On Monday, the Supreme Court issued an 8-0 ruling in a case concerning a governmental regulation on free speech. Shockingly, even the leftist members of the Court agreed that free speech cannot be regulated as “hate speech.”
The case concerned the attempt to register a band called “The Slants” for trademark. The trademark office refused the trademark on the grounds that it was an offensive term for Asians.
Justice Samuel Alito wrote for four of the justices; Justice Anthony Kennedy wrote for another four. Alito’s opinion rightly explained:
[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, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
And here was Kennedy:
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
All of the justices are right, and it is comforting that they agree on this basic principle of First Amendment jurisprudence.
Here’s the problem: as unity grows regarding protections for “offensive speech,” a movement is afoot more broadly to categorize speech not as offensive, but as causing violence. In Brandenburg v. Ohio (1969), the Court ruled that the government cannot regulate speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Even language that advocates violence may not be strong enough to violate this standard — the incipient violence must be immediate. It’s not enough to say, “This house should be burned down”; you must say, “Let’s burn down this house right now. Grab the matches.”
Now, however, that standard is under assault from Right and Left. As we’ve seen from the progression of the law, first the culture changes, and then the law — and yes, Supreme Court rulings — reflects such change. If as a culture we begin to identify words with violence — if we begin to suggest that a production of Julius Caesar is an incitement to assassination, or if we state that Sarah Palin’s targeted district map is an incitement to violence, or if we explain that Charles Murray must be banned from campus because his research on IQ might lead to discrimination — we’re going to start banning words in the near future. At the least, we’re going to make life unliveable in the realm of free speech. Free speech will not change immediately de jure, but we’re close to changing it de facto right now.
Instead, we should all take a step back and recognize the Supreme Court standard isn’t just the legally correct standard — it’s also the standard for a free society. Yes, we can advocate for more temperate use of language. But if we link speech with violence without evidence, we’re going to end up doing violence to the First Amendment.