Would it be constitutional to ban cartoons of Mohammed, on the grounds that they are "hate speech" and thus outside constitutional protection?
Following a CNN debate about whether to limit free speech when it mocks the Prophet Mohammed, the network's Chris Cuomo appeared to argue today on Twitter that it would:
it doesn't. hate speech is excluded from protection. dont just say you love the constitution...read it https://t.co/znZJ8cPvpX— Chris Cuomo (@ChrisCuomo) May 6, 2015
His tweet immediately occasioned a heartwarming show of unity from lawyers and political commentators, normally a fractious bunch, who came together to tell Cuomo that he was super-duper-extra wrong:
@ChrisCuomo hey, long time listener first time caller, looking for this in this constitution you speak of. Got a link?— Andrew Kaczynski (@BuzzFeedAndrew) May 6, 2015
Such a painfully dumb tweet! @ChrisCuomo: can you point to where this free speech "exception" is in US Constitution? https://t.co/Z4yCw7IrsQ— Glenn Greenwald (@ggreenwald) May 6, 2015
FYI, the case @ChrisCuomo keeps citing (a) has been subsequently so gutted it's basically a dead letter & (b) IS NOT ABOUT HATE SPEECH.— Julian Sanchez (@normative) May 6, 2015
It's possible some context was missing from Cuomo's tweets, given the earlier CNN debate. But based on what he said on Twitter, I have to say I'm more or less Team Angry Internet Mob on this one: Cuomo is wrong about the Constitution's treatment of hate speech.
It's not just that Cuomo's argument is unconvincing. More specifically, he is wrong because he appears to have misinterpreted the "fighting words" exception to free speech protections from the Supreme Court's decision in the 1942 case Chaplinsky v. New Hampshire. (It seemed in a later tweet that Cuomo might have been trying to retreat from his broad initial argument, but he remained stubbornly insistent that Chaplinsky was the answer.)
"Fighting words" and hate speech are not the same thing
Let's start with the basics. The First Amendment of the Constitution protects free speech from government interference. That protection is very broad. In general, laws that criminalize certain types of speech — say, a specific category of cartoons — are thus unconstitutional.
But there are exceptions. One is the so-called "fighting words" doctrine, which says the government can prohibit words that "by their very utterance, inflict injury or tend to incite an immediate breach of the peace." The reasoning behind the rule is that fighting words don't convey or explain ideas, so their contribution is negligible in comparison to the threat they pose to public order.
That rule came from a Supreme Court decision called Chaplinsky v. New Hampshire — the one Cuomo cited on Twitter. In that case, a Jehovah's Witness named Walter Chaplinsky was arrested for calling a city marshal a "God-damned racketeer" and a "damned fascist," and saying that "the whole government of Rochester are fascists or agents of fascists." The Supreme Court said Chaplinsky's arrest and prosecution were constitutional, because his statements to the marshal were "fighting words" that weren't protected by the First Amendment.
But it's important to understand that the rule doesn't include all speech that is offensive enough to provoke a strong or even violent reaction. Other Supreme Court cases have made that very clear. For instance, in 1971 the court held that lettering on a jacket that said "Fuck the draft" didn't count as fighting words because the jacket's statement wasn't directed at any particular individual.
And, importantly for Cuomo's argument, in 1992 the Court invalidated a St. Paul law that prohibited some types of hate speech. The key issue in that decision was that the law focused on the content of the speech, forbidding statements likely to arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."
The court held that choosing just one subcategory of fighting words based on their content — in this case, words that targeted characteristics like race or religion — was not constitutional. Even if all the speech barred by the law would also be considered "fighting words," the majority opinion explained, that wouldn't be enough: the government couldn't pick out just the fighting words that happened to contain content it disliked. Justice Scalia, writing for the majority, explained that point via a comparison to libel laws: the government could outlaw libel without running afoul of the Constitution, he said, but it couldn't just outlaw libel that was critical of, for example, the government.
Chaplinsky and "fighting words" wouldn't make it constitutional to ban Mohammed cartoons
Cuomo defended his argument that the Constitution doesn't protect hate speech by citing Chaplinsky — the fighting words doctrine. It's understandable that he might have thought that rule would apply, especially because he was apparently following up on a debate about cartoons mocking the Prophet Mohammed. After all, such cartoons definitely do sometimes provoke violent threats to public order.
For instance, the recent shooting in Garland, Texas, in which two would-be terrorists injured a security guard before being killed by police, was at an event that honored cartoons of Mohammed. And in at least some cases — though by no means all — cartoons mocking Mohammed seem specifically intended to offend Muslims.
But those cartoons are actually a good way to illustrate the several big problems with Cuomo's argument.
For one thing, cartoons — even those that appear intended to offend or provoke a hostile response — are trying to convey ideas. Even if those ideas are filled with hate directed at Muslims, they're not mere epithets like the words in Chaplinsky were. Unpopular, offensive, and even morally abhorrent ideas are protected by the First Amendment in this country — witness the Supreme Court's recent opinion in favor of the Westboro Baptist Church or its 1977 decision that let Nazis march in Skokie, Illinois. The fighting words doctrine isn't an end run around constitutional protections for speech that is hurtful, upsetting, or discriminatory.
Likewise, even when cartoons of Mohammed are published to express hate, they are a lot like a jacket that says "Fuck the draft": even if they're deliberately offensive, they're not directed at trying to provoke a violent response from one specific person.
And finally, any law specifically banning Mohammed cartoons would run into the same problem the St. Paul hate speech law did: even if all Mohammed cartoons so reliably incited violence that they could be considered "fighting words," the government can't just ban that one subcategory of speech because it doesn't like its content.
I tend to agree with my colleague Max Fisher that the event in Garland was a hate event directed at Muslims, not a brave stand in favor of free speech. But it was still protected by the Constitution. And it should be.