“Fortunately, this ain’t rocket science,” assures White. “Americans can train themselves to detect and question the media’s pro-censorship tropes. I’ve collected some of the most pervasive and familiar ones. This post is designed as a resource, and I’ll add to it as people point out more examples and more tropes.”
Trope One: “Hate Speech”
Example: “hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it.” CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
In the United States, “hate speech” is an argumentative rhetorical category, not a legal one.
… This is not a close or ambiguous question of law.
When the media frames a free speech story as an inquiry into whether something is “hate speech,” it’s asking a question of morals or taste poorly disguised as a question of law. It’s the equivalent of asking “is this speech rude?”
Trope Four: “Line between free speech and [questioned expression]”
Example: “Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech.” NPR.com Headline, May 5, 2015.
This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, “the line between free speech and true threats” isn’t misleading because “true threats” are an actual category of unprotected speech and there’s a line between them and protected speech.
Too often, though, the “line” is invoked to imply a nonexistent legal distinction. The “line between free speech and hate speech” rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, “hate speech” is not a legal thing. “The line between free speech and bullying” — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called “bullying” that lies outside of First Amendment protections.
…”The line between free speech and X” is often the rhetorical equivalent to “the line between vegetables and rutabagas”: the author doesn’t have a coherent argument that rutabagas aren’t vegetables, but doesn’t like rutabagas and thinks you shouldn’t either.
Trope Five: “Balancing free speech and [social value]”
Example: “The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment.” Washington Post, March 3, 2015.
“Balancing,” when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don’t weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn’t, balancing of its “value” against other interests is almost always prohibited.
Trope Six: “This isn’t free speech, it’s [category]”
Example: “It’s not free speech. It’s bullying and intimidation. It’s a horror show.” Mary Elizabeth Williams, Salon, February 17, 2015.
The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. “This isn’t free speech, it’s hate speech.” “This isn’t free speech, it’s discrimination.”
The trope can be used correctly — “this isn’t free speech, it’s an unprotected death threat.” But usually it’s not. Usually it’s invoked as shorthand for “I don’t want to address First Amendment analysis so I’m just going to say in conclusory fashion that it doesn’t apply at all.”
Trope Nine: “This speech may be protected for now, but the law is always changing.”
Example: “‘The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,’ he said.” The Guardian, quoting Eric Posner, May 6, 2015.
When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say “the law can change, and maybe it should.”
Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.
But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about “harmful” words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting “crush videos” of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.