Hate Speech and the Constitution

Glenn Harlan Reynolds at USA Today:

In First Amendment law, the term “hate speech” is meaningless. All speech is equally protected whether it’s hateful or cheerful. It doesn’t matter if it’s racist, sexist or in poor taste, unless speech falls into a few very narrow categories — like “true threats,” which have to address a specific individual, or “incitement,” which must constitute an immediate and intentional encouragement to imminent lawless action — it’s protected.

The term “hate speech” was invented by people who don’t like that freedom, and who want to give the — completely false — impression that there’s a kind of speech that the First Amendment doesn’t protect because it’s hateful. What they mean by “hateful,” it seems, is really just that it’s speech they don’t agree with. Some even try to argue that since hearing disagreeable ideas is unpleasant, expressing those ideas is somehow an act of “violence.”

There are two problems with that argument. The first is that it’s idiotic: That’s never been the law, nor could it be if we give any value to free expression, because there’s no idea that somebody doesn’t disagree with. The second is that the argument is usually made by people who spend a lot of time expressing disagreeable ideas themselves, without, apparently, the least thought that if their own rules about disagreeable speech held sway, they’d probably be locked up first. (As Twitter wag IowaHawk has offered: “I'll let you ban hate speech when you let me define it. Deal?”)