Washington D.C.- In what has to be one of the more embarrassing moments of his career, CNN New Day anchor Chris Cuomo recently took to Twitter to school his audience on the language of the U.S. Constitution. The only problem: clearly it was Cuomo who needed the refresher.
Jumping into an argument about hate speech, Cuomo said this: “hate speech is excluded from protection. dont just say you love the constitution…read it”
So, let’s do just that. The exact text from the very first amendment in the Bill of Rights cover freedom of speech (that didn’t take long). It says… “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Nope, nothing in there about hate speech. Obviously the text of the U.S. Constitution does not include any carved-out exception, which is why after being called out for his egregious mistake, Cuomo fell back on a little known court case from 1941 called the Chaplinsky case.
A brief history of the Chaplinsky case:
In late November 1941, Walter Chaplinsky, a Jehovah’s Witness, was using the public sidewalk as a pulpit in downtown Rochester, passing out pamphlets and calling organized religion a “racket.” After a large crowd had begun blocking the roads and generally causing a scene, a police officer removed Chaplinsky to take him to police headquarters. Upon seeing the town marshal (who had returned to the scene after warning Chaplinsky earlier to keep it down and avoid causing a commotion), Chaplinsky attacked the marshal verbally. He was then arrested. The complaint against Chaplinsky stated that he shouted: “You are a God-damned racketeer” and “a damned Fascist”. Chaplinsky admitted that he said the words charged in the complaint, with the exception of the name of the deity.
For this, he was charged and convicted under a New Hampshire statute preventing intentionally offensive speech being directed at others in a public place. Under New Hampshire’s Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is illegal for anyone to address “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name.”
The court ruled against him and out of this case came the “fighting words” exception. According to Hotair.com “Over time federal courts have narrowed that ruling to make clear that it only applies, in Ken White’s words, to ‘face-to-face insults that would provoke an immediate violent reaction from a reasonable person.’ In other words, says Instapundit, a ‘personal invitation to brawl.’ All true, but it’s painfully easy to move from that standard to a standard in which ‘hateful’ speech qualifies as ‘fighting words’ whether or not it’s uttered face to face, whether or not the violent reaction is immediate, and whether or not a reasonable person from the ‘majority’ might object to it.”
Furthermore, the Supreme Court of the United States has also already ruled on this subject. In the Supreme Court case R.A.V. v. City of St. Paul, Scalia (writing for the Court) made explicitly clear that the “Fighting Words Doctrine” could not be used to impose special prohibition on specific disfavored topics, such as, e.g., “hate speech.” As Scalia put it, “the reason why ﬁghting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul . . . has proscribed ﬁghting words of whatever manner that communicate messages of racial, gender, or religious intolerance[,] creat[ing] the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid[.]”
In the end, Cuomo is wrong… both in his initial claim and also in his follow-up in order to save face.