Scott Shackford’s article about Portland mayor Ted Wheeler deftly defines the difference between hate speech and incitement to violence. After two people died in a knife attack on a Portland train, Wheeler wants to deny two alt-right groups permits to assemble for rallies. He says bigots have no place in Portland, that their ability to promote their views must be stopped.
In politics, only incitement to violence is unprotected speech. To take a simple illustration, “I hate white Christians” and “Kill white Christians now” do not signify the same thing. First Amendment rights protect the first statement because it expresses an individual’s state of mind. The Constitution does not protect anyone who advocates murder, because you cannot urge others to commit violent crimes.
Strong voices on college campuses and elsewhere urge the use of violence to stop what they call hate speech. The student riot at Middlebury College exemplifies this confusion about what the Constitution protects and what it does not. Student thugs claim that because Charles Murray’s ideas amount to hate speech, wanton behavior that culminated in physical attacks on Murray and his host was justified to prevent his talk.
That turns the relationship between use of force and free speech on its head. Under our Constitution, we invest the state with authority to prevent violent suppression of speech. To quote Shackford: “Protecting these rallies is one of the reasons taxpayers are asked to fund the police. Making sure violence cannot be used to suppress our rights to speak freely and to practice our various religions is one of the reasons we have a government police force.”
We’ve already seen, at UC Berkeley, what happens when university security services decline to do their jobs. They turn the campus over to rioters. Wheeler ought to consider what happened at Berkeley, and prepare his police forces to head off violence at political rallies in his city. To do otherwise is, as Shackford points out, lazy. The Oregon ACLU’s succinct summary of the case against Mayor Wheeler puts it another way: “The government cannot revoke or deny a permit based on the viewpoint of the demonstrators. Period.”
Hate speech, and its cousin hate crime, have distorted our thinking about permissible and impermissible behavior for a long time. Activists insist hate speech deserves no protection. Moreover, hate crimes deserve extra severe punishment. Both arguments are spurious. The First Amendment does not distinguish between hate speech and other kinds of speech. I’ll leave hate crimes alone for the moment, except to say that when a mob lynches somebody, the crime speaks for itself.
People who want to suppress hate speech – violently if necessary – apparently believe transitions between hateful expressions and incitements to crime are clearly drawn. Criminal and constitutional courts do not care to deal in these kinds of ambiguities. Political speech – except for incitement to violent crimes – receives unqualified legal protection. By contrast, perpetrators of violent acts against other people are prosecuted. The law does not care to prevent speech merely because it sounds hateful. That is why activists – whether on campus or in the mayor’s office – want to act against disfavored speech outside the law. They cannot shut it down any other way.