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Democratic Senator Takes Woefully Wrong Stance on So-Called Hate Speech and First Amendment

J. Scott Applewhite

Something about "hate speech" drives Democrats so nuts, including and even members of Congress, that they lose their minds when it comes to causing confusion about the First Amendment, despite how they should know better. They've especially taken to wacky stances following Elon Musk coming on as CEO of Twitter.

Sen. Ben Cardin (D-MD) in particular caused a stir earlier this week, when a clip was shared of a recent hearing where he was addressing antisemitism. 

"If you espouse hate, if you espouse violence, you're not protected under the First Amendment, so I think we can be more aggressive in the way that we handle that type of use of the internet," Cardin said in the clip, also pointing out how "you know Europe has done things, I think we need to learn from each other."

The 14-second clip in question was shared to the senator's official Twitter account on Wednesday, and was further promoted by The Hill's account that same evening, drawing strong reactions from those pointing out glaring constitutional issues expressed by Cardin in the clip. Our friends at Twitchy highlighted plenty of replies in a post from Thursday. 

Stunningly, Cardin is also a lawyer, having graduated law school from the University of Maryland-Baltimore, meaning he really should have known better.

It's not merely users over Twitter pointing out how wrong the senator is. Curt Levey, a constitutional law attorney and the president of the Committee for Justice, discussed Cardin's remarks to set the record straight, referring to the senator's comments as "completely incorrect as a matter of law," since the "Supreme Court has repeatedly emphasized that there is no exception to the First Amendment for hate speech."

Levey's statement also explains the case in question, Brandenburg v. Ohio, from 1969, noting that since then "it’s been clear that espousal of violence is protected by the First Amendment, except where it is both intended to and likely to incite 'imminent lawless action.'" The facts of the case, as Levey explained, included "an Ohio law under which a Ku Klux Klan leader was convicted for making anti-Semitic and racist statements and threatening vengeance for the federal government’s suppression of whites, was struck down as unconstitutional."

Another attorney, Glenn Greenwald, also explained in a Twitter thread how wrong Cardin is. He offered that once upon a time the ACLU would have taken issue. The civil liberties group hasn't responded to the clip of Cardin's remarks, at least not over Twitter.  They've mostly been focused on abortion and transgender issues, as their tweets show. 

Cardin himself even felt the need to add clarity to the tweet. On Thursday, he posted a longer version of the clip, one that was over a minute and a half long, where he makes clear that "I do think that there's a role for government, consistent with our First Amendment for us establishing parameters," making an even more chilling point in a way about government control, before he makes those comments included in the shorter clip. 

He also shared a letter from December 17 about antisemitism which addresses the First Amendment. "But what about the First Amendment? 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," one paragraph reads, linking to a Forbes article from Schuyler Moore who is a partner at Greenberg Glusker.

While the clarifiction may be welcoming, Levey nevertheless still sees the need to correct the senator. The letter, Levey explains, while it "admits that the First Amendment generally protects hateful speech, gets the law wrong in that it states the exception in far broader terms than Supreme Court precedent."

Levey also mentioned a quote from Justice Oliver Wendell Holme that the First Amendment is "freedom for the thought that we hate," which "Cardin seems to forget," as Levey sees it. 

Further, Levey offers that "the definition of 'hate speech' is far too politicized for such speech to be safely regulated. For example, was it hate speech when President Biden called supporters of Donald Trump semi-fascist and a threat to democracy?"

Harold Hutchinson at the Daily Caller News Foundation also mentioned Cardin's comments, including the senator's follow follow-up. Hutchinson included comment from the Foundation for Individual Rights and Expression (FIRE), one of the accounts which called Cardin out for the initial clip. As Joe Cohn, Legislative and Public Policy Director for FIRE, told the Daily Caller News Foundation "FIRE is pleased to see that Senator Cardin clarified that most hateful speech is indeed protected under the First Amendment."

Both the initial clip and a letter included in Cardin's follow-up thread earned a mention from the Bad Legal Takes Twitter account.

As mentioned, Democrats have been increasingly losing their collective mind over free speech and the First Amendment as of late, including and especially with regards to Musk acquiring Twitter. This includes Cardin's fellow lawmakers, with Townhall having highlighted reactions from 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. 

Sen. Dick Durbin (D-IL), who is also a lawyer and serves as the chairman of the Senate Judiciary Committee, and thus should especially know better, had a similar faux pa when it comes to the First Amendment.

Twitter users slapped a context warning label on a tweet of his from November 1 claiming that "Free speech does not include spreading misinformation to downplay political violence."

The Biden administration has also gotten increasingly caught up in First Amendment concerns, especially as it applies to colluding with Big Tech to engage in censorship. Concerning details of such collusion have been coming about earlier this year. 

As Katie just pointed out on Monday, a recent batch of the Twitter Files highlighted how the government, including under the Biden Administration, put pressure on the social media platform with regards to COVID-19 narratives, "a blatant violation of the  First Amendment," as she appropriately put it. 

Levey warns that this not only a pattern when it comes to Democrats, but a sign of what is to come. "I would like to chalk Sen. Cardin’s incorrect statement of the law up to political rhetoric," he offered. "But it’s emblematic of an increasing misunderstanding of and hostility to the First Amendment seen among many Democrat politicians. Their tolerance for FBI investigations of parents who speak out at school board meetings and their insistence on criminalizing Donald Trump’s questioning of the 2020 election results are just two examples of a frightening trend."

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