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Senator Cardin Betrays the Constitution

America could lose one of its first freedoms. Senator Ben Cardin of Maryland recently said this about the First Amendment:

It is an incredibly valuable part of our fabric and can be used for good, and we know that it can be used for bad. I admire your desire for the private sector to do what’s right. We do hope that’s the case, but I do think there’s a role for government consistent with our First Amendment. For us establishing parameters, if you espouse hate, if you espouse violence, you’re not protected under the First Amendment.

He looked to Europe for inspiration, saying that “we can be more aggressive” and that “Europe has done things.” These “things” include charging political candidates in court for peaceful speech. Such speech includes saying such reasonable things as “the day we have in France not just five million but 25 million Muslims, it will be them in charge.” The European Union has ordered social media to censor its platforms to curb “divisive content.” The United Kingdom even recently arrested a woman for silently praying outside an abortion clinic.

No such government should be a model for us. No such government can claim to ground its legitimacy in “freedom.” Judges, bureaucrats, and politicians regulating what people can say, hear, and apparently, even think, are not the government of a free country. An American senator who sees such repression as a model doesn’t understand the Constitution.

There’s no such thing as “hate speech” in American law — at least, not yet. Senator Cardin graduated from law school and has been an elected official since before I was born. He does not appear to know that in Brandenburg v. Ohio, the Supreme Court ruled that urging illegal action, even overthrowing the government, is allowed unless it would cause a clear and present danger and is incitement to imminent lawlessness. The case involved KKK members shouting slurs and urging violence, but the justices noted that a law criminalizing their speech could be used against antiwar or antidraft protesters. This is the point of the law. It’s supposed to apply to everyone, even to the devil himself.

Senator Ben Cardin. (Credit Image: © Michael Brochstein/ZUMA Press Wire)

Critical Race Legal Theory has moved beyond law schools and into the courts. It teaches that the law is not blind and should not be. Laws should be interpreted differently when applied to “oppressed” groups, and whites can never be oppressed. In 1993, the Harvard Law Review published “Whiteness as Property,” which argued that “whites are not an oppressed people and are not at risk of becoming so.” Two decades later, the Washington State Supreme Court ruled that whites can’t make certain arguments in court because they might arouse unconscious racial bias. If a non-white accuses a white of having said something that might have evoked unconscious bias, the white must prove that he did not.

A week ago, Judge Ronald Gould of the Ninth Circuit Court, wrote in a concurring opinion in Chen v. Albany Unified School District:

Hateful speech encourages hateful thoughts, which lead to hateful goals of individuals; those, in turn, lead to hateful actions and sometimes violence, resulting in harm to the public. No court would seriously entertain an argument that schools must teach hateful speech on the grounds of academic equality or fairness when it so clearly is antithetical to our values. Hate speech has no role in our society and contributes little or nothing to the free-flowing marketplace of ideas that is essential to protect in a school environment.

This argument is identical to the one Senator Cardin made:

Although the First Amendment protects even hateful speech, if that speech motivates someone to commit a crime, engage in violence, or take action that infringes on someone else’s right, that speech is not protected under the First Amendment and there must be accountability.

He cited the Anti-Defamation League on the supposed rise of anti-Semitism in America. The league’s data are often unreliable, and anyone should be skeptical of an “anti-hate” group that can’t define “racism.”

In Brandenburg, the exemption for speech that even calls for the violent overthrow of the US government may be what keeps the Declaration of Independence within the law. It says government is instituted to protect certain unalienable rights, and if government fails, “it is the Right of the People to alter or abolish it.”

Even the Southern Poverty Law Center doesn’t really want to argue that one group’s speech is responsible for another person’s violent actions. In 2012, a gunman attacked the Family Research Council (FRC). He wounded one man while trying to kill others. He reportedlycited the SPLC’s “hate group” listings to explain why he picked his target. The FRC accused the SPLC of being morally culpable for the attack, but Senior Fellow Mark Potok said the claim was “outrageous.” “The FRC and its allies on the religious right are saying, in effect,” he wrote, “that offering legitimate and fact-based criticism in a democratic society is tantamount to suggesting that the objects of criticism should be the targets of criminal violence.”

Mr. Potok was right. It was an outrageous accusation.

However, if Mr. Potok really believed this, what is the point of articles by the SPLC and other groups “linking” American Renaissance or other groups to violent acts committed by other people? For example, I could offer the “fact-based criticism” that Mr. Potok kept a note tracking white population decline in his office. Nonetheless, the SPLC is worried because some Republicans have also noticed the decline in the white population. Journalists linked this factually correct observation to a mass shooting. Are Mark Potok and the Republicans morally responsible for the shooting?

However, even if “hate speech” (whatever that is) leads to hateful acts, who is inciting violence and against whom? According to the most recent National Crime Victimization Survey, a black person is 35 times more likely to attack a white person than the other way around. Is any of this violence incited by media denigration of whites?

What about officially designated hate crimes? The designation is subjective, and it certainly seems that white-on-black violence is more likely to be considered a hate crime than the reverse. For example, prosecutors apparently didn’t even look for a racial motive when Darrell Brooks killed whites with a car in Waukesha, even though he rapped about his contempt for whites on songs hosted by SoundCloud. Despite what appears to be a reluctance to look into racial motivation for black violence, the FBI reported in 2019 that blacks commit hate crimes at twice the white rate. Between 2017 and 2021, a reporter at the Washington Examiner found whites were the group most likely to be the victims of hate crimes in Philadelphia.

Still, I do not accept Senator Cardin’s assumption that “hate speech” leads to hateful acts. I deny that there is such a thing as “hate speech.” Neither Senator Cardin nor anyone else can determine what is hateful and what is not.

​For example, The ADL tells us that the numerical code 13/52 is a “shorthand reference to racist propaganda claims” that suggest African Americans are crime prone. The claim is that despite being just 13 percent of the population, blacks commit 52 percent of the murders. The ADL has a point; the statistic is wrong. According to the FBI, in 2021, 13 percent of the population committed more than 60 percent of the murders. ​

If “hate speech” does lead to violence, we are the ones under attack. Calls to attack whites are common on social media, inart, and even implied in popularfilms. We are the ones the government discriminates against. We are the ones being replaced, not just in America, but even in our ancient European homelands.

Senator Cardin would probably argue that it is “hateful” even to point these things out.