Hate Speech and Constitutional Flexibility

I was surprised when I was skimming Rep. Reed’s Facebook page and saw a comment that referenced New NY 23rd.

The Headline read:

“Horror: 41% of Americans Want Free Speech Restrictions”

And among the Democrats polled?

51% favored restrictions on Free Speech!

On his web site, frequent partisan anti GOP poster, NY23, says ” It’s the 1st amendment for a reason!”!

Looks like you have some work cut out for you among your fellow Democrats, NY23! 😉

I had to bite…I clicked on the link, read the article, then responded:

hate-speech-is-not-free-speechThe New NY 23rd Tom, thanks for promoting the New NY23rd. Since we are not ‘Facebook friends’ I can not Share this on my face book page. Would you do that for me? The first amendment has been limited probably from day one. The often used example is that you can’t yell “Fire” in a crowded theater (unless there is a fire, of course). We can’t publish lies about a person (libel) or tells lies (slander). We can’t own, print, promote child porn. In a reaction to protests at the funerals of fallen soldiers municipalities can limit where and when we can protest. I believe the making “make public comments intended to stir up hatred” that your article refers to might be considered to fit in with those restrictions.

Tom‘s response:

Nice try NY 23rd, but no cigar. I am well aware of the classic examples you cite of accepted limitations on free speech. That doesn’t change the fact that the current push to limit MORE free speech is coming from the Left and the rationalization for those limitations is based upon fighting “hate”. One problem with that is …WHO gets to define what constitutes “hate speech”? You guys on the Left have been pushing that to the point of being ludicrous, trying to define anyone who disagrees with you as a “hater”! You know what? To me, anyone who promotes class warfare and envy with talk about income inequality is a “hater”! How about we prohibit THAT kind of speech and lock up anyone who promotes socialism? When you start labeling opinions you disagree with as “hate speech”, you are starting down a slippery slope that could end up biting you back. As someone who supposedly supports the 1st Amendment on your Facebook page you should know that! I expect better from a supposed supporter of Free Speech than rationalizations for MORE limitations upon it!

Tom’s friend Joseph added…

Very well stated Tom. NY 23rd seems to forget that more than a few of the Left leaning individuals who comment on this page do so with vitriolic rhetoric that would be banned as “hate speech”.

And then their friend Dave gave a comment:

Lets start limmiting speech that is untrue. Lets start with the current administration. You can’t yell fire in a crowded theather if there is no fire, but you can hollar “you tube vidieo” when a embassy is attacked overseas to midigate the politcal negative effects on an upcomming election? Is that speech OK with you 23rd?


I have never met Tom, John or Dave, but I know people who are a lot like them.

 Tom’s concern is that  “hate speech law”  limits our rights of free speech, and asked, “WHO gets to define what constitutes “hate speech”.  Joseph told that there have been  some left leaning comments on Rep. Reed’s Facebook page which should* would be banned as “Hate Speech”.  Dave suggests limiting  speech that is untrue.

(Joseph contacted me and pointed out that there is a difference between “should be banned” and “would be banned”. I agree, my mistake)

(Please note that Rep. Reed’s Facebook page states: “Comments that attack or are intended to harass an individual, group, or organization are unacceptable and will be promptly removed.” and “Content that is explicit, racial, or vulgar in any form as well as campaign references will be removed.”)

Do they  really want a constitution to be inflexible? Those who do want to believe that the 18th Century Second Amendment is suitable with the weapons of the 21st Century. Those who do believe that only those adult males who own land can vote, and those who do feel that there is no need to have laws/regulations on automobiles since they were not mentioned in the Constitution.

The brilliant Framers of the Constitution knew their documents had to have flexible built into it to allow the government to adapt with the changing needs of society.

How is our Constitutional flexible?

The Amendment Procedure–To change the Constitution directly, it needs to be approved by 2/3 of the members of both chambers and 3/4 of all states.

The Elastic Clause in the Constitution—”Congress shall make all laws necessary.”

Unwritten Constitution—refers to the ideas and processes that are accepted as a needed part of American government, regardless of the fact that they are not actually in the Constitution. These ideas and processes came about through the custom and precedent.

Judicial Review—When there is a law that may contradict parts of the constitution,  the Court would review it and  approved it in person.

Those governmental concepts are taught in New York State’s High Schools. The following video is a teacher reviewing these topics for his students.

Today (June 18, 2015) the Supreme Court decided that a state (Texas) does not have to offer a speciality license plate with a Confederate Flag. That was presented as a First Amendment issue.

New situations will arise and Judges will compare them to the Constitution. Our Constitution will evolve.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.– The Court and Constitution from The Supreme Court of the United States of America website.

 *(Joseph contacted me and pointed out that there is a difference between “should be banned” and “would be banned”, which is what he really said. I agree, my mistake –6/20/15)

About pystew

Retired Teacher, political science geek, village trustee. I lean a little left, but like a good political discussion. My blog, the New NY 23rd (http://newny23rd) is about discussing the issues facing the people of our new congressional district. Let's hear all sides of the issues, not just what the candidates want us to hear.
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23 Responses to Hate Speech and Constitutional Flexibility

  1. josephurban says:

    Excellent explanation of free speech and how the legitimate parameters of free speech are determined. You hit the nail on the head. The final arbiter is always the SCOTUS.
    When you read the headline: 41% of Americans favor restrictions on free speech ! I am also surprised.
    What is wrong with the other 59% ? The statistic is disturbing for exactly the opposite reasons as those presented by Mr Reed. Do these Americans favor unlimited “free speech”? Really ? Do they hold that anyone can say anything about anyone at any time and any place? Really? 59% of Americans support slander ? Libel? Kiddie porn? 59% of Americans would support a citizen openly calling for the murder of a congressmen?
    Of course, like all polls, we need to see what was actually asked, how it was asked, etc.
    Your response is perfect to the line of neoconservative thinking that has somehow evolved into this logic(?):
    1. I have legal rights.
    2. I have no legal limits on those rights.
    3. I , therefore, have no responsibilities except to fully exercise my unlimited rights..
    4. Any attempt to limit my rights in any way is an attempt to take away ALL my rights.
    Of course, this implies there is no “social contract” and that other people do NOT have rights.

    Is it not ironic that the very same folks who demand unlimited “rights” for themselves are often the ones who demand the exclusion of others from exercising their rights? They oppose a woman’s right to her own body and medical care, a homosexual’s right to serve in the military or get married, a poor child’s right to food or medical care, a homeowner’s right to have a safe, clean source of drinking water, etc.


  2. Anne says:

    For anyone with an interest in delving more deeply into the many facets of the whole issue, this is an excellent resource: http://www.newseuminstitute.org/first-amendment-center/


  3. whungerford says:

    Here is the court’s opinion and Justice Alito’s dissent in the Texas license plate cast:

    Click to access 14-144_758b.pdf


  4. whungerford says:

    The court’s opinion was that the license plates are Caesar’s so let Caesar do what Caesar likes. Justice Alito writes that the plates are clearly speech. I think the majority recoiled from recognizing such speech as private speech–after that could a town post a Smokey the Bear poster in the townhall without allowing any and all other posters? I wonder how former justice William Douglas, known as a First Amendment absolutist, would have voted on this.


  5. josephurban says:

    I had my license plates stolen once from my car. When I called the police in Rochester, NY I was informed that the plates did not belong to me, they belonged to the state of NY. If other states take the same view I suppose there is no “right” to have anything on the license plate except what the state deems appropriate. Not an infringement on free speech, just a license. Nothing in the SCOTUS decision prevents anyone from putting their bumper sticker on their car. To me, this lawsuit was a good example of what my right wing friends would call a “frivolous” lawsuit. Wasting time and money.


  6. whungerford says:

    Does the First Amendment allow a townhall to have a bulletin board, as I believe some do, where people can post notices, if the town removes those deemed offensive?


  7. Barbara Griffin says:

    Acknowledging the fact that the 23rd voted Tom Reed into office saddens me to no end.


  8. philebersole says:

    I believe there is a fundamental human right, as well as an American Constitutional right, to peacefully express any opinion whatever, subject to accountability to reasonable laws of libel and slander and provided that you neither practice nor advocate violence.

    There are a lot of foolish and malicious people in the world whom I wish would shut up, but I would not trust myself nor anybody else with the power to shut them up.

    I think hate speech legislation is likely to backfire, and to be used for purposes not intended by its advocates—for example, against BlackLivesMatter protestors with grievances against white people.

    I am bothered by the phrase “Constitutional flexibility”. It implies that the Bill of Rights are not law, but merely a set of preferences.


  9. josephurban says:

    phil. Don’t be bothered by the term “constitutional flexibility”. It is at the core of the Constitution. The concept that the document is not a holy scripture but a political plan of government. Made by men. Who were just lawyers and plantation owners, not gods. Fallible. And men of their time period, not men of the future. It is because of the flexibility that it has endured. It does not imply that the Bill of Rights are not the law. It implies that all law must fit the times. The rights in the Bill of Rights have always been subject to interpretation for the simple reason that rights will collide . That is where the SCOTUS comes in.


  10. philebersole says:

    Of course the Supreme Court and the other federal courts have the right and duty to decide how the law applies to particular cases, to decide what the law means when it seems ambiguous and to reconcile conflicts in the law. I’m sorry if you thought I denied something so obvious.

    What I don’t think the Supreme Court or anybody else should do is to decide that the law applies in one way to nice people and in another way to bad people. The original post argued that First Amendment rights to do not apply equally to everyone, and ridiculed Rep. Tom Reed for saying otherwise.

    I follow Justice Oliver Wendell Holmes Jr. on this.

    If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought of those we hate.
    ==Oliver Wendell Holmes Jr. (1841-1935)

    I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country
    ==Oliver Wendell Holmes Jr. (1841-1935)


  11. philebersole says:

    This comment is aimed at Rep. Tom Reed and his friend Dave. You suggest as a hypothetical example that if the law outlawed expressions of hate directed at minority groups, it also could outlaw expressions of hate directed at the nation’s financial elite.

    I don’t think this is a hypothetical situation at all. Harmless Occupy Wall Street protestors were beaten, arrested and abused for the peaceable expession of their opinions. When presidential candidates are in town, peaceful demonstrators are confined to “free speech zones” far out of sight—as if the whole United States of America is not a free speech zone.

    Peace advocates, environmentalists, civil rights advocates, animal rights advocates who peaceably assemble for redress of grievances are frequently treated as domestic terrorists. There are state laws that make it a crime is disparage a state’s agricultural produce.

    You rightly state that the First Amendment applies to the so-called politically incorrect. I agree with that. The First Amendment applies to unpopular people and even despicable people. It would be meaningless if it applied only to nice respectable people.

    Do you also agree with me that the First Amendment applies to left-wing extremists (however defined) as much as to right-wing extremists?


  12. josephurban says:

    I referred to the concept of “Constitutional flexibility” which you suggested meant that the Bill of Rights were only a set of “preferences”. I disagree. I simply pointed out that when rights collide, as they always do, the Constitution is open to interpretation by the current SCOTUS. And as times change, as they do, the Constitution remains “flexible” in the sense of interpreting rights to fit the times. I don’t think that there are any “absolute” rights granted in the Bill of Rights. Perhaps I am mistaken. I can’t think of one.
    Like you, I agree with those two statements from Justice Holmes. We should hope that the SCOTUS interprets the Constitution in a liberal way when it comes to granting rights.
    I think that “hate speech” is extremely difficult to define on the edges. Reminds me of the statement by Justice Stewart (also attributed to his clerk, Novak) about pornography. “I can’t define it, but I know it when I see it”. I would not like us to take the path of prohibiting offensive speech unless it is explicitly designed to provoke or promote violence.


  13. whungerford says:

    As a point of clarification, the Tom mentioned in the article is not Rep. Tom Reed.

    The Pennsylvania law baring doctors from discussing fracking chemicals making patients sick seems to me to violate the First Amendment. But what about laws creating zones around clinics or funerals? First Amendment absolutist would object to both, I suppose. What about the Texas license plate case; was that correctly decided?


  14. josephurban says:

    I think there is a distinction between the state sanctioning certain types of speech and individuals having the right to express themselves. The Texas license is a state license designed to identify a car. Texas can limit the type of message it allows. Any Texan, however, can put a bumper sticker next to that license plate.
    Zones around Planned Parenthood. The state has an interest in keeping the peace. And in making sure that women are able to safely receive health care without being intimidated. Balancing that with the protesters rights to peacefully protest without interfering with the women or access to the clinic. Same with funerals, which are actually private events.
    The Confederate flag is another issue. Should the state be sanctioning a flag which symbolizes treason and racism? It is one thing to allow private citizens to fly the flag, quite another for the government to endorse it and the ideas it represents.


  15. whungerford says:

    In his dissent, Justice Alito argued that by allowing some messages Texas was obligated to allow all messages–no discrimination based on content. One solution would be for states not to allow messages on license plates. As for the Confederate Flag, I don’t see that as a free speech issue. SC can do what they like just as Texas can, even if unwise.


  16. philebersole says:

    Thank you for the clarification. I glad we agree that the First Amendment covers the right to peacefully express any opinion, providing the person does not practice nor advocate violence.


  17. philebersole says:

    I agree that the First Amendment does not establish a right to disrupt funerals, nor to harass people entering clinics. Neither of these things has to do with the content of the ideas being expressed


  18. philebersole says:

    Needless to say, I think the Pennsylvania law regarding fracking chemicals is an outrage, as are the various state laws regulating what doctors can say to patients regarding abortion.


  19. whungerford says:

    On June 18, Rep. Tom Reed spoke at AGA’s Natural Gas Roundtable event. A protester interrupted his speech and was dragged out by the police. Was this legitimate because the protester spoke out of turn, or illegitimate because his views likely were offensive to Reed and the AGA? Had he interrupted with applause, it would likely have been little noticed.


  20. josephurban says:

    I did not see the incident so I don’t know how disruptive this person was. That said I don’t think anyone has the right to shout down a speaker. Picket outside the event. Hold signs. Ask tough questions (if there is a question-answer period). But do not disrupt.


  21. whungerford says:

    At a town hall meeting in Big Flats, a constituent waited patiently for a chance to address Reed on the subject of fracking. Near the end of the meeting when she finally was recognized, he rudely told her that he already knew her story and didn’t want to hear it again. When others objected, he allowed her to speak standing with folded arms and evident disdain. At these meetings Reed says what he wants, while opportunities for rebuttal are minimal at best. Reed says he values the views of constituents, but there is little evidence of that.


  22. pystew says:

    I posted a link to this article on Rep. Reed’s Facebook page,and Tom replied questioning my courage to defend the first amendment. Here is my response:

    “There is a fine line between “Courage” and “Foolish”. You may want to question my character from cyberspace, and live in your utopian world, but I live in the 21st Century reality. As a Village Trustee, I had to decide to stand up for the Full Freedom of Speech Principles–and lose–or to compromise and permit Free Speech except in a limited area.

    The situation dealt with Protests at a Funeral Event. The proposed village law would deny Protests 2000 feet from a funeral event, which is twice as far as any Buffer Zone I researched. I was able to knock the proposal down to 1000 feet, which is 1000 feet more than we need since State Law provides a smaller distance (300 –one football field–if I remember correctly). I could have been idealistic and just voted NO and it would have been a 6-1 vote to have the 2000 feet Buffer Zone radius.
    I realized that the family has an expectation of respect, and the protest could still occur, but not on the sidewalk next to the Church or in the cemetery. Being idealistic is wonderful, but sometimes we need to be pragmatic. (In reality the original wording of the proposed law would include any protest—even my NO FRACKING yard sign wold need to be taken down during a funeral event since I live less than 2000 feet from the cemetery and the local Catholic Church. That would have passed, 6-1, if I didn’t convince them to compromise.)”

    It is easy to sit back and complain.


  23. philebersole says:

    The discussion is drifting away from the question raised by the original post, which is whether bad people enjoy the same First Amendment protections as good people.

    I do not think there is a constitutional right to heckle and interrupt speakers. I think that people who arrange a public event have authority to set the rules as to who gets to speak at the event.

    If I were giving a speech against fracking, and some pro-fracking person interrupted me, I would offer to answer that person’s questions at the end of my presentation. I would not have the person dragged away by security unless the person’s interruptions actually prevented me from giving my talk.

    One good way to express dissent from what a speaker says is to pass out leaflets to people entering and exiting the auditorium.

    I think it strange to hold a “town hall meeting” and then refuse to listen to someone who speaks at such a meeting. The whole point of a town hall meeting is to allow everyone to ask questions and express their opinions.


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