James Leroy Wilson's blog

Saturday, May 23, 2015

Dislike of the First Amendment Isn't New

A recent poll indicates more Americans support than oppose laws against "hate speech," defined as "public statements which would stir up hatred against particular groups of people."

But it's not a majority; 41% are in favor and 37% opposed. That leaves 22% undecided.

It seems unlikely, however, that hate speech laws will be imposed anytime soon. If the courts protect the least sympathetic hate group of the 21st century, the rest of the haters are probably safe.

That said, the poll does raise concerns that so many dislike or are ignorant of their human right of freedom of speech as protected under the First Amendment.

But it's not new.

Consider laws against obscenity, which the Supreme Court said isn't protected by the First Amendment.

Or regulations on "commercial speech," which the Court deemed can be infringed in pursuit of a "substantial" government interest.

Not to mention campaign finance regulations, which inherently stymie freedoms of speech and the press by choosing how much one can support another's statements and writings.

What these three previous ongoing attacks on free speech have in common is common to all laws against non-aggressive activities in general and anti-First Amendment laws in particular: ambiguity and arbitrariness.

That's when the accused ends up in court without knowing that anything illegal was done.
  • How could a pornographer know when the line was crossed into obscenity?
  • How could a legislature know that an advertising law it passes advances a "substantial" public interest, or a "less substantial" one? How would a court know the difference?
  • As the John Edwards case illustrates, a prosecutor may decide there's no distinction between a politician receiving gifts from wealthy friends, and donations specific to campaigns.
Likewise, hate speech laws are arbitrary and ambiguous. Would they apply to stereotypes said in jest? Derogatory words not said in jest? Using manufactured statistics to shed negative light on a group? Using factual but incomplete information to make a point about a group?

Wouldn't it be used as a political weapon by those in power against opponents?

And, does America want to go down the path of other countries, in which The State itself becomes the source of hate speech?

Consider many in Europe, who believe drawing satirical cartoons of Muslims is "hate speech" that can be banned, but then also deny Muslim women the right to wear face coverings.

If calling for "Burqa bans," targeted at the freedoms of a specific minority, isn't "hate speech," then what is?

In any case, even those deemed "not guilty" of hate speech will have been punished severely in time and expense of fighting the charge.

Meaning, the only "winners" of hate crime laws will be lawyers and judges.  

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