‘The Thought We Hate’

As an attorney, I am dismayed by the lack of knowledge displayed in Marie Basile McDaniel ’01’s letter to PAW on free speech (Inbox, Sept. 13). Ms. McDaniel states that “[h]ate speech is not protected as free speech.” This is simply wrong. There is no legal category known as “hate speech,” and the Supreme Court has repeatedly stated that the right to free speech protects “the thought we hate.” To cite just two recent examples, it protects the disgusting protests of Westboro Baptist Church and the Slants’ use of a racial epithet to name their band. Nor would removing “hate speech”— however defined — from First Amendment protection help the disadvantaged. History teaches us that the disadvantaged have the most to lose from restrictions on free speech. If “hate speech” can be banned, how will we respond when a state prosecutes someone for calling others racist? (“How hateful!” the alt-right will exclaim.)

Ms. McDaniel’s letter inadvertently makes this point. She cites Oliver Wendell Holmes’ dictum that you cannot shout “fire” in a crowded theater. Holmes made this statement in Schenck v. U.S. in the course of upholding the convictions of socialist anti-war protesters for distributing pamphlets opposing the draft. Schenck is almost certainly not good law today, and my guess is that Ms. McDaniel would be appalled if she knew the provenance of that trope and the uses to which it has been put. 

In light of this letter, I hope that President Eisgruber ’83 will not only continue to stand up for free speech, but to undertake efforts to ensure that current and future undergraduates have a better understanding of these rights and their importance.