- - Wednesday, October 25, 2017

There is a growing belief, particularly among America’s millennial generation, that there should be limits on free speech. These millennials and their fellow travelers have embraced the idea that there is certain speech — spoken or written — that is offensive enough to be unworthy of protection under the First Amendment.

Many will point to the recent ugliness in Charlottesville, Virginia, and argue that the right to express yourself freely in the public square begets danger, and thus is not as valuable as protecting those who are targets or victims of inflammatory rhetoric.

A surprising number of students at no less an institution than Yale University enthusiastically signed a petition from filmmaker and satirist Ami Horowitz in 2015 calling for an outright repeal of the First Amendment. Mr. Horowitz said a “solid majority” of Yale students he approached supported the repeal, and that it took just one hour for him to collect 50 signatures.

Is the idea of an outright repeal, or an exception for “hate speech,” defensible?

Supporters of the idea argue that words can lead to violence. Furthermore, they assert that even our strongest, most reliable allies such as England, France and Germany do not have constitutionally protected speech. In those countries, one can be prosecuted for spoken or written words. So why should the U.S. be different?

To be clear, there are exceptions to this “absolute” right. Child pornography, blackmail and perjury are not protected speech. And neither are words that directly incite violence or mayhem. In an opinion issued in 1919, Justice Oliver Wendell Holmes famously pointed to “falsely shouting fire in a crowded theatre” as an illegitimate application of the First Amendment.

But the highest form of protected speech is political speech. The Founders and Framers of the U.S. Constitution had just fought a war over their right to dissent and separate from the British Crown, and they were intent on allowing the type of political expression forbidden by their English overlords. And yet, it is just such political speech that many now seek to limit.

So let us suppose for a moment that the Constitution was amended to prohibit “hate speech.” What specific words or phrases would be labeled as hate? Would context matter? How would such a prohibition be enforced?

Most importantly, who would decide?

The federal government could establish some sort of commission charged with determining which speech represents hate and which does not. Alternatively, a blue ribbon commission of leading Americans from various walks of life could meet and issue recommendations.

Imagine the arguments that would ensue. Conservatives and liberals would battle endlessly about who should be selected to sit in judgment of the speech of their constituents or fellow citizens. Those on the left would likely focus on references to race and ethnicity. Those on the right might set their sights on false accusations of racism or sexism (which might also enter the realm of libel and slander). Each of the various identity groups would weigh in with their own demands and definitions of hate speech.

Lawsuits based on the new limits on speech would abound. Without absolute statutory parameters, judges would make their own subjective determinations in cases which come before them. That would dramatically increase the already loud cries about judicial bias.

State and local jurisdictions could apply the new hate speech exception as they see fit, but that might well trigger conflicts with the Constitution’s 14th Amendment, which guarantees equal protection under the law for all citizens.

Over the 240 years of this radical experiment called a constitutional republic, there have been attempts to limit speech. Just two years after the ratification of the U.S. Constitution, the Alien and Sedition Acts were advanced by Federalists and passed into law, effectively equating certain political criticism with treason. In the aftermath of the Civil War, a labyrinth of oaths and affirmations of loyalty were introduced by self-identified “Radical Republicans.” Neither of these efforts were received well by the citizenry, and both ultimately failed.

When it comes to the value of free speech and the consequences of its limitation, we would do well to consider the words — and stand on the shoulders — of great Americans who have come before us.

Supreme Court Justice Louis D. Brandeis said, “It is the function of speech to free men from the bondage of irrational fears.” Further back in our history, Ben Franklin stated, “Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.”

And Franklin made another key observation about the need for a free press (and thus free speech) by saying, “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.”

But one of the most passionate defenders of free speech was the very father of our country and first president, George Washington, who warned: “If men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.”

Tim Donner is the President of One Generation Away, and a Washington political columnist for LibertyNation.com. He is also longtime entrepreneur, broadcast journalist, conservative public policy advocate and former U.S. Senate candidate from Virginia. He established Horizons Television, which specializes in documentary, educational and promotional video production, and has served as a trustee for several organizations, including the Virginia Institute for Public Policy, Radio America and the National Mental Health Association.

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