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Should the First Amendment protection continue to extend to hate groups?

August 20, 2017

How broad should first amendment protection be?

A Naked Capitalism article, among many others recently, addresses this question.

The established standard (i.e., US Supreme Court) is that while hate groups such as white supremacists and nazis do not deserve it, we give it to them anyway. The NC article misstates the reasoning why we give it to them. I think if you’re going to have this discussion, which is completely appropriate, you should get the reasoning right.

It is because, outside some special cases such as child porn, the US government itself cannot be relied on to correctly distinguish speech that causes harm from speech that does not cause harm. There is a nearly endless list of historical examples right up to the present, for both false positives (banning legit speech), and false negatives (not banning hate speech). This unreliability is deemed by the SCOTUS to include expressions of religious hatred. Furthermore, it’s not even certain that suppressing hate speech is effective at stopping hate movements.

In my personal opinion, one of the main downside scenarios of banning speech deemed harmful by the government is that a well-meaning but misguidedly conservative government, such as, for example, post 9/11 Bush Administration (as well as the mainstream media during that time) – will use it to silence critics, claiming exemptions to the first amendment on national security grounds. If someone can find a way to prevent this scenario, yet still expand the government’s power to make judgments over what is harmful and what is not, they should be really clear about how they think that’s going to work, because this deserves some extremely careful and sober thought.

PS- If the hate speech crosses the line into intimidation, incitement, etc, there is ample ground to ban it. An obvious case of that is when hate groups combine what are currently their legally established first amendment rights, with second amendment rights to carry weapons. The combination of the two sure looks like intimidation, and should IMO not be allowed.

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