Hate speech is vile — and protected

IN 1997, Eleanor Holmes Norton stated: “You seldom get to defend the First Amendment by defending people you like … You don’t know whether the First Amendment is alive and well until it is tested by people with despicable ideas.”

Both the character of the speaker and the content of her message speak to the controversy surrounding the scheduled arrival of Milo Yiannopoulos to the University of Washington on Friday. Yiannopoulos is the provocative British journalist and Breitbart editor who incenses many with his abrasive attacks (sometimes personal and cruel) on liberals and the “PC-culture.”

Norton, a woman of color and a Democrat, represents the District of Columbia in Congress. She is a person with a long and honorable history of commitment to the struggle for racial and gender justice. When lives were on the line in 1964, she ventured off to Mississippi for the “Freedom Summer” to register African-American voters. The young activist also worked with the likes of Medgar Evers, the civil rights activist who was murdered. And in the 1970s and thereafter, Holmes was a key figure in the campaign for women’s rights.

It is against that backdrop that her words take on special meaning. It is against that backdrop that her willingness to defend the free-speech principle in supporting the rights of segregationists to speak (and she did just that!) demands our attention and respect.

Let us be clear: Hate speech is abhorrent; it is an affront to the dignity of every person and to all persons. But that said, let us not speak falsely: It is also protected under the First Amendment. U.S. Supreme Court Justice Thurgood Marshall affirmed that idea in 1969 when he signed onto the court’s unanimous opinion in Brandenburg v. Ohio (upholding the rights of KKK members to engage in racist expression). Justice William Brennan, a stalwart defender of equal justice, agreed with that idea when in 1977 he signed onto the court’s opinion in National Socialist Party of America v. Village of Skokie. And in 1992, liberals and conservatives alike voted unanimously to affirm the right to engage in race-hate speech in R.A.V. v. City of St. Paul (the ACLU defended the First Amendment right).

Of course, hate speech plus certain forms of conduct can and should be punished. For example, hate speech that is tantamount to a true threat, as defined by the Supreme Court, is not protected. Washington law tracks this prohibition against threats by way of our malicious harassment statute and likewise criminalizes injury to person or property if done with animus based on race, religion, gender, sexual orientation, or with reference to other specified groups. Fighting words and incitement intended to and likely to produce imminent illegal conduct, again all properly defined, can also be regulated.

For UW President Ana Mari Cauce to dismiss the law and disinvite Yiannopoulos would subject the university to legal liability for abridging First Amendment rights.

Equally important, such rash action would contravene the long-held principle of our democracy that all ideas are entitled to have their say in order that they might be tested and even rejected. Supreme Court Justice Louis Brandeis put it well in a 1927 opinion: “Believing in the power of reason as applied through public discussion, [our founders] eschewed silence coerced by law … If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Today, some progressives celebrate the silencing of Yiannopoulos at the UC Davis campus — his event last Friday was canceled after rowdy protesters created an unsafe environment for students. So, too, some now call on President Cauce to disinvite him. By that measure, conservative students, who are firmly opposed to abortion, should be able to act in kind — i.e., to call on Cauce to disinvite Planned Parenthood’s Cecile Richards should she be asked to speak by some progressive students’ group.

As the late Nat Hentoff once declared, “free speech for me but not for thee” is anathema to our system of constitutional government. It turns our freedom on its head.

Let us learn from Norton’s example: Confront injustice, speak out against bigotry, protest peacefully, and use the First Amendment to make the case for an America that takes its cue from our collective humanity rather than from the divisive invectives of a flamboyant British provocateur.