Kathy Griffin and the severed Trump Head

There Is No Such Thing As Hate Speech


It’s a figment of your imagination

Social media is getting lit right now with a stupid photo of comedian Kathy Griffin holding up a severed Trump head.  The ISIS-inspired pose is meant to resurrect Griffin’s relevancy, as she hasn’t put out a special hardly anyone’s watched for ten years.  With the photo circulating, she’s getting overshared and people are talking about her.  Negatively or positively–it’s all money in the bank for her, someone with money to blow will realize she’s still around and give her a gig.

But beyond this, that oversharing of the photo and its selective celebration is a really good example of something more mundane; there’s no such thing as hate speech.

As Philadelphia is the birthplace of the Constitution (New York City was where the Bill of Rights was created), it seems fitting to explore this thought some more.

His childhood photos are gonna live forever

His childhood photos are gonna live forever

Oh sure, you can define it

In a fun fail of the First Amendment, Portland Mayor Ted Wheeler hilariously got the country’s founding document dead wrong, saying “hate speech is not protected by the First Amendment” in reference to a planned Trump rally.   Surprise, loads of speech, including most hate speech is absolutely guaranteed protection under the First Amendment.

For some of you that’s probably not what you want to hear.

Let’s examine why it’s protected.  In order to do that we have to ask ‘What is hate speech?’

If we reach for our first cousin the United Kingdom, who does have hate speech laws on its books and enforces them (I’ll get to that in a sec), their government after multiple amendments defines it as this:

Any criminal offence which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice towards someone based on a personal characteristic.

This is an extremely subjective definition of a crime.  First off, this definition of a crime requires no evidence.  It actually forces the government to not question the victim.  Neither can a defendant who is accused of such a crime ever question whether the beliefs or convictions the victim holds are real.

I’m sure many of you on the far-left have no problem with this, so let’s move on to an image many of you have seen before:

This “art” is an image many people within and outside of the Black Lives Matter movement sympathized with.  It also debuted near the same time as a sniper in Dallas took advantage of a BLM rally last summer and began shooting police officers.

Imagine what power the police would have since they are ultimately the folks who would be responsible for handling hate speech complaints.  Whatever subjective definition is written into a hate speech law, and if it’s as terrible as the one the UK operates under, this gives the police wide discretionary power to:

  • manufacture a victim — plenty of people were offended by that art
  • gather a complaint from the victim — and the police cannot nor do they have to validate the authenticity of any victim under the UK standard
  • proceed to prosecute the artist who made the image

Doesn’t sound that great, does it?

It’s impossible to objectify the subjective

The First Amendment makes magnificently horrible speech laws like the UK’s impossible to withstand constitutional scrutiny.  Indeed there have been attempts, not just in recent times but in ages past where state legislatures and the Federal government have attempted to invoke speech codes.

It was only a couple years ago that former Governor Corbett of Pennsylvania rushed to sign the “Muzzle Mumia” law, an overly-broad and badly-worded two page bill that was designed to shut up a single prison inmate: Mumia Abu-Jamal.   The law’s text actually permitted crime victims to civilly sue an individual for as many times as they want for “conduct that perpetuates the continuing effect of the crime on the victim,” whatever that means.  The law doesn’t even confine the suit to prison inmates, but to anyone.  As it’s worded, just mentioning the perpetrator’s name could be grounds for a suit.  Thankfully, the ACLU and a Federal judge made quick work of this law and threw it in the garbage.

Maureen Faulkner on TV

Maureen Faulkner on TV

Why would such a stupid subjective law be put on the books in Pennsylvania in the first place?

Maureen Faulkner, widow of police officer Daniel Faulkner was out on the campaign trail with Governor Corbett when he was seeking re-election.  After a tiny liberal-arts college decided to use a pre-recorded audio tape of Abu-Jamal as their commencement speaker, this sent a lot of outrage throughout the Philadelphia Police Department.   As it was an election cycle, this provided a perfect stage for legislators and the governor to get behind a piece of dog-whistling legislation.  Maureen Faulkner came along for the ride.

Many of the folks who perfected the Muzzle Mumia law are sitting legislators in Harrisburg right now.  They’ll be the ones you turn to if you’re pushing for hate speech codes.  Do you think they’re not more than happy to classify all sorts of speech you agree with as hate speech, especially negative views of cops?  They already did it once.

Again, what is hate speech?

The predicament “policing” hate speech faces is that it’s always subjective.  That appears to be a permanent feature.   We make very fast work of mischaracterizing disagreeable speech as ‘hate speech’ and sometimes have a hard time distinguishing the two concepts.

There are all sorts of tweets and musings I would love to classify as hate speech so I don’t see it anymore.  I might not even care that those speakers get locked up.   Would I shed tears if the Phelps family were put away?  Probably not.  Though when Rebekah Phelps-Davis delivered the oral argument in Snyder v. Phelps, my sympathies turned to the same spewers of hate I have despised for ages, Westboro Baptist Church.  The Phelps case only re-solidified the right to protest in a public place no matter how offensive a jury, or law enforcement, finds the message.   That principle and right is far more important than seeing Mr. Snyder score a gigantic jury award, so no wonder the Supreme Court sided with Westboro in an 8-1 decision.  Sorry, Ted Wheeler.

There’s all forms of speech which I consider outright dangerous, much of it coming from people who profess to know God.  That leads to another singularity: people who you are not going to agree with politically would leap to take part in shaping the standards of what is and isn’t classified as hate speech.  That’s pretty dangerous if you’re on the “wrong” side of any politically-charged issue.

And if we’re talking about taking away someone’s freedom, their income and suspending their rights the last reason ever should be because they hold unpopular beliefs.  Even if they’re morally-corrupt.  Or for others, so morally righteous they see everyone else as morally bankrupt.  And the same holds true even when those voices are bigoted ones.

We’re nowhere close to any sort of national consensus that a gaping hole should be blasted into the First Amendment to allow politicians and their special committees to codify what people are allowed to say so as not to cause offense, nor deny defendants their due process in sham trials where only one witness need be called, the victim, with no need to corroborate their story.  Nor will any such law that attempts to do so ever be valid for very long.   Part of the reason the political far-left and far-right can even voice their ideas to begin with is because of the way the First Amendment stands.  Blowing a hole in the First Amendment so that both these extremes can get at each other vis-a-vis police power is an invitation to disaster.

So what should we call hate speech?   How about what the law says it is: it is speech.

That’s all it is.   Like porn, televangelism or Kathy Griffin’s desperate attempts to keep her career relevant, you don’t have to subscribe to any of it.  You can also criticize her for it.  That’s also considered speech.  Or if you agree with it, you could celebrate it and put it on a t-shirt.  That’s speech too.


— Philadelinquency knows a thing or two about the First Amendment.  This blog has been sued, and won, in Federal Court over it.   We keep two First Amendment lawyers on standby just to keep this site up.