Wednesday, December 7, 2022


“Those who lack the courage to change history are sadly doomed to become its objects.”
— The Rev. Alfred Delp, S.J. (1907-1945)

Not too long ago, it was considered unfashionable to discuss the Nazis in Germany of the 1930s and ’40s in terms of anyone’s present-day behavior. The Nazis were the most depraved monsters in modern history, the argument went, whose horrors could not rationally be compared to anyone’s behavior today.

Well, just last week, the infamous Ye — the rapper formerly known as Kanye West — told Alex Jones that he admired Hitler and liked the Nazis. This was shortly after Ye and his Holocaust-denying friend Nick Fuentes dined with former President Donald Trump. And the Trump/Ye/Fuentes dinner was preceded by a week of Mr. Trump’s public call for the “termination” of the Constitution and its guarantee of the freedom of speech. And all that preceded Ye’s posting on Twitter of a Star of David superimposed upon a swastika and Elon Musk’s subsequent suspension of Ye’s Twitter account.

What’s going on here?

What’s going on are variants of hate speech. In Ye’s case, it is hatred for the Jewish people and the natural law. In Mr. Fuentes’ case, it is hatred for the Jewish people and the truths of history. In Mr. Musk’s case, it is hatred of hatred but also of freedom of speech.

Is hate speech protected by the First Amendment? In a word: YES.

Here is the backstory.

Under natural law principles — the belief that our individual rights come from our humanity — all people can think as they wish and say what they think and publish what they say without a government permission slip and are immune from the interference of anyone else. The signatories of the Declaration of Independence and the framers of the Constitution, and the ratifiers of the Bill of Rights fervently believed this.

The declaration pronounces our rights to life, liberty and the pursuit of happiness as inalienable. The Constitution theoretically separates, divides, checks and balances government so as to deter the accumulation of too much power in one place. We all know how that has worked! And the Bill of Rights openly restrains the government from interfering with fundamental individual liberties, even liberties unarticulated in the Constitution.

So, the First Amendment doesn’t grant the freedom of speech; it prohibits Congress from interfering with it. The 14th Amendment and definitive judicial interpretations have imposed the same prohibitions on all levels and all branches of government.

What about speech that hurts by its very utterance? What about hate speech?

Hate speech articulates an intense or passionate dislike of a person because of a group to which the person belongs. Membership in the group is often immutable, such as race, place of birth or ancestry, and the speech is often so intense as to be immediately intimidating or threatening. Hate speech is also hurled because of personal characteristics, some individually chosen and some chosen by nature.

I am not talking about acceptable hatred — hatred of sin or evil or hatred of hatred. I am talking about the hatred of human beings.

Speech articulating hatred of human beings is morally repugnant because people change, yet it is still only speech. Thomas Jefferson offered that hate speech didn’t bother him because it neither picked his pocket nor broke his legs. Yet his predecessor in the presidency, John Adams, signed into law and enforced the Alien and Sedition Acts, which punished speech that aroused the hatred of the government.

Both swore allegiance to the Bill of Rights. One was faithful, and one was not. That ambiguity from the government has persisted to the present day, notwithstanding Supreme Court decisions protecting hate speech.

When Mr. Musk acquired Twitter, he claimed that the new Twitter would be a free marketplace of speech, yet he banned both Ye and Mr. Jones based on the content of their speech.

The theory behind protecting hate speech has several levels. One is that speech is a natural extension of thought, which requires no permission slip. Another is because the language of the First Amendment means today that government shall make “no law” infringing upon the freedom of speech. The courts have imposed a “hands-off speech” rule upon the government.

A third level is a historical truism that once you make an exception to the “no law” command, there will be no end to the rabbit hole down which the exceptions will descend. And a fourth level is the view that the better remedy for hate speech is more speech — speech that challenges and neuters it — rather than futile suppression.

If hate speech became prosecutable criminally or actionable civilly, who would speak out on anything?

The Rev. Alfred Delp, a Catholic priest in Munich during World War II, was arrested by the Gestapo because his sermons at Mass proclaimed Christian love of, and freedom of religion for, all people. Before being sentenced to death for the sermons, he was confined to a concentration camp and handcuffed 24/7, purportedly to prevent him from writing more sermons or saying Mass. He did both in Latin, so his captors didn’t understand what he was doing.

On the scaffold before his hanging, he blessed those about to send him to heaven. They responded by cremating his remains and scattering his ashes on a field of cow manure. That is diabolic depravity worthy of hatred. Yet if Ye wants to praise that — and it is but the tip of the iceberg of the evil the Nazis perpetrated — he is free to do so.

The value of speech cannot be determined by the government because the government hates and fears whatever seriously challenges it. All speech — even that which seeks the removal of protections for free speech — is protected, or none will be. Hate speech can be diminished only by challenging the hater by the force of moral opinion, not by the force of law.

• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

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