Ken White on free speech and hate speech

Ken White, who’s identified as “a 1st Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles” writes a lot at the legal website Popehat. One of his pet issues is freedom of speech, and I call your attention to his new piece in the Los Angeles Times, “Actually, hate speech is protected speech.” It’s a good piece and gives the proper legal responses to six comments that are often in the air from the authoritarian wing of our Left. I’ll show White’s responses to three particularly pernicious tropes (indented):

  • “Not all speech is protected. There are limits to free speech.”

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the 1st Amendment “well-defined and narrowly limited.” They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. It’s a non sequitur.

  • “You can’t shout ‘Fire!’ in a crowded theater”


  • “Hate speech is not free speech”

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.

  • “We must balance free speech and other interests”
  • “‘Fighting words’ are not protected under the First Amendment”
  • “Maybe this speech is protected now, but the law is always changing.”

The Supreme Court’s approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving towards more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court — like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals — have yielded solid 8-to-1 majorities in favor of protecting speech. There’s no sign of a growing appetite for censorship on the court.

I’m not sure how torture of animals can be construed as “free speech”, even as artistic expression, unless it doesn’t violate animal-protection laws.

Go read the piece to see the legal take on the other three statements.

h/t: Grania


  1. Randy schenck
    Posted June 12, 2017 at 9:17 am | Permalink

    Good to remember his comment – the law is always changing. I have always liked the opinion given long ago by someone, Think of the first amendment as a restriction on government, not incitement to the people.

    • Posted June 12, 2017 at 9:52 am | Permalink

      Any relation?

      • Randy schenck
        Posted June 12, 2017 at 10:01 am | Permalink

        No. Not a relation far as I know.

      • Randy schenck
        Posted June 12, 2017 at 10:29 am | Permalink

        I did notice in White’s article he misspelled Schenck (Shenck). Happens all the time.

  2. Posted June 12, 2017 at 9:50 am | Permalink

    Here’s the fire-in-a-theater quote in full:

    “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

    It’s from Schenck v. United States (1919), which is actually a terrible ruling, still in force, against free speech. Also from Schenck:

    “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

    • Ken Kukec
      Posted June 12, 2017 at 10:31 am | Permalink

      Although Schenck has never been expressly overruled, it’s value as precedent has been entirely eroded by subsequent case law, most notably Brandenburg v. Ohio. Indeed, under the influence of Justice Louis Brandeis, Justice Holmes himself abandoned the reasoning of Schenck a few years later. See Whitney v. California. Schenck is no longer considered good law.

      • Ken Kukec
        Posted June 12, 2017 at 10:32 am | Permalink


      • BJ
        Posted June 12, 2017 at 10:52 am | Permalink

        Exactly. For the purposes of the courts, Schenk is essentially no longer useful nor precedent, and is widely seen as one of the worst rulings on free speech in the 20th century. It holds no water today, and there is certainly no reason to remember its quotes unless as examples of what *not* to say in an argument against someone who is actually familiar with the law and various free speech rulings.

        • Randy schenck
          Posted June 12, 2017 at 11:52 am | Permalink

          ck, another common misspelling.

      • Posted June 12, 2017 at 3:35 pm | Permalink

        Good to know.

    • Posted June 12, 2017 at 12:35 pm | Permalink

      Ironically, SJWs are almost literally ‘shouting “Fire!” in a theatre’ when they disrupt speakers by setting off fire alarms.

      Not only does this put those present at risk, it puts the lives of other people at risk when fire crew are wasting time attending hoax calls.

      • Zach
        Posted June 12, 2017 at 12:56 pm | Permalink

        Fire has a long history as an incidental tool of oppression. While it has always afflicted the homes of the disenfranchised more readily, anti-fire services respond to it according to the privilege of its victims. Thus, combustion provides another avenue whereby systemic inequalities are perpetuated. Pulling a fire alarm in the absence of a fire is a necessary act if doing so addresses those inequalities. /s

        • BJ
          Posted June 12, 2017 at 4:08 pm | Permalink

          Beautiful. Bravo!

        • Ken Kukec
          Posted June 12, 2017 at 5:19 pm | Permalink

          That was certainly the case with the “volunteer” fire departments that were common in 19th century urban America — particularly in the Tammany Hall days of New York under Boss Tweed.

          • Zach
            Posted June 13, 2017 at 10:49 pm | Permalink


            I kept thinking of that scene from Gangs of New York while writing that paragraph. Like all SJW talking points, it is grounded in some truth.

  3. J. Quinton
    Posted June 12, 2017 at 9:53 am | Permalink

    People wanting to ban free speech for ideas they disagree with is the reason we have free speech in the first place.

    When no one wants to ban any sort of speech is the day when free speech laws will no longer be needed.

    • Posted June 12, 2017 at 11:04 am | Permalink

      Indeed. The only speech that requires the protection of the 1st Amendment (in the USA) is that speech that we don’t like or agree with.

      Obviously, speech we like won’t be restricted.

      To me, this is the most basic point about free speech protection and many censorship advocates miss it.

      • Dan
        Posted June 12, 2017 at 9:04 pm | Permalink

        In all countries, even the most oppressive dictatorships, they do not silence speech that the powers-that-be agree with. Saying “Death to America” in Iran will get a passing nod, but criticizing the Ayatollah could get you jailed.

        The only useful freedom of speech is to protect disagreeable speech.

  4. Desnes Diev
    Posted June 12, 2017 at 9:55 am | Permalink

    “Some of the most controversial and unpopular speech to come before the court — like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals — have yielded solid 8-to-1 majorities in favor of protecting speech.”

    How could videos showing animals (including human?) being tortured can be labeled “speech” at all? Is there an opinion emitted behind such things… otherwise than “I am a sadistic psycho”?

    • Posted June 12, 2017 at 10:06 am | Permalink

      My first reaction too, but I’m guessing they were being shown by animal rights activists to expose animal cruelty. Please be true.

      • Desnes Diev
        Posted June 12, 2017 at 11:28 am | Permalink

        I didn’t thought of that possibility. That would be a (sad but) possible justification for such videos.

        Thanks also to jblilie for the explanation.

    • Posted June 12, 2017 at 10:30 am | Permalink

      Pretty much all forms of expression: Written words, spoken words, recorded words, videos, artwork in all its forms, music, photos, etc., etc. is considered expression (speech).

      Even political advertisements and money contributions by large corporations (who are also considered “persons” by the law of the USA).

      • Posted June 12, 2017 at 10:42 am | Permalink

        Political adverts accepted, but giving people money? If transferring funds to individuals or organisations is considered to be expression and hence speech, then punching Donald Trump in the face, being a form of expression, must be considered to be free speech.

        • BJ
          Posted June 12, 2017 at 10:53 am | Permalink

          No, that already falls under assault and battery.

        • BJ
          Posted June 12, 2017 at 10:55 am | Permalink

          And it’s only political donations. You cannot give transfer over $9,999 to any individual without filling out special forms and making the government aware of it.

          • Posted June 12, 2017 at 11:02 am | Permalink

            True, but you only have to inform. You can still give the money (the recipient is liable to taxes on it).

          • Ken Kukec
            Posted June 12, 2017 at 11:34 am | Permalink

            Those forms apply solely to cash transactions, and only where the transfer is done pursuant to some type of business transaction. They’re called “currency transaction reports” (CTRs). There’s no report requirement for transactions like checks or wire transfers that leave their own paper trail. And the reporting requirement does not extend to cash transfers between private citizens for entirely personal reasons.

            • Randy schenck
              Posted June 12, 2017 at 11:55 am | Permalink

              Yes, I believe if the gift tax law is applied you can give something like $13,000 to another person and no tax is required.

              • Posted June 12, 2017 at 3:38 pm | Permalink

                t least, according to my attorney, in re money gifts to your children, you can give each one up to $13,000 a year without having to inform the IRS.

              • BJ
                Posted June 12, 2017 at 4:11 pm | Permalink

                It’s gone up? Huh. Now I can put my devious plans in motion. *rubs hands together in a sinister manner*

            • BJ
              Posted June 12, 2017 at 4:10 pm | Permalink

              Yes, but the ultimate point is that the other types have paper trails, and therefore don’t need to be registered, as they’re already registered elsewhere and, if an investigation is ever instigated against the individual(s) involved, the evidence will be there.

              Politicians can’t accept gifts of cash anyway, and have to register all gifts, be they physical objects or free services, on their forms every year. Not doing so is an easy way to end up on the “This Guy Needs to be Investigated by a Task Force Yesterday List.”

    • Adam M.
      Posted June 12, 2017 at 12:11 pm | Permalink

      I’m pretty sure it refers to a case where a man was charged with animal cruelty for operating a dog-fighting ring and also for selling DVDs. The conviction for the DVD sales was overturned on 1st Amendment grounds, but if course he still was punished for the animal cruelty.

      • Aelfric
        Posted June 12, 2017 at 3:17 pm | Permalink

        Sadly, the videos referenced were decidedly prurient and awful. I don’t even want to go in to a description.

  5. Posted June 12, 2017 at 10:01 am | Permalink

    Brandenberg v. Ohio (1969), set a very high bar for declaring speech an incitement to violence or sedition, requiring that it not be vague but rather pose an imminent threat.

  6. Posted June 12, 2017 at 10:04 am | Permalink

    We have a contradiction in the US, where hate speech is not a crime, yet hate think is punishable by the extra penalties of hate crime laws.

    • Posted June 12, 2017 at 10:34 am | Permalink

      Yes, when considered as motive in consideration of the likelihood of re-offense.

      From the wikiness:

      In R.A.V. v. City of St. Paul, (1992), the issue of banning hate speech arose again when a gang of white people burned a cross in the front yard of a black family. The local ordinance in St. Paul, Minnesota, criminalized such expressions considered racist and the teenager was charged thereunder. Associate Justice Antonin Scalia, writing for the Supreme Court, held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The Supreme Court struck down the ordinance. Scalia explicated the fighting words exception as follows: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”. Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, the Supreme Court embraced the idea that speech in general is permissible unless it will lead to imminent violence. The opinion noted “This conduct, if proved, might well have violated various Minnesota laws against arson, criminal damage to property”, among a number of others, none of which was charged, including threats to any person, not to only protected classes.

    • Ken Kukec
      Posted June 12, 2017 at 10:54 am | Permalink

      “Hate crimes” all require that there be an underlying crime; none of them punish evil thoughts alone.

      It is commonplace under our criminal justice system for additional punishment to be meted out to perpetrators who act with a prohibited mental state. Some offenses, for example, come in for aggravated sentencing where they were committed for pecuniary gain or where they targeted a vulnerable victim.

      I don’t think that “hate crimes” are needed, or that they’re necessarily even good policy. But I don’t think they present any particular danger to freedom of conscience or expression either.

      • Posted June 12, 2017 at 10:58 am | Permalink

        Well said, Ken.

      • Posted June 12, 2017 at 3:46 pm | Permalink

        The actual crime is punished to a certain extent, then the intent (the ‘hate’, “evil thoughts”) receives additional punishment.

        If someone gets 3 years for an assault, but 5 years for a ‘hate crime’ assault of the same magnitude, the perp’s hatred is being punished with 2 years’ time.

        • BJ
          Posted June 12, 2017 at 4:12 pm | Permalink

          I don’t agree with the idea of hate crimes for this reason, but your initial comment was wrong. You can’t be charged/prosecuted solely for the thoughts. You must actually commit a crime based on them.

          • Posted June 12, 2017 at 4:44 pm | Permalink

            Re-read Matt’s comment. He didn’t say or imply solely. He said; “…hate think is punishable by the extra penalties of hate crime laws.”

            He is correct. The hate crime punishment is added (it is “extra”) to the crime. That is, by any measure, punishing thought.

            • BJ
              Posted June 12, 2017 at 5:00 pm | Permalink

              You’re right. My mistake. I misread.

              Sorry, Matt!

        • Ken Kukec
          Posted June 12, 2017 at 6:42 pm | Permalink

          “f someone gets 3 years for an assault, but 5 years for a ‘hate crime’ assault of the same magnitude, the perp’s hatred is being punished with 2 years’ time.”

          Sure, but a perp can also get additional time for targeting a vulnerable victim (such as a child or senior citizen) or because the crime was motivated by a reason such as pecuniary gain. I don’t see how, for constitutional purposes, this is any different from an enhancement for targeting a victim because of his or her race or religion or ethnicity.

          As I said before, I don’t think such “hate crime” enhancements are needed, or even that they constitute wise policy, but I don’t see that they raise any First Amendment concerns either.

  7. Posted June 12, 2017 at 10:33 am | Permalink

    The obscenity exception would seem to indicate that simple and widespread moral judgements can justify limits on free speech. One would think this might be exploited to allow hate speech protections.

    • BJ
      Posted June 12, 2017 at 10:57 am | Permalink

      Not really, as obscenity rulings have been repeatedly struck down over the last few decades, setting significant precedent to overcome. Regardless, “obscenity” basically referred to pornography or pornographic art in the past.

      • Posted June 12, 2017 at 11:31 am | Permalink

        Yes. The so-called Miller test focuses on “prurient” content. Can’t upset those folks in the Bible belt.

        • BJ
          Posted June 12, 2017 at 4:13 pm | Permalink

          It’s really not just the Bible Belt anymore. We have plenty of sex-negative regressives campaigning against porn and the “toxic masculinity” it supposedly breeds (but that they can’t seem to show it breeds no matter how many studies they try with).

    • Ken Kukec
      Posted June 12, 2017 at 11:12 am | Permalink

      Despite the formation of anti-obscenity task forces under our last couple Republican presidents (and despite candidate Donald Trump’s having taken an anti-pornography pledge), obscenity prosecutions are very rare in the United States. In the main, anti-obscenity crusades are the idée fixe of certain corners of the puritanical right wing and of radical sex-negative regressive feminists.

  8. Posted June 12, 2017 at 10:50 am | Permalink

    This article is a bit of a tautology: explaining U.S. free speech law as if that justifies U.S. free speech law.

    But the rest of the civilized world rejects the U.S. model in small but perhaps fruitful ways, and has had limited hate speech exceptions to free speech for many decades now. Europe has not slid into a totalitarian no-political-speech zone.

    So, the question is why insist on American exceptionalism in regard to hate speech and certain very limited proscriptions on political speech since, let’s face it, American free speech rights are definitely not absolute? Exactly what of value would be lost from the national conversation if, say, Holocaust denial was disallowed in certain public speaking situations? Note that Holocaust denial is not disallowed in private speech situations in Europe.

    There is a free speech laboratory producing results out there is the free world. Simply insisting that American free speech laws are great because American free speech laws work a certain way, and have worked a certain way for a long time, is not particularly helpful to the question of whether they should be changed.

    And the perennial concern: “Just who should we trust to determine new free speech exceptions” has a reply: Take your pick of how dozens and dozens of other countries do it.

    • Posted June 12, 2017 at 10:55 am | Permalink

      I’ve explained before what we’d lost if Holocaust denialism were outlawed: the ability to look at and learn about the real evidence for the Holocaust, and the ability to hone our arguments by hearing our opponents. That’s what would be lost; it’s valuable, and Mill goes into it in detail in On Liberty. I’ve discussed this precise issue before, but you seem to have overlooked it.

      There is a reason, which many of us have discussed here, for American free speech laws. Let me ask you: what did Canada gain over the US by putting Ernst Zundel in jail for denying the Holocaust? NOTHING. Dozens and dozens of other countries do it and do it WRONG.

      • Posted June 12, 2017 at 11:00 am | Permalink


      • Posted June 12, 2017 at 12:10 pm | Permalink

        “I’ve explained before what we’d lost if Holocaust denialism were outlawed: the ability to look at and learn about the real evidence for the Holocaust, and the ability to hone our arguments by hearing our opponents”

        My understanding is that where Holocaust denial is outlawed in Europe (most notably Germany) all speech is not forbidden, merely particular types of public speeches, say, to a crowd. I don’t see how that would preclude looking at the evidence for and against the event. I don’t see how the historical record would be lost. The ‘arguments’ for Holocaust denial have been made many times already – I think Germany, for example, feels there is little else to be learned from such speeches, and much danger to be avoided by precluding them. Although, it would be great to hear from informed European voices on the topic – I am sure they could make much more cogent argument than I.

        And you make good points regarding the negative effects of Europe’s hate speech laws – there must be negative effects. ( And over-reaches too, although many times they are corrected). But there may also be benefits that others could elucidate. I am interested in whether they are persuasive, as there are lots of Europeans who believe fervently that their system(s) are preferable to ours.

        I can think of one reason to have laws forbidding Holocaust denial. By having them on the books, a country is giving its official imprimatur, so to speak, that it is important to their society that such nonsense is not to be tolerated by civilized informed citizens. I dare say this would be more important in lands where the thud of the boots of Stormtroopers still echo in the memories of many and is a source of national shame not be repeated that they believe justifies the restriction of free speech. Even in a country where free speech is cherished, this is one place they will not go.

        “Dozens and dozens of other countries do it and do it WRONG”

        Wrong by our standards, yes. Their standards are different – but perhaps no less noble than ours, I daresay they would argue.

        • Posted June 12, 2017 at 12:22 pm | Permalink

          As far as I can see, hate speech and blasphemy laws (often the same thing, as to many Muslims) are on the way out in the West. But I suppose that you agree with the laws in Islamic countries that criticizing the religion, or espousing atheism, is a form of “hate speech” that is criminal and punishable by death, then, right? Or do your claims that other countries do it right, and have managed to find authorities to judge speech correctly, applies only to the West.

          Mill, by the way, was not American but English, as was Hitchens. They were both outspoken proponents of free speech on the American model.

          What problems do you think America has and Germany has not because they have hate speech laws? Do you see a resurgence in Holocaust denialism in the US? I don’t think so: free speech guarantees that the truth will eventually out. Suppressing it does nothing.

        • Paul Schoeckel
          Posted June 12, 2017 at 1:33 pm | Permalink

          The problem with outlawing speech, including Holocaust denial, not only does the outlawed speech still exist, but exists underground. You can only combat ideas when you know what they are.

          I think is it better to let Nazis, KKK and sons of the confederation march so we know who they are and what they’re doing.

          Outlawing ideas doesn’t make them go away.

          • Posted June 12, 2017 at 3:49 pm | Permalink

            “Outlawing ideas doesn’t make them go away.”

            Outlawing the expression of ideas doesn’t necessarily make the ideas go away, but provides an opportunity for rational thought, discussion, and possibly revision of ideas. Freedom of speech is critical for Democracy.

        • Posted June 12, 2017 at 3:44 pm | Permalink

          The holocaust is a provable event. It is a bad idea to censor its denial. That just reinforces the view among the gullible that the deniers must be “on to something.” Every denial is an opportunity to prove it happened.

        • Posted June 12, 2017 at 3:50 pm | Permalink

          But on what basis and by what process did you determine that holocaust denial was intolerable? How did you even get to the point where holocaust denial was deemed incorrect?

          • Posted June 12, 2017 at 3:51 pm | Permalink

            Questions directed at ginger baker.

            • Ken Kukec
              Posted June 12, 2017 at 5:30 pm | Permalink

              “Gingerbaker” marches to the beat of a different drummer (with apologies to both the rhythm section for Cream and H.D. Thoreau 🙂 ).

              • Posted June 12, 2017 at 8:53 pm | Permalink

                The lyrics to SWLABR make more sense than this argument.

      • Posted June 12, 2017 at 1:35 pm | Permalink

        Indeed – I’m a Canadian, and the Zundel case (which happened while I was a kid, IIRC) helped form my opinions.

        There’s much wrong with the US and its constitution, but IMO the freedom of speech provisions and case law really *are* a model for the world, for the most part. Who would have thought that “American Exceptionalism” actually had a genuine instance? 😉

        • Posted June 12, 2017 at 2:40 pm | Permalink

          “There’s much wrong with the US … constitution”

          Care to elaborate?

          • Ken Kukec
            Posted June 12, 2017 at 5:35 pm | Permalink

            Doesn’t guarantee the people either hockey or Labatt Blue Ale, eh?

            • Posted June 13, 2017 at 7:51 am | Permalink

              🙂 Or Brador, even better!

          • Posted June 13, 2017 at 11:45 am | Permalink

            Off topic, but the biggest ones to me are:

            1) No uniform mechanism for elections: each state elects the executive and the legislative branches “their own way”.
            2) 2nd amendment and its endless problems.
            3) The ability of the CoC provisions to circumvent the declaration of war provisions by simply “executive order”.
            4) The electoral college.

            • Posted June 14, 2017 at 8:39 am | Permalink

              These are simply my personal replies:

              1. Doesn’t seem like a real problem to me. In really important cases, Federal Law takes precedence.

              2. Agreed. But I think archaic interpretations are the real problem. I agreed changes would be useful (but extremely unlikely, at least in my life time or my kids’ lifetimes).

              3. This is an issue for congress to address. The Constitution requires an act of congress to declare war (Article I, Section 8, Clause 11). Deviations have been allowed, one way or another, by Congress. (One should write to one’s representatives.)

              4. This doesn’t seem like a critical issue. I’ve been disappointed by EC outcomes vs. popular vote outcomes (2000, 2016). But inversions like this have been rare. I have always lived in states with larger populations, so my votes have been effectively shortened by the EC system compared to, for instance SD, WY, ND, etc. But, again, this doesn’t seem critical.

              I prefer the political climate in Canada vs. the USA (though I have always lived in the US — but close to the border!) but I don’t think the differences are due to the US Constitution (e.g. gun ownership is comparable in Canada relative to the USA*; but there’s much less gun violence in Canada.)

              There are many things I don’t like about the US; but vanishingly few can be attributed to the US Constitution. They can be attributed to the fact that I am more liberal than the generality of the electorate in the US. (For instance, I would like to have a medical coverage system like Canada’s Medicare.) So, I choose to live in more liberal states and more liberal areas in those states. And I vote, always. And I write to my representatives regularly. And I encourage like-minded people to vote.

              (* About 1/3 of US households have a gun (or more); but ~3% of households own 50% of the guns. About 26% of households in Canada have gun(s).)

    • BJ
      Posted June 12, 2017 at 11:04 am | Permalink

      “But the rest of the civilized world rejects the U.S. model in small but perhaps fruitful ways…”

      They’re not really fruitful at all. For example, we just had a couple arrested in England for burning a Koran. Meanwhile, England has many Imams preaching outright hatred and violence towards unbelievers and, in particular, Jews. Those people don’t get punished, but two private citizens burning a Koran do. That is not fruitful, but government censorship.

      I would not take my pick of how any of those countries do it. In England, The Netherlands, and Germany, we have seen multiple people over the last few years have had the police come to their homes and arrest them for posting negative things about government policy re: Muslim immigration and (non-)intergation on social media. Neither I nor most Americans want to live in a country where you can speak out against certain groups (so long as they’re perceived to be the “oppressors” or majority) and have the cops show up and arrest us for what is basically innocuous speech.

      Additionally, your supposed answer still ignores the question of what happens when people you don’t like (say, the Donald Trump administration and an entirely Republican Congress and conservative Supreme Court) get a hold of your new censorship laws.

      Repealing American free speech protections is a long, dark road, and those of us who know enough about the law and how its applied in this country and the ones that don’t have these protections know that we don’t want to see where that road leads.

      • Posted June 12, 2017 at 11:06 am | Permalink

        Well said.

        • Tom
          Posted June 12, 2017 at 11:58 am | Permalink

          For many Governments today including the UK hate speech means “we (the government) having ignored hate speeech by so many Islamic fundamentalists for so long and suffered the entirely predictable consequences; will now completely ignore the principle behind free speech any deny it to everybody, in the pious knowledge that our people will recognise it as the rightfully democratic thing to do”

          • Posted June 12, 2017 at 2:25 pm | Permalink

            Free speech is not denied to everybody. Islamic fundamentalists continue to enjoy it, more than ever before.

      • Posted June 12, 2017 at 2:23 pm | Permalink

        + 1

    • Historian
      Posted June 12, 2017 at 11:09 am | Permalink

      The NYT has just posted an op-ed by Daphne Keller called “Making Google The Censor.” Several European countries want Google and Facebook to proactively remove hate speech. Clearly, much of the world has a very different concept of free speech than does the United States. She says:

      “Prime Minister Theresa May’s political fortunes may be waning in Britain, but her push to make internet companies police their users’ speech is alive and well. In the aftermath of the recent London attacks, Ms. May called platforms like Google and Facebook breeding grounds for terrorism. She has demanded that they build tools to identify and remove extremist content. Leaders of the Group of 7 countries recently suggested the same thing. Germany wants to fine platforms up to 50 million euros if they don’t quickly take down illegal content. And a European Union draft law would make YouTube and other video hosts responsible for ensuring that users never share violent speech.”

      Keller opposes these proposals:

      “The proposed laws would harm free expression and information access for journalists, political dissidents and ordinary users. Policy makers should be candid about these consequences and not pretend that Silicon Valley has silver-bullet technology that can purge the internet of extremist content without taking down important legal speech with it.”

      So, it appears that terrorism has another negative effect, not talked about enough – increased suppression of free speech.

      • BJ
        Posted June 12, 2017 at 11:17 am | Permalink

        “So, it appears that terrorism has another negative effect, not talked about enough – increased suppression of free speech.”

        And cowing a good portion of the populace into handing over increasing control of civil liberties to the government for a vague promise of protection.

      • Posted June 12, 2017 at 3:58 pm | Permalink

        So Google et al would shoulder the burden of customizing censorship of hate speech in accordance with the laws of each country? If so, it seems a most unreasonable expectation.
        Yes, there are thoughts expressed that I’d rather not have heard, but “better out than in” as Shrek would say. Then, the decision is mine as to what to do about it.

      • Filippo
        Posted June 12, 2017 at 9:01 pm | Permalink

        I have the hard copy. Haven’t read it yet, hope to, but noted at the bottom that she used to work for Google who (which?) wants to know EVERYTHING about us if at all possible. Maybe she would care to give May, and others in high office, some specific, positive recommendations. Being an attorney it appears that she is supremely qualified (rivaling a NY Times regular columnist or economist). Everybody rides the bucking horse better than the gal/guy riding it.

    • Posted June 12, 2017 at 3:24 pm | Permalink

      So, the question is why insist on American exceptionalism in regard to hate speech and certain very limited proscriptions on political speech since, let’s face it, American free speech rights are definitely not absolute?

      Exceptionalism is when somebody thinks an exemption should apply to themselves and no-one else.

      I’m not aware of Americans arguing that free speech should only be for themselves.

      Most of them seem baffled their rights don’t apply to the rest of us.

      • Posted June 12, 2017 at 4:48 pm | Permalink

        It is my understanding that the phrase “American exceptionalism” is a jingoist phrase meaning that American style-things (policy, laws, culture, etc) are superior to others.

        I do not believe it is meant to say that “an exemption should apply to themselves and no-one else.”

        • Historian
          Posted June 12, 2017 at 7:35 pm | Permalink

          Mikeyc, you are correct.

          Here is what Wikipedia says about American Exceptionalism:

          “American exceptionalism is one of three related ideas. The first is that the history of the United States is inherently different from that of other nations. In this view, American exceptionalism stems from the American Revolution, becoming what political scientist Seymour Martin Lipset called “the first new nation” and developing the uniquely American ideology of “Americanism”, based on liberty, egalitarianism, individualism, republicanism, democracy, and laissez-faire economics. This ideology itself is often referred to as “American exceptionalism.”[4] Second is the idea that the U.S. has a unique mission to transform the world. Abraham Lincoln stated in the Gettysburg address (1863), that Americans have a duty to ensure that “government of the people, by the people, for the people, shall not perish from the earth.” Third is the sense that the United States’ history and mission gives it a superiority over other nations.”

          In today’s world, the expression is often used by conservatives to suggest that American institutions and traditions are superior to other nations.

          • Filippo
            Posted June 12, 2017 at 9:04 pm | Permalink

            Would that one out of a thousand times one could rather hear of American Humility and Circumspection.

            • Posted June 13, 2017 at 7:54 am | Permalink

              Indeed. But that’s what der Drumpfenführer beat Obama with during the campaign and is still doing now.

              How could Obama have been so “weak” as to negotiate with the Iranians? /saracasm

  9. Gareth Price
    Posted June 12, 2017 at 12:12 pm | Permalink

    Sometimes when I am contemplating issues I will look up what the law says, as I assume that it will be based on careful consideration. Ken White concludes by saying “But the free speech debate should proceed based on facts and well-established law, not empty rhetoric”. However he also points out earlier that balancing free speech with other interests is philosophically arguable but legally wrong.

    My question is: is it a good idea to start one’s thinking from the legal point of view, or does that tend to constrain thinking?

    • Posted June 12, 2017 at 1:36 pm | Permalink

      As a non-lawyer I find it very difficult to do- I find reading such things very “crabbed” in writing style. For example, I have tried for years now to learn a lot from Hart and Honore’s _Causation and the Law_, but I find it very challenging.

  10. Torbjörn Larsson
    Posted June 12, 2017 at 12:27 pm | Permalink

    I think Europe is posed to move in the other direction.

    A recent analysis of a 2015 (IIRC) survey show that Swedes generally want to pose laws that restrict free speech in the internet age balancing protection of privacy of children and elders. (But *not* protecting religion.)

    I do not know if that is an actual as opposed to felt problem. As a context, the efforts to restrict mobbing, where Sweden was initially successful, has recently been described as faltering. It is claimed that with the web especially children mobbing children has moved out of the schools and the neighborhood to be 24/7.

  11. Randy schenck
    Posted June 12, 2017 at 2:04 pm | Permalink

    I think the Europeans can do whatever they want on this issue. They seem to be more sensitive by far on the speech business. I do not trust Corporations or individuals or committees to define and censor my speech. The free press and speech are the most important things we have left here in the U.S. and we need to fight like hell to retain them. If we lost any of it, the Trumps of the world would win.

    • Posted June 12, 2017 at 2:50 pm | Permalink

      Indeed, when free speech is limited (in any but the most carefully circumscribed and least possible ways), you end up with Hitler, Stalin, or Kim Il Sung.

      Free speech is the only way a society can protect the other freedoms they value. Without free speech, the others quickly fall. How can you defend freedoms if you can’t talk/video/facebook (or whatever) about their being abridged?

      To balance this against someone being “offended” by some one else’s speech (that is not direct incitement) just seems blind and foolish to me. People need to be educated that they have no right to “not be offended.” Guess what, not everyone is going to like you — or me — or agree with me or you. They may say mean things about you or call you names. Buck up!

      Who is the decider; and why would you think that, whoever that person is (though the distant future), they will always agree with you?

      • Posted June 12, 2017 at 2:52 pm | Permalink

        … through the distance future …

    • peepuk
      Posted June 13, 2017 at 1:18 pm | Permalink

      Europeans are not that bad.

      But your right, our governments are paternalistic and more left-wing.

  12. Kevin
    Posted June 12, 2017 at 2:58 pm | Permalink

    Even the most hateful speech ever can be met by a tsunami of swift public outcry.

    Hate speech is like bad music: aesthetically unpleasant but now you know what radio station never to listen to again.

  13. Joe Jones
    Posted June 12, 2017 at 3:57 pm | Permalink

    A lawyer is an officer of the court, and if he’s promoting his practice with his speech, he is regulated twice, by color-of-law statutes relating to his status as officer of the court, and by the Wire Act and all kinds of consumer-protection laws.

    As for Mr. White, well, his Twitter history and that of those with whom he speaks regularly, offers tremendous insight into who the man is.

    • Ken Kukec
      Posted June 12, 2017 at 6:21 pm | Permalink

      A lawyer’s being “an officer of the court” for purposes of appearing before a judicial tribunal does not thereby render that lawyer a “state actor” or a person “acting under color of law” for purposes of either the US Constitution or the federal civil-rights statute, 42 USC section 1983.

      I take it that this reference of yours, as well as your reference to the “Wire Act,” must relate to the laws of some other jurisdiction?

  14. nicky
    Posted June 12, 2017 at 7:45 pm | Permalink

    The question about Imams spewing ‘hate speech’ or the history of say ‘Radio Mille Collines’ is: what constitutes incitement to violence?
    There is no doubt that the 2 examples are/were instumental to terrorist attacks and a genocide respectively.
    How direct must the incitement to violence be before it should not be protected by ‘free speech law’ anymore?

    • BJ
      Posted June 12, 2017 at 8:36 pm | Permalink

      When you’re actively advocating violence. Any other measurement isn’t objective. Any type of speech could cause a crazy person to do something violent, but the end result doesn’t suggest intent on the part of the speaker, and that’s the only thing you can really base such a rule on: the intent behind the speech. And one can only know that the intent is violence when the speaker is actively urging violence from part the audience.

      • nicky
        Posted June 12, 2017 at 11:49 pm | Permalink

        That does not really answer the question.
        “They are cockroaches, what do we do with cockroaches?”
        “Kill an infidel and Paradise is guaranteed”.
        What is the intent there? It definitely sounds like incitement to me…
        Even a simple : ‘they’ should not have the right to live

      • nicky
        Posted June 13, 2017 at 1:10 am | Permalink

        And what about “Death to those who mock Islam”? Or “Kill those who Mock Islam”?
        How dierctbcan it get?
        Note, the (generally bearded) men brandishing placards with these incitements are for some incomprehensible reason never prosecuted…

        • Ken Kukec
          Posted June 13, 2017 at 3:48 am | Permalink

          In the US, an incitement to violence can be made unlawful only where it is both intended to bring about imminent lawless conduct and is likely to succeed in doing so. If the threat of violence is not imminent, the remedy for such incitement is countervailing speech designed to convince people to act lawfully, not the silencing or punishment of the speaker.

          • Posted June 13, 2017 at 7:58 am | Permalink

            Ken: Thanks for all your comments on this thread. Much appreciated.

          • nicky
            Posted June 14, 2017 at 12:53 am | Permalink

            Again the question should be asked, what is ‘imminent’?
            The ‘Radio Mille Collines” in Rwanda resulted in a genocide. It was very ‘imminent’ -with hindsight, of course.
            It is not as if cartoonists or their publishers, or Theo van Gogh, were not murdered. I would call these incitements to murder quite ‘imminent’, especially in view of recent antecedents.

            • Posted June 14, 2017 at 9:24 am | Permalink

              That is a question for courts to decide (regardless of location) because these things cannot be defined a prioi in a closed way.

              You can pick out certain cases that certainly are imminent; but not all cases and not all cases that would be excluded.

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