I think our disagreement comes down to two things:
How actually narrow the categories of unprotected speech are, and;
Whether there is a category of “hate speech” that is unique in context, that doesn’t fall under other categories of unprotected speech.
Completely separate from those considerations, I also posit that there should no longer be protections for speech that specifically advocates mass murder, torture, or slavery. Those are forms of speech that are somehow currently protected that are fundamentally harmful to society.
I appreciate your response. To directly address those two points,
While the ultimate definition of “narrow” might be a bit subjective, I can say that as a legal matter, those exceptions are applied extremely narrowly in principle and in practice. Things like incitement or fighting words or true threats have to pass some pretty high standards before they’re permissibly restricted. Cohen and RAV have extended discussions about how narrow those exceptions are, and the reasoning behind such an approach.
The recent case of Matal v. Tam has a pretty clear passage on that summing up the answer to the question:
It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest in preventing “ ‘underrepresented groups’ ” from being “ ‘bombarded with demeaning messages in commercial advertising.’ ” Brief for Petitioner 48 (quoting 808 F. 3d, at 1364 (Dyk, J., concurring in part and dissenting in part)). An amicus supporting the Government refers to “encouraging racial tolerance and protecting the privacy and welfare of individuals.” Brief for Native American Organizations as Amici Curiae 21. But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea 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.” United States v. Schwimmer , 279 U. S. 644, 655 (1929) (Holmes, J., dissenting).
While I agree with the sentiment, I disagree with your conclusion. But, I understand the motivation and am not trying to convince you otherwise. That’s just something we happen to disagree, at least partially, on.
To be more specific, I’m talking about “hate speech” that is only threatening or intimidating in context, going back to the examples of cross burning or Nazi chants when applied in a specifically threatening situation, vs general circumstances. We might “hate the thought” in general circumstances, but authorities are forced to act when it’s a specific and credible threat in order to protect people from direct harm.
Scalia did not consider the latter as “hate speech” but I still contend that he had blinders on about that. When the context is hate speech in fact, and represents a threat or intimidation only in that context, it’s still hate speech.
As an aside, whatever gets decided here, I want to pre-clear something before the inevitable debate:
I hope we can agree that the Constitution and its defenders will clearly protect the phrase “Ok Boomer” from ever being challenged on “hate speech” grounds, and that it will be given as much protection as Nazi speech is routinely and robustly given.
Ok, that’s a useful clarification, but that context is what takes it into other categories of unprotected speech, i.e. the true threat or intimidation. That is why Virginia invalidated presumption of the intent to intimidate in the statute but held that a statute banning cross burning with the intent to intimidate was permissible. That extra step is the necessary one to take it into unprotected status, and this appears to be at the crux of your question above.
Here’s a pragmatic way to think about how RAV and Virginia work in practice.
The state could (at least potentially) outlaw all forms of cross-burning in a viewpoint-neutral statute.* So it’s illegal for the Klan to burn a cross in a public ceremony and illegal for a homeowner to build a cross in their own back yard and burn it for some other purpose.
The state can’t forbid cross-burning only when it is performed with racist or hateful intent, as that is viewpoint discrimination. In other words, you can’t forbid the Klan from burning a cross as part of their idiotic initiation ritual but allow someone to burn a cross as a way of mocking Klansman and their tiny dicks.
The state can forbid cross-burning performed with the intent to threaten and intimidate. That intent can’t be presumed, but has to be examined it its own context, and that intent is what takes it into an existing unprotected category. That’s a really important distinction to make, because the result in practical terms is that the Klan can legally burn a cross as a part of its own private ceremony, but it’s extremely likely that burning that same cross in front of someone’s house is going to be interpreted as a threat and therefore unprotected.
Now, it’s important to keep in mind that this last step does not mean that “hate speech” is therefore an unprotected category of speech. Because the state can also punish political or religious speech performed with the intent to threaten and intimidate, and of course that doesn’t mean that political and religious speech is therefore unprotected.
*they’d run into some serious problems with legislative intent on a facially neutral statute (i.e. like if a city tried to pretend it was acting neutrally by forbidding any public display of a crescent moon as opposed to targeting Muslims) but at least it’s possible
I think what you’ve laid out is a rhetorical Catch-22. The hate speech context of cross-burning in someone’s front yard is what determines that it is a threat. Change the context and it’s just vandalism. So to try to somehow separate the speech from the threat is impossible. That’s why it’s not some other form of unprotected speech. It’s a threat because it’s hate speech, not the other way around. Therefore, hate speech is not broadly protected. It’s just as narrowly protected as it is unprotected.
It’s worth noting that your position aligns nearly completely with that of Thomas’ dissent in Virginia. Alas for the Hon. Justice Thomas, there’s a reason it’s a dissent.
Narrow protections, after all.
