Judge Andrew Napolitano: Why hate speech is always protected

Last weekend, serious violence broke out in Charlottesville, Virginia, when a group of white supremacist demonstrators was confronted by a group of folks who were there to condemn the message the demonstrators had come to advance. The message was critical of the government for removing a statue of Gen. Robert E. Lee from a public place.

For some, Lee is associated with the military defense of slavery. For others, he is associated with the military defense of the right of states to leave the union — a union they voluntarily joined. For the organizers of the Charlottesville rally, the removal of the statue provided a platform to articulate crudely their view that the Caucasian race is somehow morally superior to every other.

Such a political and philosophical position is hardly rational to anyone who respects the dignity of all people and their moral equality before God and legal equality in America. Believing that one race is morally superior to others is largely a hate-filled theory, supportable only by bias, prejudice, fear and resentment — and perhaps a wish to turn back the clock to a time when the Supreme Court declared that nonwhites were not full people under the Constitution, a declaration eradicated by war and history and constitutional amendments.

These hateful, hurtful ideas — articulated publicly through Nazi salutes and flags and incendiary rhetoric last weekend — aroused animosity on the part of those who came to Charlottesville to resist and challenge and condemn these views. After the police left the scene and rejected their duty to protect the speakers and those in the audience, a crazy person drove his car into the midst of the melee that ensued, and an innocent young woman was killed when she was hit by the car.

Is hate speech protected under the Constitution? In a word, yes.

The First Amendment to the U.S. Constitution, which protects “the freedom of speech” from infringement by the government, has a long and storied history. The drafters of the amendment referred to it as “the” freedom of speech in order to underscore its pre-political existence. Stated differently, the freedom of speech is a natural right, one that derives from our humanity, and hence it pre-existed the government that was prohibited from infringing upon it. The government doesn’t grant free speech, but it is supposed to protect it.

In the early years of the republic, Congress punished speech that was critical of the government, through the Alien and Sedition Acts. The same generation that had just written that Congress shall make no law abridging the freedom of speech abridged it. During the Civil War, Abraham Lincoln, relying on no law, punished speech in the North that was critical of his wartime presidency. During both world wars, Woodrow Wilson and Franklin D. Roosevelt used the Espionage Act of 1917 to punish speech that was hateful of the government, because, they argued, it might tend to undermine the nation’s war efforts. Lincoln’s infringements were rejected by the Supreme Court. Wilson’s and FDR’s were upheld.

It was not until 1969 that a unanimous Supreme Court gave us the modern articulation of the nature and extent of free speech. Clarence Brandenburg, a Ku Klux Klan leader in Ohio, verbally attacked Jews and blacks in the government in Washington, D.C., at a public rally. He urged his followers to travel to Washington and produce violence against them. He was prosecuted and convicted under an Ohio law that largely prohibited the public expression of hatred as a means to overthrow the government.

Brandenburg’s conviction was reversed by the Supreme Court, which ruled essentially that the whole purpose of the First Amendment is to protect the speech we hate and fear. The speech we love and embrace needs no protection. Moreover, the right to decide what speech to listen to is enjoyed by individuals, not by groups collectively and not by the government.

All innocuous speech, the court ruled, is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it. This rule — known as the Brandenburg doctrine — has consistently been upheld by the court since its articulation.

Now, back to Charlottesville. The government cannot take sides in public disputes, because by doing so, it becomes a censor and thus infringes upon the free speech rights of those against whom it has taken a position. On the contrary — and this was not done in Charlottesville — the government has the duty to protect the speaker’s right to say whatever he wishes and the audience’s right to hear and respond to the speaker.

When the police decline to maintain order — as was their decision in Charlottesville — they permit the “heckler’s veto,” whereby the audience silences the speech it hates. And when the heckler’s veto comes about through government failure as it did in Charlottesville, it is unconstitutional. It is the functional equivalent of the government’s taking sides and censoring the speech it hates or fears.

The whole purpose of the First Amendment is to encourage open, wide, robust debate about the policies of the government and the people who run it. It would be antithetical to that purpose for the government itself to decide what speech is acceptable and what is not in public discourse.

What about hate speech? The remedy for it is not to silence or censor it, because we need to know from whence it comes. The remedy is more speech — speech to challenge the hatred, speech to educate the haters, speech to expose their moral vacuity. More speech will create an atmosphere antithetical to hatred, and it will reinforce the right of every individual to pursue happiness, which is the American promise.

But that promise is only as valuable as the fidelity to it of those in government, whom we have hired to protect it. In Charlottesville, they failed.

Source: Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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