It was a heady day at the Supreme Court for people who aren’t Howard Dean. The Court issued two opinions, which spoke as clearly as legally possible to the trendy “hate speech isn’t free speech” mantra: Yes, it is. It’s free speech.
We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.
Had Justice Alito stopped there, written nothing further, we would have been fine. After all, this was the holding, and all the holding that was really needed to accomplish the two things that were needed of the Court. We knew who won. We knew why. Problem solved.
But, of course, the Court didn’t stop there.
Simon Tam is the lead singer* of “The Slants.” In re Tam, 808 F. 3d 1321, 1331 (CA Fed. 2015) (en banc), as corrected (Feb. 11, 2016). He chose this moniker in order to “reclaim” and “take ownership” of stereotypes about people of Asian ethnicity. Ibid. (internal quotation marks
omitted). The group “draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes” and has given its albums names such as “The Yellow Album” and “Slanted Eyes, Slanted Hearts.”
Simon’s purpose in naming the band the Slants was positive, to reclaim a racist slur. This is certainly a wonderful purpose, very Lenny Bruce-like, and one that in Simon’s eyes distinguished what he did from what the Washington football team sought to do, raising the same question but for less laudable purposes. The Redskins want to perpetuate a trademark that was offensive from the start just because it’s always been the name. There is no greater goal.
On the day of issuance, the holding was made as clear as possible, that the Supreme Court, certainly cognizant of the cries about hate speech**, rejected any notion that there was a hate speech exception to the First Amendment. If Alito’s opinion wasn’t clear enough, Kennedy’s concurrence said so again.
A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
Eugene Volokh summed up the ramifications:
And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. , , [T]he court held, viewpoint discrimination — including against allegedly racially offensive viewpoints — is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.
As lawyers, and legal scholars know, the Supreme Court will render a holding, and then write a lot of other words, it’s rationale, dicta, surplusage, because a few pages, a few sentences, would be unfulfilling. And they did so here, which is where the potential day-after hangover will arise.
Despite the clarity of the holding, some will read this opinion as supporting the use of racial slurs only when the heart of the person doing so is pure, like Simon Tam’s. Others will seize upon the words “free and open discussion in a democratic society,” to contend that only words that contribute to thoughtful dialogue are covered. Screaming epithets brings nothing to the discussion. False ideas are even worse, as they undermine thoughtful discussion.
And while it may be that we can’t leave words and ideas to the “benevolence” of the government, that doesn’t mean the “good” people can’t decide what is too offensive for acceptability. Are we not a democracy? If the majority, or at least some vocal portion of the populace, decides that speech is too hateful, then it’s not the benevolence of the government, but the Will of the People.
The rationale in support of the opinion is sound, understanding that there is no line to be drawn that distinguishes good and bad hate speech, and no conceptual ledge to prevent the slide from mean words to ideas that are unpopular because they aren’t shared by the majority. Those who feel we would all be better off if people were constrained by law to utter only “happy words” were told “no, that’s not how free speech happens in America.”
Yet, don’t expect this to end the madness, the confusion, the vociferous cries that “hate speech isn’t free speech.” The arguments will shift, slightly, to conform to the details of the case, the rhetoric of the rationale. There will soon be law review articles written about this, twits by Larry Tribe and the Hate Trump academics, explaining why this doesn’t mean what it means. They will redouble their efforts to parse the tiniest nuance that salvages their Utopian ideal that hate speech isn’t free speech. And the unduly passionate will latch onto their rationalizations like a life preserver, clinging to their beliefs because there is still hope that Happy Talk will prevail.
If it were up to me, the discussion should have been limited to “the government cannot prohibit offensive speech because the First Amendment forbids it.” There is no need to justify the First Amendment for each generation. There is nothing to be gained by trying to enlighten the smug but ignorant, or the self-righteous but intellectually dishonest. As clear as the holding may be, there will be a hangover.
*Simon Tam pointed out on the twitters that this was a factual error, that he was not the lead singer of the band. However, as the Supreme Court found he was, and they are the final authority, he now is, whether he likes it or not.
**Whatever the phrase means, as it’s as Humpty Dumpty as it gets.