‘So to Speak’ podcast transcript: Should the First Amendment protect hate speech?

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, Wat. Welcome on to the show.

Wat Hopkins: I’m glad to be here.

Nico: We were talking over email, and you had mentioned that this was one of your first writings on the topic of hate speech and that in the past you’ve written more about libel law and other issues related to the Supreme Court. How did you get interested in exploring hate speech?

Wat Hopkins: Well, it goes back a ways. I am at the end of my career. I recently retired from Virginia Tech, but I told myself I was gonna keep writing. And maybe a year before I retired, but after I had decided to retire, I started this book. And it goes back several years when I was at a conference. And as a First Amendment scholar, I was being troubled by what I perceived in myself, as well as in others, of being... I thought it was time to reassess my interpretations of the First Amendment.

And part of that had to do with the outbreak, the increase in hate speech and the fact that there were a number of people who were being harmed who were not involved in the public sphere. And I was wondering, and I was feeling a little guilty about this. I mean I’m a First Amendment kind of guy. And I think many attacks on free speech are uncalled for. And free speech, I tell my students the First Amendment is the defining part of the Constitution that defines what a democracy’s all about, what a democratic republic’s all about. Without that you can’t have a democracy.

So, I was feeling a little guilty. And I was at a conference, and I was chatting with a friend of mine who’s also a First Amendment scholar, much more accomplished than I am. He’s the dean of a law school. His name is Rodney Smolla. And he’s –

Nico: Oh, yeah. He’s been on the podcast before.

Wat Hopkins: Oh, has he?

Nico: Yes.

Wat Hopkins: Not many people I know of who are smarter than Rodney Smolla. And I got the impression that he was having some of the same feelings. And so, as I thought about it, I was wondering about my interpretation of the First Amendment. We have a country in which individuals are supreme. Our criminal justice system, it’s better to allow a guilty person to go free than to imprison an innocent person. But that kind of protection seemed to be scant, sometimes, when we’re dealing with expression.

And we seemed to have wanted to allow people to be harmed because we have the First Amendment. And so, I started thinking, is that what the First Amendment means? And so, I began looking at it, going at this as to: Is there a solution? Because there was a lot of handwringing going on. What do we do about this? There’s nothing we can do because of the First – And so, that’s how things got started.

Nico: You write in your book while hate speech is presumed to be protected by the First Amendment, the Court has never so ruled. Indeed, the Court has never directly confronted a hate speech case. I think that’ll surprise many people, that contention, because people are familiar with different cases like Matal v. Tam, Virginia V. Black, R.A.V. v. St. Paul, the Skokie case which was never argued in front of the Supreme Court but reached them, and they said more or less that First Amendment rights are at play here and sent it back down to the lower courts.

And then, of course, there’s Snyder v. Phelps which is the case involving the protesting outside of veterans’ funerals by the Westboro Baptist Church. And the Supreme Court has said a number of things. In the Snyder v. Phelps, it said speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here inflict great pain. But on the facts before us, we cannot reach to that pain by punishing the speaker.

As a nation, we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate. In Matal v. Tam, Alito in a 9-0 decision wrote that the idea that the government may restrict speech expressing ideas that offend strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, and any other similar grounds is hateful. But the proudest post of our free speech jurisprudence is that we protect the freedom expressed to the thought we hate.

Now, one might say that those aren’t hate speech cases because Snyder v. Phelps dealt with the question of the protection for intentional infliction of emotional distress. Matal v. Tam dealt with patent and trademark law and disparagement. You have in Virginia v. Black truth, threats, intimidation. Virginia v. Black and R.A.V. v. City of St. Paul are cross burning cases. You have fighting words there. So, I was wondering if you can kind of unpack that reasoning for the audience and maybe explain why you don’t see any of these as being hate speech cases or any of the dicta that comes within those cases to reflect the actual holdings of the court.

Wat Hopkins: In some of those... This is part of the problem in defining what hate speech is.

Nico: Sure.

Wat Hopkins: Snyder v. Phelps, as you indicated, wasn’t a hate speech case, but it very well could have been. But one of the things attached to it that doesn’t attach to hate speech is the political aspects. The Supreme Court, as you know, didn’t deal with intentional infliction of emotional distress. It left that alone. The trial court in the Fourth Circuit both found that there was intentional inflection.

But when it got to the Supreme Court, the court acted as if and ruled that the difference was that this speech, these people were speaking in a place where they had a right to speak, and their message was political. R.A.V., the cross burning case which began when some people broke up a chair and put it in the yard of an African American couple who had moved into the community, was different from Virginia v. Black, which was a political statement. The cross was full size or much larger. It was in a field where there was a group meeting, and that was a difference there.

And in R.A.V., two of the justices specifically said that the complaint that Justice Scalia and his majority opinion treated fighting words, of which they indicated hate speech was a subset – treating fighting words and hate speech as speech worthy of discussion when it wasn’t. And they both said that hate speech could be thrust outside the protection of the First Amendment, and that would not be a problem in the marketplace of a peer. They don’t deserve to be in the marketplace of ideas.

And so, there’s a lot. There are a lot of lines to cross. There’s a lot that’s going on here that makes it difficult. And I will tell you that in preparing for this meeting with you I went back and read the book, and there were so many places when I said, “This is how I should have done that. I should have done this a little bit differently.”

Nico: It’s always the case, isn’t it, when you write a book?

Wat Hopkins: Yeah.

Nico: As soon as it gets out there in the world, you go back and reread it and...

Wat Hopkins: It’s funny how things change from page proofs to the final publication. You know?

Nico: Yep.

Wat Hopkins: You don’t see them in the page proofs.

Nico: Wat, can you just move your microphone a little bit away from your mouth, maybe off to your left and right?

Wat Hopkins: Sure.

Nico: Because all we’re getting – Well, I’ll cut this out. So, no worries.

Wat Hopkins: Okay, how’s that?

Nico: Yeah. There’s just a little bit of popping when breath comes out of your mouth. It’s just picking up in the microphone. So, is what’s happening at the Supreme Court then, if your argument is that the Supreme Court has never directly confronted a hate speech case, is that they’re getting cases that involve speech that some might deem to be hateful. And it’s just being categorized as something different such as the intentional affliction of emotional distress or fighting words or disparagement.

Wat Hopkins: No. I don’t think they’re seeing any cases. There are cases that people have identified as hate speech cases. R.A.V. is one, and it comes close. But what the Court has done is the Court established a protocol for determining when speech could be deemed outside of First Amendment protection, and that protocol involved... The Court focused on speech that is narrowly drawn, narrowly defined, and historically has been outside of the protection of the First Amendment. And it found such speech as fighting words, obscenity, inciting the violent overthrow of the government.

All these are kinds of speech that historically there has been no problem. The Court said in Chaplinsky v. New Hampshire there has been no problem in moving these forms of speech outside of the First Amendment protection, and then has applied that test to some strange issues. Now, these aren’t involving hate speech, but these are involving cases. And this is what I did first: I looked at those cases in which the Supreme Court has ruled that certain categories of speech are or are not protected by the First Amendment.

And some of the early cases seemed to be easy – obscenity, for example, and fighting words. But later on the Court applied that historical test in strange ways. In a case called United States versus Stevens, the Court was dealing with videos that involved the torture and death of animals. It was a strange kind of thing. And the Court asked the question, the Court said that videos are not historically outside the protection of freedom – They didn’t deal with the issue of killing animals. They dealt with the technology. And so, the Court I don’t think knows what it’s doing when it comes to determining now whether speech should be protected or unprotected.

Nico: Well, let’s actually take a step back first, as you do in the book, and chart out the course of the First Amendment, which I think will help us explain how we got to this current moment. It wasn’t until the early 20th century that the First Amendment was even visited by the Supreme Court. Correct?

Wat Hopkins: Correct, 1919.

Nico: In a series of cases. And what did the court lay out as a test for determining what speech was protected and what speech was not, and how did that kind of develop over the course of the next 50 years?

Wat Hopkins: I’m not sure in the early cases they dealt with categories. But in the first case, Schenk versus United States in 1919, Justice Holmes writing for the court had some famous language in that case, but he ended up writing that speech was protected unless it exhibited a clear and present danger of harming society. And so, that was what you might call the first test. And so, the whole issue of what does Supreme Court mean – I’m sorry. The whole issue of what does the First Amendment mean was addressed there.

In the first case in which the Supreme Court dealt with the First Amendment, it said that it doesn’t mean what it says. Congress shall make no law abridging the freedom of speech or of the press. And what the court was that Congress can make some law, and that law first was the clear and present danger test. And the Court did so. A week after that test, the Court said it would be foolish for anyone to think that the First Amendment means anybody can say whatever they want anytime they want. Well, there are other problems with the First Amendment.

Under the First Amendment, the commonwealth of Virginia, where I live, can set up a censorship board and can ban certain books because the First Amendment doesn’t prohibit that, or it didn’t because the First Amendment only prohibited actions by Congress. Well, I couldn’t do that because when the First Amendment was passed, Virginia already had in its constitution that freedom of speech and freedom of the press were important. And of course, as you know, in 1925, the Supreme Court applied the prohibitions of the First Amendment to the states and said states can’t do it either, but that’s just kind of a quirk.

Shortly after Congress passed and the states passed the Bill of Rights, Congress passed a law making it a crime for us to criticize the President of the Congress. Congress made a law abridging speech. So, you have to deal with all of that first. But the point is, if you get to the point where you’re going to say now that there’s some category of speech that lies outside of the First Amendment, you have to have some methodology. You have to be able to define the speech, and you have to have a protocol for taking that action.

Nico: And that brings us up to 1942 in the Chaplinsky v. New Hampshire case, which seems to be central to the arguments you’re making in your book. And that’s a case that involved a Jehovah’s Witness who was arrested and prosecuted for calling a police officer, if I’m not mistaken, a fascist and a god-damn racketeer. And the Supreme Court upheld the conviction under a newly articulated exception to the First Amendment called “fighting words.” And in articulating that exception, the Supreme Court set out a new paradigm, essentially, for determining when speech falls out of First Amendment protection. Is that correct?

Wat Hopkins: Yes.

Nico: And it’s a kind of tripartite test here or paradigm, if I’m interpreting your book correctly. It says speech is presumed to be protected by the First Amendment. However, speech can be removed from that protection if it inflicts injury, incites a breach of the peace, or is no essential part of the exposition of ideas.

And the determination as to whether speech should be removed is based upon balancing whether the benefits outweigh the harm of the offensive speech. And that paradigm comes in part from Chaplinsky. But your perception is that the Supreme Court upheld the conviction in Chaplinsky, set out a paradigm for protecting free speech, but then kind of quickly abandoned it. And the fighting words doctrine has largely been a dead letter over the past half century or so.

Wat Hopkins: Yes, yes. I’m not sure that the Supreme Court quickly abandoned it, but it eventually did. And at least one other scholar takes the position that we are no longer at a place where social benefit is part of the test. Inciting violence or inciting an immediate breach of the peach, that’s still part of the test, but the question is whether the notion of speech that is not of social benefit is.

And that was the foundation of the Court’s first case involving obscenity in which Justice Brennan said that... He tied it to history. He said history demonstrates that the obscene material is utterly without redeeming social value or redeeming social importance. That was the whole basis of that test. But the Court seems to have gotten away from that test. One reviewer for the book said that I was enchanted or gave the impression that I liked the Chaplinsky ruling.

Nico: I will be honest, Professor Hopkins, that was kind of my impression coming away from the book as well.

Wat Hopkins: Another reason that maybe I need to do some rewriting. I think Chaplinsky was important because it set out the first test. Now, you can call the clear-and-present danger test a test, but it’s ambiguous. You can call the Roth test, utterly without redeeming social value, a test. And to some degree it is, but it’s not inclusive, and it too may be ambiguous. As you know, some years later, the Supreme Court came up with a three-part test to determine whether material was... But it all began – The first, if you wanna call it specific test, was Chaplinsky.

And I think Chaplinsky was important, but the Supreme Court didn’t seem to think so years later, because there is no other case in which the court ruled that case involved fighting words, or, if it did, the words did not rise to the point of whether they were criminal. But it’s important because it began that kind of –We actually needed a test. We need to be able to check off these things.

Nico: Well, what’s the test now that the Court uses to determine whether speech is protected or not?

Wat Hopkins: I’m not sure there is one, or, if there is, it varies greatly. The Court still likes the notion that a category of speech is not protected by the First Amendment unless historically the category of speech was not considered to be important. Historically, the category of speech could be exiled from the Constitution without doing harm to society. It wasn’t worth the protection.

And it used that test in United States versus Stevens, the Crush Video case. It involved videos in which people in strange ways were killing small animals. It used that test in Brown versus Entertainment Merchants, which had to do with regulations against violent videos for children. The test was: Are videos or violence, do they fit into one of those categories historically? And there were odd things about those opinions.

Nico: Well, I think where we’re at right now with the Supreme Court and its First Amendment jurisprudence – and you quote Genevieve Lakier, professor of law at the University of Chicago. It says that the Supreme Court is out of the business of creating or articulating, I should say, new exceptions to the First Amendment. And so, it seems to me that we’ve almost gotten to a place where the exceptions that were articulated up to the latter middle half of the 20th century were the exceptions, and then the Supreme Court just decided it wasn’t going to create exceptions anymore.

And to the extent that any different paradigm existed for testing whether speech was accepted by the First Amendment was abandoned, and they only fit it into the already narrowly drawn categories such as defamation, incitement to imminent lawless action, fighting words, obscenity, for example.

And so, one of the ways I read United States v. Stevens and Brown v. Entertainment Merchants Association – Stevens, of course, as you said, dealt with animal crush videos, and Brown dealt with violent video games which were being restricted under a statute that was passed in California that violent video games couldn’t be sold to minors – was that because violence wasn’t a previous exception to the First Amendment, it couldn’t be restricted.

So, for example, in the Brown decision, the court wrote, as in Stevens, California has tried to make violent speech regulation look like obscenity regulation. It also says, “Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking but only depictions of sexual conduct.” It also says, “Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity for minors that we upheld in Ginsberg.

So, it seems the Court’s essentially saying we have never previously articulated a violence exception to the First Amendment. That is violence cannot be obscene. Therefore, this statute does not fall within one of the narrow categories accepted by the First Amendment. Is that right?

Wat Hopkins: I don’t know. I’m not sure I follow you. That could be right. Justice Kennedy, I believe it was, in one of those cases – I don’t know if it was Stevens or Brown. But Justice Kennedy said there might be some categories of speech that are not worthy of First Amendment protection that have not been enunciated, have not been discussed, but this particular case doesn’t fall there. And it was also following the Stevens case. It was deemed Sullivan... I’m sorry. I forget her first name who at –

Nico: Oh, Kathleen Sullivan from Stanford?

Wat Hopkins: Yes, yes. Who said something very similar to that. She said the Supreme Court is out of the business of dealing with categories of speech. So, get over it.

Nico: Oh, I said it was Genevieve Lakier. It’s probably Kathleen Sullivan. I’m just misremembering from your book.

Wat Hopkins: Yeah. I did also quote Lakier several places in some of the things.

Nico: That’s why I’m confusing it. Yeah.

Wat Hopkins: The problem is, as Lakier, I believe it was, said, we no longer have any way of knowing how to deal with these issues because we’re moving into new territory. How are you going to deal with historical categories of speech when we’re dealing with hate speech on the internet, and we’re dealing with something that nobody knows how to deal with. Every once in a while, I’ll reread Reno v. ACLU because I am so... I chuckle at the naivete of the Court because it was their first case. But then you move on to Packingham versus North Carolina, and you get a Court who speaks very highly of the internet.

Well, how are you going to deal with issues there? Is there a test? Is there a protocol? And that’s where I left it. I don’t know how the Court’s going to deal with this. When Stevens was decided, there were five members of the Court who were no longer on the Court. And so, would the new Court deal with that differently? Stevens is the case that I find the most puzzling because my pedestrian mind, I don’t see anything of social value with the content of that material. If I haven’t answered your question, maybe you can just –

Nico: No, no, no, you have. I guess what I was trying to get at with the Stevens and Brown conclusion was that they argued that the statues were constitutional because the speech at issue was obscene, but the Supreme Court has never articulated that obscenity involves anything other than sexual conduct, I guess is what I’m trying to say. And so, that’s why it didn’t reach the constitutionality of the statute at issue in Stevens and Brown.

So, it would have had to essentially articulate a new category of speech that could be deemed obscene, and that would be violent speech. And the Supreme Court, as Kathleen Sullivan said, is out of the business of creating new exceptions or, in this case, widening the categories of speech that could be deemed obscene.

Wat Hopkins: And the other issue coming up here, I think it’s in Stevens. I think that the government made a strong argument in establishing a balancing test. And the government – and if it was not in Stevens – I think it was in Stevens – used Supreme Court precedent to make its case. And these are the things the Court has said, and we would like to attach those and use those.

And Justice Roberts dismissed them out of hand, and he said, “These might be examples, but they’re certainly not tests.” When reading them for the first time, you would think they sound like tests. And I can’t think of an example, but I think it was in Stevens when Justice Roberts called the balancing test suggested by the government startling and dangerous.

Nico: Well, to get to the crux of the argument of your book, it said taken this history and the test that was articulated in Chaplinsky and some of the cases thereafter, hate speech can be found to be an exception of the First Amendment in part because it inflicts injury and, you argue, is no essential part of any exposition of ideas. The Supreme Court hasn’t accepted this argument, at least not in the last 50 years. So, to get there, it would need to reinvigorate the Chaplinsky test in your view.

Wat Hopkins: I think I wouldn’t advocate that because I don’t think that’s gonna happen. I don’t think... I think –

Nico: But you do think hate speech creates a harm.

Wat Hopkins: Yes.

Nico: That normatively should be addressed by the Court in the same way it addresses harm caused by defamation, for examples.

Wat Hopkins: Yes, I do. And I think that’s the next place I’m going as to: How can the Court do that if the Court is willing? I’m not sure we know right now where these justices stand on some of these important issues. I just finished a paper that deals with: How is this court going to deal with actual malice and the rule, as you know, that has to do with public officials and public figures in libel law? And we’ve got a case that the Court might think is interesting. It’s still at the Second Circuit, and that’s Palin versus New York Times.

It’s the second time it’s been to the Second Circuit, and the circuit now is going to decide whether the ruling below is good, the ruling in which the judge denied a new trial, or should Sarah Palin have a new trial. And if you look at that case, there are similarities. I’m getting off the subject. There’s similarities between it and the famous New York Times versus Sullivan case. So, I deal with that, but I’m not sure how to deal where on the broader issues the Justices Gorsuch and Kavanaugh and...

Nico: Brown Jackson.

Wat Hopkins: Brown Jackson and Barrett deal with issues. That’d be a lot of work.

Nico: Well, I think the central challenge is defining what hate speech is. At the top of this conversation, we reviewed some of the Supreme Court’s past cases that dealt with issues, you might not say involving hate speech, but that are at least hate speech adjacent, right, in the burning of crosses, the protesting of dead funerals with signs that says things like, “God hates fags,” Matal v. Tam which dealt with the attempt to trademark a disparaging word – in this case, “slants” disparaging against Asians or allegedly disparaging against Asians.

You have the National Socialist Party v. Village of Skokie, which dealt with Nazis walking around with swastikas on their arms. But you had mentioned at the top that a lot of these cases dealt with political speech, which you wouldn’t see defined under a broader hate speech category. So, how would you define hate speech?

Wat Hopkins: Hate speech is speech that is intended to do nothing but harm or cause violence. There is an absence of a political message. I’m not saying that the speaker does not have a political motive, but it’s not expressed as part of the hate speech. The intent is to harm, and it does in fact harm, and it is without, I think, social value. Maybe this is what the reviewer was talking about. I’m still holding on to that social value. I make the point that, for First Amendment purposes, the First Amendment protects ideas. But for First Amendment purposes, hate speech doesn’t constitute ideas. And I thought you were gonna ask me about that, because that’s going way out on a limb. I mean you can make –

Nico: That’s kind of where I’m getting. That’s kind of where I’m going.

Wat Hopkins: You can make the argument that hate speech has to constitute ideas. I take the position that, in the Court’s rulings and in the Court’s use of the word “ideas” and how it applies that word, and the way that – And we haven’t Alexander Meiklejohn, who I write about. The way he defines ideas, hate speech does not constitute ideas for First Amendment purposes, and that has to do with context, wholly with context. In what context? Whenever you’re dealing with ideas and the protection for ideas, we’re dealing about intent to raise issues that are important or are at least debatable.

Nico: Important for what, right? Alexander Meiklejohn, this is a famous First Amendment scholar from the 20th century. His argue is ideas essential and necessary for self-government. Right?

Wat Hopkins: Yes.

Nico: And this was picked up by Brennan in the famous New York Times v. Sullivan case.

Wat Hopkins: Yes. And he has an expansive definition of self-government. It has to do with education, the arts, sciences, those kinds of things are all incorporated here. Hate speech is not an idea because it does not intend to raise the issue of debate or discussion but only to raise the issue of violence and harm.

Nico: Yeah, go ahead.

Wat Hopkins: Go ahead. No, you go ahead.

Nico: No. And I guess this is where, if we take it at face value that what the First Amendment must protect or the speech that’s core under the First Amendment and needs to be protected is that speech which is essential for self-government. I do think that hate speech is essential for self-government insofar as it’s important to know what people actually believe. We have a number of theories justifying the First Amendment. You have the marketplace theory, which has fallen out of favor, the idea that who knew truth to be worse off in a free and open encounter, going all the way back to John Milton. Let ideas clash, essentially.

I tend to think that that theory holds up in the long term, although in the short term I think truth can lose out to falsity. But I can understand why people do not like the marketplace theory because of all the short-term losses that truth tends to face. There’s also the argument for self-government, articulated by Alexander Meiklejohn and Brennan in New York Times v. Sullivan. There’s also just individual autonomy as one government. And so, the government shouldn’t abridge freedom of speech and thought because we are autonomous individuals in the sanctity of conscience can’t be breached.

But we at FIRE tend to advocate what our president and CEO, Greg Lukianoff, calls the lab in the looking glass theory or the informational theory of free speech, which is it’s important to know the world as it actually is. It’s important to know if people harbor hateful thoughts, because if you don’t know that people harbor those hateful thoughts, they can’t be addressed society and self-government. Our cofounder, Harvey Silverglate, says, “I wanna know who the Nazi is in the room, so I know not to turn my back to them,” for example.

And you do acknowledge these points. On Page 76 of your book, you say, “Is there some value in knowing that a speaker possesses such hatred towards an individual or group or people, that hearing his venomous outpouring is in fact of value? Is it valuable to know that such feelings exist in society, that there is a possibility, indeed a likelihood, that others feel the same way? Do not such verbal attacks contain messages? Would the hate from which they grow be understood otherwise? Is such speech required to signal society that these feelings and what they promote must be fought?”

It reminds me of an analogy that Jonathan Rauch, who wrote the book Kindly Inquisitors about freedom of speech, said that censorship is like breaking the thermometer. You might not know what the temperature is anymore, but it doesn't change the temperature. So, is this idea of self-governance and what speech is essential to self-governance exclude the value of knowing what people actually think? Because you raise these questions, but you never actually answer them.

Wat Hopkins: Yeah, I do. You noticed that, huh? I think that we know those things about people. We can know those things about people without the harm that results from hate speech. I think it will come out. Hate speech is aimed at individuals, and the hate speech involves harm. And I’m not sure what that says about what else someone might believe. I think there are other ways of knowing those same kinds of things. Just like the argument of the marketplace of ideas, Jerome Barron, wonderful First Amendment scholar, said if there ever was a marketplace of ideas, it doesn’t exist anymore. And he’s right.

However, if you look at the rulings of the Supreme Court, every time the Supreme Court calls upon the marketplace of ideas, it rules in favor of speech. So, the metaphor is important, even though the actual marketplace – There are lots of problems with the marketplace of ideas. The key problem is there’s usually not time for there to be countervailing speech. I’m still struggling with that idea that we were talking about, and I’m not sure how I’m gonna come out on it.

But still, I think I know who the Nazi is in the room, even if he doesn’t – And I’m not Jewish. But even if he doesn’t attack me because of my heritage, my Judaism, I think there are other ways that I’m gonna know that, other messages that are going to be expressed by the same person without the resulting harm aimed at an individual or a group.

Nico: Well, you might. You might know that this person harbors those beliefs, or you might not. It depends on how often they speak and how they carry themselves, or if the only way they’re manifesting those beliefs is in ways that you might categorize as hate speech. But let’s take, for example just for purposes of argument, that hate speech is not essential to self-government, and therefore wouldn’t meet Alexander Meiklejohn’s conception of the First Amendment or Brennan’s conception of what the First Amendment is supposed to protect. You still then have the definition problem. Right?

Wat Hopkins: Yeah.

Nico: People would need to have a reasonable knowledge of speech that’s excluded from First Amendment protection so that they don’t fall within one of these exceptions and then possibly be prosecuted and then convicted under it. And I think that’s... If I have two core disagreements with your book, it’s on that first question about the value of hate speech to self-government. And then the second one is just the definitional one. Because in your book, at least as far as I can tell, you don’t cite any examples of what might constitute hate speech.

So, it’s hard then to falsify the claim that speech that is political of nature but might also be hateful would still be protected. Right? So, when we were talking at the top, you said a lot of these examples in some of these cases involved hateful but political speech. So, what would be a hateful message that would injure that would not be political in nature and then therefore could fall under a hate speech exception to the First Amendment?

Wat Hopkins: If you try to find examples in the literature, it’s hard to find. They are hard to find. I looked, and I had trouble. And there is a problem when you are trying to separate hate speech from true threats, for example, or intimidating speech, for example. How do you tell the difference when an individual uses the N-word in attacking another individual? They begin with a debate about someone, and then you end up using that word.

How do you determine whether that is hate speech? I think in some circumstances, yes. I think some examples are easier. We’ve talked R.A.V. and Virginia v. Black. And in R.A.V., the cross was burned in the yard of an African American family by a group of juveniles. It wasn’t much of a cross. It was a broken-down chair. And I think that’s clearly intimidation. I think that is a form of hate speech because it scars.

Nico: As opposed to Virginia v. Black, where the cross was burned outside the property?

Wat Hopkins: Yeah. And I’ll call upon the argument that the solicitor general of Virginia used in his oral arguments in Virginia v. Black, which I thought was one of the most powerful arguments that were there. And as you know, Rob Smolla’s argued for the KKK group. And what the solicitor general said was one of the issues with hate speech is the lingering threat. You put a cross in someone’s yard. You set it aflame. And then most often, what do the assailants do? They run away. But what does the cross say? In addition to the immediate message of a burning cross in your yard, what does it say to you? It says, “I know where you live.” It says, “I can come back.”

And that’s what makes that different from the cross that was burned in an open field at a KKK rally in Carroll County, Virginia, which was in many ways not a threat, I suspect. And the facts show that people driving by were upset by it. People sitting on the porch in the house across the road were upset by it, but it was primarily a political message, obnoxious and hateful, certainly, but still it had politics. And one of the things I’m gonna keep looking at is this definition. I can think of examples, but just about all the examples, they’re specious. I’m not sure, if they were buckets, how they would hold water.

Nico: Do you need a hate speech exception necessarily? Why don’t the intimidation or incitement to imminent lawless action exceptions do much if not most of the work of a hate speech exception without resting in the same way on viewpoint that a hate speech exception would?

Wat Hopkins: That’s a good point, and I don’t know. This began with me asking the questions of: Could there be? And I stumbled on two things, and you’ve caught them both. One was the definition, and one was my argument that hate speech does not constitute ideas. And I’ve written down several things about that, and I still hold to that opinion, but it gets beyond, I think, a legal argument to maybe an emotional argument. And I still wonder if we really want to adopt a position whereby we’re going to allow people to be harmed because we think that the harm comes from free speech.

Nico: Well, I think the concern that a lot of free speech advocates have, including Nadine Strossen, who wrote a book, HATE: Why We Should Resist It with Free Speech, Not Censorship. I’m sure you’re familiar with the book. It’s that articulating the hate speech exception that does not result in abuses is next to impossible. So, for example, she goes Congresswoman Eleanor Holmes Norton, who used to be an ACLU attorney, who said, “It is technically impossible to write an anti-speech code that cannot be twisted against speech nobody means to bar. It has been tried and tried and tried.”

And one of the reasons that I come to this hate speech exception with some skepticism is just how we see these hate speech codes on campus be used by those in authority. So, for example, there was an issue at Emerson College in Boston in 2021, where a group of students handed out stickers that said, “China kind of sus.” And “sus” is kid slang for suspicious, essentially. This was at the height of COVID when there were a lot of arguments that criticisms of China or arguments in favor of COVID leaking from a lab were alleged to be racist or biased.

And the president of Emerson College wrote a letter to the whole college community accusing the student group that distributed the sticker of, “anti-Asian bigotry and hate,” and suspended the student group, in this case for handing out a sticker that was political but was intuited by some to be discriminatory. And then, of course, you have the University of Michigan in the 1980s, which passed one of the nation's early hate speech codes to address a rise in racist incidents against black students, and its first application was to a black student.

A federal court, of course, later struck that down. One of the precipitating incidents for FIRE was the infamous 1993 water buffalo case at the University of Pennsylvania where you had a Yiddish-speaking Israeli student, Eden Jacobowitz, who heard a ruckus outside his dorm room and yelled, “Shut up, you water buffalo.” The group of students making the ruckus outside of his dorm room – it was dark – happened to be black sorority sisters. So, he was brought up under a hate speech code there.

It turns out water buffalo, not native to Africa, and it’s actually a rough translation of the Yiddish word “behema,” which means loud and unruly person. And then just to put a fine point on it, Ira Glass or the former executive director of the ACLUE, a mentor of mine, here of mine, talks about how in the 1970s in England, the National Union of Students succeeded in getting a hate speech code passed to ban hate speech on college campuses.

And one of the student groups who supported it was a Zionist student organization. And it turns out that a few years later, the same student association that banned hate speech applied that code to the Zionist student association because it came to believe that Zionism was a form of racism. So, just the way we see these codes play out is that they’re used to go after speech that those in power don’t like, and that’s kind of the story of obscenity, too. If you look at Lady Chatterley’s Lover or Ulysses or “Howl” or – what was it – Walt Whitman’s...

Wat Hopkins: Leaves of Grass.

Nico: Leaves of Grass, right. It’s just when you have these definitional problems, they’re ripe for abuse. And what ends up getting prosecuted or banned or punished or censored just ends up being speech that those in power don’t like.

Wat Hopkins: Yes. And these are things I’ve struggled with. And I thought a lot about one of my heroes, William Brennan. He wrote the majority opinion in Roth versus United States. It was the first First Amendment opinion he wrote on the Court. And of course, he said obscenity is utterly without redeeming social value. When Miller v. California came along, in a companion case to Miller, he wrote a dissenting opinion.

And basically, in his dissenting opinion, he said it can’t be defined. If it can’t be defined, it can’t be punished. And Justice Brennan was Roman Catholic, and Justice Brennan hated pornography, but he hit the point there. And so, what you’re arguing is – Let me say, is it possible? Would it be possible for...? And you’re talking about over breadth here, right?

Nico: Sure.

Wat Hopkins: You get a law that not only covers what the law is intending to cover, but it goes beyond that. And we are in the midst of such problems. Right here at Virginia Tech, we’ve got a problem that the Court just denied cert that had to do with two codes here at Virginia Tech, which I don’t think are as problematic as some others.

And with the issues in Gaza and other places, we have to be very careful because many people who are First Amendment – And you might put me in this category. I hope not. Many people who are First Amendment advocates, who believe strongly in the First Amendment, change their minds when something confronts them or someone close to them. You mentioned Skokie a couple of times and the AC –

Nico: Yeah. How would that case fit into your framework?

Wat Hopkins: Yeah. the ACLU lost many members when it defended Skokie. And just like right now, it’s being confronted by people who have complained that the ACLU will no longer defend the NRA in certain circumstances. The Skokie case I would not categorize as a hate speech case. Sometimes, my students ask me about censorship, and I will say, “I’ve got no problems with censorship as long as I’m the censor. But if anybody else is, then we’ve got problems.” Because basically, what the appellate court held was it was not considered fighting words because this was a march, a public march and, if you wanted to avoid it, you could. Now, the other side of that argument –

Nico: In a way, for example, like an R.A.V., where the cross is burned on their front lawn.

Wat Hopkins: Exactly.

Nico: And you can’t avoid that. Right?

Wat Hopkins: Right.

Nico: But I think you could get after that with an intimidation statute or a trespassing statute, and you don’t actually need a hate speech statute that would necessarily be viewpoint discriminatory.

Wat Hopkins: Yes, right. Well, the –

Nico: And I think that was actually the holding, too, in R.A.V. Right? They held that this statute, because of its viewpoint and discriminatory nature was unconstitutional, but this is conduct that essentially could be punished under a number of other statutes that the city of St. Paul had.

Wat Hopkins: Yes, yes. And your point about intimidation, intimidating speech has always been protected by the First Amendment. You go back to Claiborne Hardware case, in which speech was intimidating. And it changed a little bit with Virginia v. Black and Justice O’Connor’s opinion in Virginia v. Black saying that cross burning was a form of threatening speech. And cross burning, when it is intimidating, is not protected. Well, did Justice O’Connor intend to create a new category of speech that is not protected, and that is intimidating speech. And I once asked... and I forget her name. She’s at the University of Utah and has just written a couple of magnificent tracts on the press and how it’s considered...

Nico: I can’t. I could help you Kathleen Sullivan. I probably would recognize this name if I heard it.

Wat Hopkins: You would. You would.

Nico: But it’s not coming to me.

Wat Hopkins: She’s at the University of Utah, and I can see her. And she would be so offended if she knew I couldn’t remember her name. Anyway, she was a clerk for Justice O’Connor. And I asked her once, did Justice O’Connor create a new category of speech that’s not protected, that is, intimidating speech? And she said, “Well, I think she might have, but I don’t think she meant to.”

Nico: Well, this sort of intention angle on speech was brought up in the Counterman case as well.

Wat Hopkins: Yeah. You can’t threaten someone by accident.

Nico: Yeah. You have to intend to do something. And if you intend to put someone in fear of imminent bodily harm or danger, in this case, you could argue that’s speech.

Wat Hopkins: Yes.

Nico: Or you could argue it’s intimidation. And what you’re saying right now is that if you intend to put someone in fear of imminent bodily harm or danger, that that’s not currently articulated as an exception to the First Amendment?

Wat Hopkins: I’m sorry. Say that again.

Nico: What you’re saying right now is that intending to put someone in fear of imminent bodily harm or danger is not an exception to the First –

Wat Hopkins: Correct.

Nico: A euphemism for that could be intimidation. Right?

Wat Hopkins: Yes, yes.

Nico: But the Supreme Court hasn’t squarely answered the question.

Wat Hopkins: Correct, right.

Nico: I mean that was kind of the argument in the Skokie case as well is that you had the 6,000 Holocaust survivors in the town of Skokie who felt sincerely that they were at risk of imminent bodily harm or danger if the Nazis were allowed to rally in their town wearing swastikas, and they had that feeling for good reason. Right? They’d seen Nazis rally with swastikas on their arms before, and they were seriously harmed as a result of it. They were put in situations in which they were injured, and many of their family members were even killed. But Nazi speech advocating for a Nazi regime in the United States is also political, too. Right?

Wat Hopkins: Yes.

Nico: So, much in the same way you couldn’t have in Virginia v. Black cross burning be prima facie evidence of intimidation, you can’t also have a swastika be prima facie evidence of intimidation or an intent to harm either. I’m just speaking aloud here as I try to unpack it with you.

Wat Hopkins: Right.

Nico: But you wouldn’t say that the speech at issue in Skokie would fall under a hate speech statute necessarily, generally speaking.

Wat Hopkins: No, I don’t think – It’s hateful, and the location was very much picked because of the makeup of the population of the city, but the distance there makes it different, and the fact that it can be avoided makes it different. Now, on the other side of the coin, you’re asking me to stay off of the street in which I live because someone else is doing something. I understand that. Part of the ticklish issues here.

Nico: So, would an example of hate speech that would be precluded under the test you’re advocating for here be the yelling of a racial epithet like the N-word out a car at a black person as you’re passing by?

Wat Hopkins: It’s hate speech. I don’t know that I can do anything else with that. I don’t know if that is an exception to the exception.

Nico: So, where do we go from here, Wat?

Wat Hopkins: I think what we’ve done today is about as far as we can go.

Nico: You don’t see an appetite on the Supreme Court to create an exception to the First Amendment for hate speech at the current moment, do you?

Wat Hopkins: No, no. No. The only direction I’m going there is that in the last – Stevens, in which, get over it. There’re not gonna be any more exceptions. Since then, there are five new members of the court. And the question would be: Would there be four of those nine members who saw a case in which this issue, this question was specifically posed, be interested in resolving that question? And I don’t know enough about those new members of the court to be able to answer that question.

Nico: Well, I don’t know. Going even further back than Stevens, when was the last time the Supreme Court articulated a new exception to the First Amendment that hadn’t been articulated before? I think we’re talking maybe a half a century.

Wat Hopkins: Oh, excuse me. Let me look and see what I’ve got.

Nico: Yeah. The fact that it’s just not coming immediately to mind for us...

Wat Hopkins: Exactly.

Nico: Is just an indication of how the trajectory of the First Amendment has been ever expanding, expanding to protect ever more speech for probably the better part of a half a century.

Wat Hopkins: Yeah. It’s not really on point because it’s a special issue, but you’ve got Watts and the true threats.

Nico: Sure, but that was during Lyndon Johnson’s presidency. Right?

Wat Hopkins: Yeah.

Nico: I forget the exact speech at issue, but it was alleged to have been threatening of President Johnson, but the Court said that it didn’t meet the test [inaudible – crosstalk] [01:06:05].

Wat Hopkins: Right. This was a group. There was a rally on the Washington Mall. And he said to a group of people, “If they ever draft me and put a gun in my hands, the first person I would want to see would be Lyndon Johnson.” LBJ, I think is what he said. You’re right. And that would be the last one, I think. Yeah.

Nico: So, where we’re at right now is we probably don’t have a court that will articulate a new hate speech exception to the First Amendment, but you think that broadly the Supreme Court should adopt a paradigm that is more consistent than you see it having been in the last however many decades. And you do think such a paradigm could and should accept hate speech.

Wat Hopkins: Yes, I think that would be helpful. Right.

Nico: Well, Professor Hopkins, I think we’re gonna leave it there. That was a lot of fun.

Wat Hopkins: Ronnell. Her first name is Ronnell.

Nico: Ronnell from Utah.

Wat Hopkins: Yeah, Ronnell.

Nico: Yeah, that’s not ringing a bell for me.

Wat Hopkins: Okay.

Nico: And if I heard the last name, it might ring a bell for me.

Wat Hopkins: Yeah, okay.

Nico: But it’s always good. In the First Amendment community, it’s almost adopted as dogma that hate speech isn’t an exception and shouldn’t be an exception to the First Amendment, and it’s always important to examine first principles. And I want to thank you then for writing this book Hate Speech is Not Free, the Case Against First Amendment Protection. Professor Hopkins, thanks for coming on the show.

Wat Hopkins: Thank you so much for asking me. This has been a lot of fun for me.

Nico: That was Professor Wat Hopkins, and the book again is Hate Speech is Not Free, the Case Against First Amendment Protection. I am Nico Perrino, and this podcast is produced by myself and Sam Niederholzer. It’s edited by a rotating roster of our FIRE colleagues, including Erin Rhys, Chris Molpie, and Sam. To learn more about “So To Speak,” you can subscribe to our YouTube channel which features a video of this and other conversations, and we’re also on most of the social media channels.

We’re most active on X and Facebook where you can also watch these and other conversations. If you have feedback about this show, they can be sent – the feedback, I should say, can be sent to sotospeak@thefire.org. If you enjoyed this episode, I would ask you to please leave us a review on Apple Podcasts or Google Play or wherever else you get your podcast reviews. Help us attract new listeners to the show. And until next time, I thank you all again for listening.