A leftover from Sunday that raises anew a question about our political leaders with which we’re all familiar: Malice or ignorance?
I’m willing to apply Hanlon’s Razor here and assume that Hochul doesn’t know what she’s talking about. No one ever went broke betting on the ignorance of politicians, after all.
But she’s a law-school graduate. And free speech isn’t an esoteric topic in our politics. You don’t need a J.D. to have gleaned that there’s no such thing as “hate speech” under American law by the time you’ve reached late middle age.
So this is probably malice, not ignorance. She knows the truth. She just hopes the viewer doesn’t.
New York Gov. Kathy Hochul: “I’ll protect the First Amendment any day of the week. But you don’t protect hate speech. You don’t protect incendiary speech. You’re not allowed to scream ‘fire’ in a crowded theater. There are limitations on speech…” pic.twitter.com/PCay5LIX8R
— The Post Millennial (@TPostMillennial) May 16, 2022
Could she have misspoken? Not likely. She repeated the point in another interview on Sunday:
“We will protect the right to free speech, but there is a limit… hate speech is not protected.”
— Brad Polumbo 🇺🇸⚽️🏳️🌈 (@brad_polumbo) May 16, 2022
Another clue that Hochul wasn’t misinformed is the fact that a second statewide politician from New York with a law degree also resorted to distorting constitutional law in an interview on Sunday.
Tur continued, “Let’s talk about the social media platforms, going to 4chan, but it’s not even just in 4chan any longer, this idea of the great replacement theory, which –.”
[Kirsten] Gillibrand cut in to say, “It’s not about free speech, so let’s be clear.”…
Later, Tur asked, “Can you regulate speech on the Internet without violating free speech?”
Gillibrand answered, “You don’t have to regulate speech, you can regulate misinformation. You could say, you can’t yell ‘Fire!’ in a theater. You can — there [are] many ways you can abrogate speech rights that are consistent with the Constitution. And for, again, an 18-year-old to develop such hatred in his heart through media platforms that do not have any regulation is a problem. And so, we need commonsense, thoughtful regulation. We need a data protection agency that keeps our data private, that can create frameworks where this makes sense.”
Laying aside the creepiness of hearing a senator chirp excitedly about how much leeway there is in the First Amendment to regulate speech, it just ain’t true that “you can regulate misinformation.” A very limited class of falsehoods can be actionable under American law — defamation, most notably, and certain types of false advertising. But there’s no “misinformation” exception to the First Amendment any more than there’s a “hate speech” exception. Misinformation is almost always protected speech. And you know why: As we’ve seen on social media platforms, particularly in the Hunter Biden laptop episode, what’s suppressed as “misinformation” one day may turn out to be true the next. “Misinformation” is often in the eye of the beholder, informed by the beholder’s political prejudices.
As for the “fire in a crowded theater” rule, the Supreme Court ditched that when Gillibrand was a teenager. Again, ignorance or malice?
Kevin Williamson’s also leaning towards “malice”:
There is no such thing as “hate speech” as a matter of constitutional law in the United States, and the sort of thing that is classified as “hate speech” in countries that do have such laws is — pay attention, now — exactly the kind of speech the First Amendment is designed to protect: offensive, unpopular, detestable, the kind of speech that most people consider immoral and indefensible. The kind of speech nobody likes or wants is the kind of speech the First Amendment is there for — the other kind of speech doesn’t need any protection. Here is a useful heuristic: If you immediately want to suppress somebody’s speech, then that is probably the kind of speech the First Amendment was made for. We write down our laws for a reason, and that reason is because your gut instincts can’t be trusted and because we don’t want our civil rights to depend on whatever kind of daffy electrochemical misfire is happening inside that three-pound ball of meat Kathy Hochul calls a brain on any given Monday morning…
Kathy Hochul is an unserious politician representing an unserious party in an unserious state in a largely unserious country that is kept on the road mostly by sturdy guardrails inscribed in an 18th-century document that some guy wrote with a feather. Events such as the one in Buffalo require a serious response, but there is nobody around to provide one, at least not in elected office. What we have is mediocrities, demagogues, and grandstanding ghouls happy to climb atop any pile of dead Americans, no matter how high or how mangled, to do a little TikTok dance in the blood and sing a verse of “Happy Days Are Here Again.”
I think this is the liberal version of “she fights!” One way to show your own base how serious you are about their priorities in 2022 is to take the fight to the other party vigorously, without regard for constitutional “niceties,” shall we say. That’s what Ron DeSantis did when he yanked Disney’s special district after the company spoke up against the “don’t say gay” bill. It’s blatant viewpoint discrimination aimed at discouraging other businesses from exercising their free speech rights in a way that’s hostile to the right, but the fact that DeSantis was willing to cross that line only made Republicans relish the discrimination more. He fights. No RINO constitutional rules will stop DeSantis from prosecuting the culture war.
Hochul and Gillibrand are probably going for something similar. Democrats believe the massacre in Buffalo was a foreseeable result of “great replacement” rhetoric from Republicans, not just too-lax gun laws. What better way to take the fight to the right and show their base how serious they are about restricting GOP incitement than insisting that the First Amendment doesn’t — or shouldn’t — permit “hate speech” or misinformation? Nothing says “she fights!” like signaling your willingness to deprive your political opponents of their constitutional rights.
Besides, they’ve probably seen the polling within their own party on the subject. Modern liberals are willing to give Uncle Sam a wide berth in restricting “false” information:
Any laws they end up passing are going straight down the toilet when they reach the Supreme Court, probably with more unanimity than the usual conservative/liberal blocs on the Court can muster. But who cares? The underlying message here, that the American right is collectively insane and racist and warrants censoring as a matter of civic hygiene, will still be communicated by trying. They fought!