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Hate speech is legal…

I hear arguments from my fellows on the left against the types of speech that may have incited anti-abortion violence (“anti-abortion violence” a sort of oxymoron in itself). While I agree that morally the right should STFU a bit (or rather, tone it down), I disagree with any implication that censorship would be reasonable here.

What most people don’t know is “incitement to violence” in most forms is actually legal – something I didn’t know myself until reading the always excellent Glenn Greenwald:

That’s because I agree with what the U.S. Supreme Court ruled 45 years ago in Brandenburg v. Ohio. That case overturned the conviction of a KKK member for giving a speech that threatened political officials (including the U.S. president) with violence. The Court invalidated as unconstitutional the Ohio law that made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

The Brandenburg Court’s key reasoning: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force.” Only incitement of imminent violence — e.g., leading a mob holding torches outside of someone’s house and directing them to burn it down — can be punished; advocacy of violence by itself cannot be (my most comprehensive argument against criminalizing ideas on the ground that they are “hateful” or “violent” is here).

I know it’s appealing to censor when it’s “the other guys”, but someday if the tables are turned, you might disagree. And, being an old fuck, I have seen the tables turned many times.

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