By JUDE P. DOUGHERTY
The Cato Institute in its Policy Analysis bulletin of May 24 has published a timely article by Robert Corn Revere on “Hate Speech Laws.” Revere is a Washington-based lawyer who practices First Amendment and media law.
Whether intentional or not, racial tension is promoted daily by big media as they give coverage to what otherwise might be construed as minor events in Baton Rouge or St. Paul. Protests in one part of the country or another against police brutality (never alleged police brutality) are treated as national events and in major newspapers, they are given front-page treatment under headlines such as “officers ought to be held accountable.”
In the context of discussions of hate speech, the right not to be offended is presented as a First Amendment right. Although related, that is a different issue.
Robert Revere turns to Justice Robert Jackson, whose dissenting opinion in a case that reached the Supreme Court in 1949 as Terminiello v. City of Chicago provides a guide.
Judge Jackson made an important distinction between the free expression of unpopular ideas and the expression of those ideas in a context that has the potential for violence, the imminence of a riot, for example. In Jackson’s opinion, it is the potential for violence — not the presence of hate — that separates free from restricted speech.
By reviewing a series of cases since Terminiello, Robert Revere shows that Jackson’s opinion has come to prevail in American law. In the words of Chief Justice Roberts, delivered in a case that reached the Supreme Court in 2007, “In the United States the presumption favors freedom of expression and the speaker gets the benefit of the doubt. Where the First Amendment is implicated the tie goes to the speaker, not the censor.” … Continue Reading