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Ken White in the LA Times: Hate speech is protected speech

By June 9, 2017

In a Los Angeles Times op-ed yesterday, Ken White breaks down some common arguments put forth in favor of censorship that, while touching on the moral sympathies of many Americans, are incompatible with longstanding judicial interpretations and the practical application of the First Amendment.

A California-based attorney by day, White is known for his astute and often comical commentary on free speech issues for the popular blog, Popehat.

White writes in the column:

Free speech and its limitations are on Americans’ minds. In the past year we’ve seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the president’s severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isn’t inherently bad. It’s good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

White goes on to address six common pro-censorship arguments and fleshes out the legal realities of each. The crux of his op-ed is his response to one of the most common misconceptions we hear at FIRE: “Hate speech is not free speech.” To that, White writes:

This popular saying reflects our contempt for bigotry, but it’s not a correct statement of law. There is no general 1st Amendment exception allowing the government to punish “hate speech” that denigrates people based on their identity. Things we call “hate speech” might occasionally fall into an existing 1st Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But “hate speech,” like other ugly types of speech we despise, is broadly protected.

As we’ve often argued here at FIRE, those who deplore hate speech should speak out against it, not against their opponents’ right to speak.

If you’re interested in hearing more of Ken White’s perspective, you can check out his full op-ed in the Los Angeles Times, his blog Popehat, or his recent interview on FIRE’s podcast So to Speak.