Something about “hate speech” drives Democrats, including members of Congress, to the point where they lose their minds when it comes to creating confusion over the First Amendment even though they should know better. They took a particularly strange stance after Elon Musk became Twitter’s CEO.
Sen. Ben Cardin (D-MD) in particular caused a stir earlier this week when a recording of a recent hearing in which he spoke about anti-Semitism was released.
“If you espouse hate, if you advocate violence, you’re not protected under the First Amendment, so I think we can be more aggressive about this kind of internet use,” Cardin said in the video: also noting that “you know Europe has done a lot, I think we have to learn from each other.”
The 14-second clip in question was shared on the senator’s official Twitter account on Wednesday and was further promoted on The Hill’s account that evening, sparking forceful reactions from those pointing out the blatant constitutional issues Cardin expressed in the clip. Our friends at Twitchy highlighted many of the answers in the post from Thursday.
Surprisingly, Cardin is also a lawyer, having earned a law degree from the University of Maryland-Baltimore, which means he really should have known better.
Twitter users aren’t the only ones pointing out how wrong the senator is. Curt Levey, constitutional lawyer and president Justice Committeediscussed Cardin’s comments intended to clarify the situation, referring to the senator’s comments as “completely incorrect as a matter of law” because “the Supreme Court has repeatedly emphasized that there is no hate speech exception to the First Amendment.”
Levey’s statement also clarifies the matter at hand, Brandenburg v. Ohioof 1969, stating that since then “it has been clear that advocating violence is protected by the First Amendment except where it is both intended to i probably incitecoming unlawful action.” The facts of the case, Levey explained, included “an Ohio law under which a Ku Klux Klan leader was convicted of making anti-Semitic and racist statements and threatening retaliation for the federal government’s persecution of whites was struck as unconstitutional.”
Another lawyer, Glenn Greenwald, also explained in a Twitter thread how wrong Cardin is. He suggested that the ACLU would take up the issue someday. The Civil Liberties group has not responded to the clip of Cardin’s remarks, at least not on Twitter. As their tweets show, they mainly focused on abortion and transgender issues.
Cardin himself even felt the need to clarify the tweet. On Thursday, he posted a longer version of the clip, lasting more than a minute and a half, in which he explains that “I really believe that the government, under our First Amendment, has a role to play in setting the parameters.” he makes even more chilling remarks about government control before including those remarks in a shorter clip.
He also shared letter on December 17 on anti-Semitism that concerns the First Amendment. “But what about the First Amendment? Although the First Amendment even protects hate speech, if that speech motivates someone to commit a crime, commit violence, or take action that violates someone’s rights, that speech is not protected under the First Amendment and there must be accountability,” reads one paragraph, linking to a Forbes article by Schuyler Moore, a partner at Greenberg Glusker.
While this explanation may be nice, Levey still sees a need to correct the senator. Levey explains that his letter, “while acknowledging that the First Amendment generally protects hate speech, misrepresents the law by establishing an exception much more broadly than Supreme Court precedent.”
Levey also mentioned a quote from Justice Oliver Wendell Holme that the First Amendment is “freedom of thought that we hate” that “Cardin seems to forget” – that’s how Levey sees it.
Moreover, Levey argues that “the definition of ‘hate speech’ is far too politicized to be safely regulated. For example, was it hate speech when President Biden called Donald Trump supporters semi-fascists and a threat to democracy?”
Harold Hutchinson at the Daily Caller News Foundation also mentioned Cardin’s comments, including the senator’s follow-up actions. Hutchinson posted a comment from the Foundation for Individual Rights and Expression (FIRE), one of the accounts that called out Cardin for being in the first video. As Joe Cohn, FIRE’s director of legislative and public policy, told the Daily Caller News Foundation, “FIRE is pleased that Senator Cardin has clarified that most hateful speech is indeed protected under the First Amendment.”
Both the initial clip and the letter contained in Cardin’s subsequent thread received mentions on the Bad Legal Takes Twitter account.
As mentioned, Democrats have been increasingly losing their minds about free speech and the First Amendment lately, especially with Musk’s takeover of Twitter. This includes Cardin’s other lawmakers, with Townhall highlighting the reactions of Sen. Ed Markey (D-MA), as well as Reps. Ted Lieu (D-CA) and Adam Schiff (D-CA).
Cardin himself tweeted about Musk, also from his official account.
Senator Dick Durbin (D-IL), who is also a lawyer and serves as chairman of the Senate Judiciary Committee and therefore should especially know better, made a similar faux pas when it came to the First Amendment.
Twitter users placed a contextual warning label on his November 1 tweet, arguing that “freedom of speech does not include spreading misinformation to downplay political violence.”
The Biden administration is also increasingly embroiled in First Amendment concerns, especially when it comes to colluding with Big Tech to impose censorship. As for the details of such collusion, they emerged earlier this year.
As Katie just pointed out on Monday, a recent batch of Twitter Files highlighted how the government, including under the Biden administration, has pressured the social media platform over COVID-19 narratives, which is a “blatant violation of the First Amendment,” as she aptly put it.
Levey cautions that this is not just a pattern as far as Democrats are concerned, but a sign of things to come. “I would like to link Senator Cardin’s incorrect statement about the law to political rhetoric,” he offered. “However, it is emblematic of the growing misunderstanding and hostility toward the First Amendment seen among many Democratic politicians. “Their tolerance of FBI investigations into parents who speak out at school board meetings and their insistence on criminalizing Donald Trump’s questioning of the 2020 election results are simply two examples of a terrifying trend.”
