Even hateful, hurtful and harmful speech is protected speech

It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us a modern definition of the freedom of speech.

Brandenburg harangued a crowd in Hamilton County, Ohio and urged them to march to Washington and take back the federal government from Blacks and Jews, whom he argued were in control. He was convicted in an Ohio state court of criminal syndicalism — basically, the use of speech to arouse others to violence.

The Supreme Court unanimously reversed his conviction and held that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it. The same Supreme Court had just ruled in Times v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic and unbridled speech.

The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all persons have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.

Yet in perilous times like the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protesters with whose message they agreed and to disburse critical protesters. We have seen mobs silence speakers while the police did nothing.

Punishing speech is the most dangerous business because there will be no end to it. The remedy for hateful or threatening speech is not silence or punishments; it is more speech — speech that challenges the speaker.

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