1st & 14th Amendments & Hate Speech

[Paul Finkelman]

mostly political opinions, which are protected; and of course what he
said on the floor of the Senate was protected, at least for him.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Rosenthal, Lawrence" <rosentha at chapman.edu> 03/04/07 9:01 PM >>>
Actually, a good deal of what McCarthy etc. had to say was probably
without constitutional protection under contemporary standards.  False
statements made with malice -- intentionally or with reckless disregard
for the truth -- lack constitutional protection even when they involve
public figures or matters of public concern, and Milkovich v. Lorain
Journal holds that a statment that would reasonably be understood to
contain a factual assertion lacks protection if made maliciously even
when it is framed in the form of an opinion.  The 50s redbaiters likely
made many statements that would reasonably be understood to contain
assertions of fact and which were likely made with at least reckless
disregard for the truth.  And perhaps a good deal of today's "hate
speech" could be proscribed under this standard as well.  
 
Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Paul Finkelman
Sent: Sun 3/4/2007 5:44 PM
To: hendersl at ix.netcom.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: 1st & 14th Amendments & Hate Speech



McCarran, Nixon, McCarthy, etc were all oretty nasty people were. But
are people really arguing that mainstream political attacks, however
mean spirited, nasty, harmful, stupid, etc, are somehow subject to
restraint because they constitute "hate speech."  The danger was not
only the speech but the gov. action that followed and the failure of
defenders of speech to act.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386
pfink at albanylaw.edu
>>> Lynne Henderson <hendersl at ix.netcom.com> 03/04/07 8:26 PM >>>
Oh, it was hate speech all right--hatred of "socialists", "communists",
"fellow travelers", "liberals", "unionists," "sympathizers" . . . it
was a political /content classification rather than a race or gender
classification, which certainly  merits strict scrutiny.  the threats
were real,the violence real,  the power of government was real, and
McCarthy is just a symbol.  He wasn't the most dangerous or
efficacious--Nevada's own MacCarron was far worse because he yielded
more power, was an anti-Semite, etc. (*see* eg. Michael Ybarra,
*Washingotn Gone Crazy: . . .the McCarron Years*
Lynne Henderson
On Mar 4, 2007, at 4:58 PM, Paul Finkelman wrote:

> all this might be true but it hard to imagine how McCarthy's political
> attacks on people constitute hate speech, however repulsive he was.
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>      and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
>>>> "Steven Jamar" <stevenjamar at gmail.com> 03/04/07 7:18 PM >>>
> Not all of us are such absolutists.  Hate speech has much in kind with
> violent threats, threats to security, and other exceptions and
> limitations to the first amendment.
>
> Nor is it all or nothing.  Nor is it a case of impossible line
> drawing.  Hard lines are drawn all the time.
>
> Look what McCarthy did.  What Bush/Cheney/Rummie have done to those
> who oppose them.  Those are much bigger threats to speech than
> constrained limits on hate speech.
>
> Hate speech does huge social harm.
>
> Steve
>
>
>
> --
> Prof. Steven Jamar
> Howard University School of Law