gods of another are merely their own expressed to suit them.

                “Faith is not knowledge.”
                Faith is not fact. Many things that can not be established as fact are knowledge.

                “There is no way to factually answer the question “Which god does our civil liberties come from?” The answer can only be based on faith, and people’s faith-based answers vary.”
                This is an incredibly stupid argument, and not relevant.

                I would think that left wing nuts who constantly change identities at whim would have little difficulty grasping that every god that any one ever professed belief in could all be the same god.

                People answer what does the moon look like differently, they fact that their answers vary does not change the moon.

              2. By definition, there can only be one God. Just like there can only be one Universe. How people label this one God is irrelevant. All that matters is that our individual rights exist outside of any govt.

                1. Nonsense. *Some* people’s beliefs about god means that there is only one, but *other* people’s beliefs about god allows multiple gods. Hindus, for example, believe in multiple gods.

                  The general (dictionary) definition of “god” allows for the existence of multiple gods. For example, the OED definition:
                  I. In uses relating to polytheism, and senses derived from this.
                  a. A superhuman person regarded as having power over nature and human fortunes; a deity (use in the singular usually refers to a being regarded as male (cf. goddess n.), but in the plural frequently used to refer to male and female beings collectively). Chiefly applied to the divinities of polytheistic systems; when applied to the Supreme Being of monotheistic belief, this sense becomes more or less modified: see sense A. 6b. 
                  b. With postmodifying of-phrase or (now archaic) premodifying genitive indicating the department of nature, or human activity or passion, over which a particular god is thought to rule.

                  1. Nope,
                    God, is the Supreme Being. God is ultimate and eternal. God is that than which no greater can be conceived. There cannot be two Supreme Beings for the obvious reason that neither of them would be supreme. There cannot be several ultimate realities because none of them would be ultimate. It is impossible for there to be multiple greatest conceivable beings, both because “greatest” must mean greater than all others, but also because I can conceive of a being that is great beyond any possible rivals. If there are many of something, I can easily conceive of something greater than that.

                    God is beyond space and time and if you were to have more than one, there would be no discerning between them so they would become one again. Any lesser definition of God, is just that, lesser and therefor not God.

                    Just as you can’t have multiple Universes, you can’t have more than one God.

        1. The US has people of diverse religions in it, so no, that wouldn’t be the Christian god to the exclusion of others.

  10. I find Sen. Ben Cardin’s words on hate speech to be be hateful and very offensive. He should resign immediately and should not be offered any protections by being a senator. His partisan and hateful words have so place in politics or at home. Shame shame Ben Cardin. Stop your hate speech against those with which you simply disagree.

  11. How exactly is questioning a vaccine’s effectiveness and the origin of Covid “Haye speech”?

    1. Your expecting logic from the left ?

      I find the most hateful people on twitter are those ranting about how must they hate the haters.

  12. I am just appalled at how quickly and easily elected officials can forget their oath of office and use a partisan ideology to justify ignoring the law. Cardin is and has always been somewhat slippery in his interpretation of facts that do not cast him or his party in a favorable light, but this is really beyond the pale. Where is the outage from others in his home state? This is yet another reason to have term limits for all elected offices.

  13. He should immediately loose his seat. If you don’t even know what the 1st amendment is about you’re no qualified to serve!

  14. The right doesn’t come from government, but the Creator. The 1st Amendment is a restraint against government limitations on the right.

  15. First of all, they are not democratic. They are democrats. The only thing democratic about them is the desire for mob rule. Second, the Constitution says freedom of speech shall not be infringed. If someone is offended by something another person freely says, that’s their problem.

  16. 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.

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