If you thought the First Amendment prohibited punishing hate speech, you’re right but someone missed the memo.
It is so easy to say, “The courts will never allow that. They will strike it down.”
But in reality, every time a prosecutor finds a way to punish hate speech he is giving the courts an opportunity to change their minds and overturn the Constitution. They will never admit that they are doing so, of course. But they could always find that there are exceptions in the First Amendment, for hate speech, that no one ever noticed before.
We already have prominent media propagandists pretending that everybody knows that hate speech is not covered in the First Amendment. If the courts criminalized hate speech, how many Americans would realize that a basic part of the Bill of Rights had been overturned?
It is a threat to all of us to have prosecutors devising ways to criminalize hate speech.
In Montana, the prosecutor is using defamation as his method for doing so. According to Eugene Volokh at the Washington Post:
The prosecutor’s office in Flathead County, Montana (where Kalispell is located) is arguing that speech that exposes Jews — or other religious, racial, and other groups — “to hatred, contempt, ridicule, degradation, or disgrace” is criminally punishable, unless it consists of true factual statements. As the Montana criminal defamation statute is worded, this means that hatred-inducing opinions are criminally punishable, too. Yes, this is that extraordinarily rare thing: an American prosecution for “hate speech” (State v. Lenio). The First Amendment doesn’t allow that.
The tool the prosecutor is using is an incredibly broadly worded defamation law in Montana. Volokh contrasts it with the much more standard law in Utah.
The statute is limited to false factual assertions. It requires a showing that the speaker knows the statement is false, and isn’t just mistaken (reasonably or not). And it requires a statement about a particular person.
The Montana law seems to not have any such limits. Any statement that the state can claim is false and that causes “contempt” to fall upon a “group” can be prosecuted. Of course, no one has ever applied the statute this way before, but the wording allows for it.
All of this was done to prosecute some spiteful twitter user who actually advocated violence in some of his tweets. But the prosecutor, rather than dealing with the threats, is instead going after many other statements, including the twitter user’s holocaust revisionism and other remarks. According to the prosecutor, Volokh writes,
even if the threats had been omitted, then according to the prosecutor’s theory the threat-less statements, e.g., “#Copenhagen It’s important to note that jews hate free speech & are known bullsh-ters, could be #falseFlag,” would still be criminal defamation. Likewise, similar statements about other groups, not just racial or religious groups but any group (professional, partisan, etc.), would be criminal, too.
Are these remarks hateful? Sure. But are they punishable by the state of Montana. No they are not—not if the First Amendment applies to state governments, which (rightly or wrongly) has been the interpretation of the Bill of Rights in light of later amendments to the Constitution.
This is a truly dangerous development. The feds are already tracking hate speech. They truly want to find a way to prosecute people for saying things that are “false”—like “Caitlyn Jenner is really a man.” A case like this could be a game changer.