The reliably liberal Politifact (through its Punditfact site) surprisingly took CNN’s New Day co-host Chris Cuomo took task on Thursday for his rather suspect claim on Twitter from Wednesday that “hate speech is excluded from protection” under the First Amendment.
Through its Punditfact site, Politifact’s Lauren Carroll noted his numerous attempts to clarify his remarks and citations of case law, but still came to the conclusion that Cuomo’s original statement was “false” (as opposed to “pants on fire”):
The Supreme Court has ruled that certain categories of speech are excluded from constitutional protection, such as a threat or "fighting words." Sometimes, speech can be both a threat and hate speech, in which case it would not necessarily have First Amendment protection.
But hate speech on its own -- such as on a picket sign or a blog -- is not excluded from protection. It may only be incidentally excluded.
Cuomo tried to clarify his point after the fact, giving an explanation similar to the examples we hashed out here.
But on his specific claim, the jurisprudence works against him.
Prior to her ruling, Carroll dissected Cuomo’s claims by starting with the tweet in question and how Cuomo told another Twitter user that “hate speech is excluded from protection” and urged the man to “read” the Constitution.
Carroll made clear almost immediately that “the concept of ‘hate speech’...is not addressed in the Constitution” and that “hate speech is not” considered “unprotected speech” (which “includes things such as threats, child pornography and ‘fighting words’”).
However, Carroll explained how hate speech “can also be considered ‘fighting words’” under certain circumstances, but is almost always given a wide range of rule and quoted Michael Herz of Cardozo Law School as emphasizing that: “Indeed, that protection makes this country different from most other countries in the world.”
Carroll also took issue with Cuomo’s clarification and how he was attempting to reference a 1941 case before the U.S. Supreme Court (Chaplinsky v. New Hampshire) where the two phrases in question were deemed “fighting words”:
Even with this clarification, [Arizona State University’s Sandra Day O’Connor Law School’s James] Weinstein said Cuomo’s argument isn’t without holes. If a statute bans hate speech, it has to be because it counts as a threat or fighting words -- not simply because it is hate speech. This may seem like a slight nuance, but it’s important.
In 2002, the Supreme Court ruled that it’s constitutional for a state to have a statute that bans cross-burning -- but only if prosecutors can prove criminal intent to threaten. They cannot, for example, ban a burning cross used only to demonstrate political ideology. In another cross-burning case, the Supreme Court ruled in 1991 that it’s unconstitutional to up the penalty or charge people with a crime solely because their actions constitute hate speech.
“The fact that something is hate speech or not is irrelevant for First Amendment analysis,” Weinstein said.
As the Media Research Center’s Matthew Balan reported on Wednesday, the comments from Cuomo (who holds a law degree) led to massive backlash from those on the right and left, ranging from Ed Morrisey and Ben Shapiro to Salon.
