Senator Ben Cardin (D-Md.) declared from the Senate floor recently that “hate speech” isn’t protected under the First Amendment, oddly citing draconian EU laws against speech as justification for a domestic crackdown:
.@SenatorCardin: "If you espouse hate, if you espouse violence, you're not protected under the First Amendment. I think we can be more aggressive in the way that we handle that type of use of the internet." pic.twitter.com/t38Myy93ZI
— The Hill (@thehill) December 29, 2022
Why would a U.S. Senator cite European laws or norms regarding speech in the context of prescribing U.S. policy? Is he an American senator or a Brussels bureaucrat?
Presumably after a backlash against the open mischaracterization of the Constitution by a public official sworn to protect it, Cardin issued a clarifying statement. It was mostly a buzzword-laden collection of liberal talking points citing the threat posed by “domestic terrorists” (code for right-wingers), with a weasel-wordy slight nod to the First Amendment inserted at the bottom:
But what about the First Amendment? Although the First Amendment protects even hateful speech, if that speech motivates someone to commit a crime, engage in violence, or take action that infringes on someone else’s right, that speech is not protected under the First Amendment and there must be accountability.
Wrong again, Ben. Speech that “motivates someone to commit a crime” is vague gobbledygook with no precise legal meaning.
Related: Into the Paddy Wagon: Ireland Imposing Up to 5-Year Prison Term for ‘Hate Speech’
The actual Constitutional prohibition on free speech is very specifically against that which inspires imminent violence or other lawless action at a clearly defined target. For example, a leftist could say “evil whites should be executed” (which, according to Cardin’s parameters might be taken to “motivate someone to commit a crime”), but the leftist could not legally say “go kill the evil white Joe in the coffee shop across the street right now.” The first is a general statement of ideology; the second is an actual incitement to imminent violence against an identifiable victim.
The University of Wisconsin-Milwaukee explains:
There are exceptions for speech that incites people to violence, but they are very narrow. In Brandenburg v. Ohio (1969), the U.S. Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Subsequent Supreme Court cases have clarified that speech advocating illegal action at some indefinite future time is protected by the First Amendment, if it does not constitute criminal conspiracy. These rulings ensure that people can advocate for different forms of societal change, free from government reprisals.
But why would Cardin be expected to understand Constitutional nuance and filter his speech in the People’s chambers accordingly to avoid infringing on sacred political rights? He only graduated from the University of Maryland School of Law, allegedly first in his class.
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