Letter to the Editor 11/8/18

By THEODORE KUPFER | November 8, 2018

In response to “How can we fight the rising tide of hate in our country?” published on Nov. 1.

The News-Letter editorial, “How can we fight the rising tide of hate in our country?” includes many useful thoughts, especially on the evils of anti-Semitism and its incubation on social-media platforms such as Gab. But it also relies on a misreading of the First Amendment’s fighting-words exemption to argue that “hate speech” is constitutionally “unprotected.” The editorial quotes Chaplinsky v. Ohio, which holds that speech which “inflict[s] injury or tend[s] to incite an immediate breach of the piece” is not constitutionally protected. It then implies that hate speech, including “calling for the deaths of innocent people based on their religious beliefs, ethnicity, gender or sexuality,” would not be constitutionally protected under this precedent. This is incorrect.

Nobody disputes that some speech is not constitutionally protected. But as attorney Ken White has noted, the erroneous invocation of the fighting-words exemption as set out in Chaplinsky is a common trope of arguments in favor of unconstitutional censorship. In fact the fighting-words standard is almost never cited by federal courts to uphold restrictions on speech because it has been interpreted extremely narrowly. In 1969, the Supreme Court noted in Street v. New York that the fighting-words exemption only applies to speech that is “likely to provoke the average person to retaliation.” In a 1992 case, R.A.V. v. City of St. Paul, it struck down the City of St. Paul’s attempt to punish bigoted fighting words. In 2015, the Sixth Circuit summed up the standard in Bible Believers: “Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.” (For more, see this article by law professor Eugene Volokh.)

So the fighting-words exemption applies only to speech made in person, directed at a specific person, that would provoke an average person to retaliate with violence. It doesn’t apply to what we generally mean when we talk about “hate speech,” however abhorrent such words may be. If someone writes on social media or proclaims with a megaphone on 33rd and N. Charles that, as the Pittsburgh terrorist believed, all Jews must die, that person would be spreading an ancient and pathological evil. He would deserve opprobrium; deserve to be ostracized; some even argue he would deserve a punch in the nose. But he would not deserve to be charged with a crime. However hateful, such speech would still be constitutionally protected.

Signed,

Theodore Kupfer

Class of 2017

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