Free Speech: Quoting Case Law is Missing the Point

There has been a LOT of stupidity boomeraging around the media in the last couple of days, mostly in the form of asserting that “hate speech” is not the same as “free speech.” There have been some prominent folks getting an education in Supreme Court cases on the First Amendment. If you’re interested, you can read Chaplisky v. New Hampsire, R.A.V. v City of St. Paul, and Street v. New York, if you are so inclined.

But let’s posit a hypothetical: suppose the Supreme Court had, contrary to reality, declared that “hate speech” is not protected by the First Amendment?

Let’s answer that question with another: what if the Supreme Court had declared that the Second Amendment applied only to arms in common use in 1789, and thus protected only muzzle loaders?

I see no reason to accept the Supreme Court as the final arbiters of our rights. As a practical matter, they are; if they disagree with you, then getting caught violating SCOTUS-approved laws could mean jail for you. But as a moral and political matter, there is no reason to think they have it right all the time, and no reason why your opinion has to match theirs. If they get it wrong, then we have a duty to try to get them to reverse themselves (which certainly happens).

“Hate speech” is free speech. Hating someone is your right. Telling the world you hate that someone is your right. It may be unpleasant—hate is unpleasant—but distinctions like “hate speech” make free speech completely empty. Anybody can decide that what you’re doing is hateful, even if you’re just quoting facts that they happen to find inconvenient. And of course, you can claim what others are doing is hateful, too. That takes the principle of “equal justice under the law” and replaces it with “might makes right.” Get enough people to declare you enemies “haters” and they can be banned, jailed, murdered, whatever. Even for speaking the truth.

That is not the world we want to live in, whether or not the Supreme Court agrees. Free speech must never be reduced to the legalistic interpretation of the First Amendment.

“Freedom can be preserved only if it is treated as a supreme principle which must not be sacrificed for particular advantages.” – Hayek