To many, the idea that so-called “Hate Speech” isn’t “Free Speech” has been a nonsensical notion. How can one have freedom of speech if the state can censor particular negative utterances?
Oh, there is no right to yell “fire” in the proverbial crowded theater. But it is not the speech per se that is prohibited, but the chaos and harm it creates. In analogy, it is prohibiting one from bathing another in the head with a hammer, rather than ban swinging a hammer itself. Unless it would create a clear and present danger of an imminent lawless action, it is, and ought to be seen as, a sacrosanct exercise of the inalienable right to free speech.
What does banning “hate speech” mean in this context? It means that the idea being expressed is prohibited. The restriction of ideas is antithetical to a free society.
How then, does banning “hate speech” square the circle of “free speech”?
For a free people used to the protections of the 1st Amendment, free speech means that the government can’t punish you for expressing your opinion. In this brave new world, however, free speech means that the government won’t punish you for expressing an opinion it hasn’t prohibited. As James FitzJames Stephen noted:
“It must be said that there are rights which are not the creatures of law, but which exist apart from and antecedent to it; that a law which violates any of these rights is unjust”.
In effect is it the difference between considering the right to free speech a negative right vs. a positive right.
Freedom, then is redefined from what you have an inalienable right to, to what some higher temporal power allows you to enjoy. The recognition of rights serves as a bulwark against the state, and moreover from others. If a right can be dispensed with so easily, even by a democratic majority, than you have to real rights. As Ronald Reagan noted:
“Our natural unalienable rights are now presumed to be a dispensation of government, divisible by a vote of the majority. The greatest good for the greatest number is a high-sounding phrase but contrary to the very basis of our Nation, unless it is accompanied by the recognition that we have certain rights which cannot be infringed upon, even if the individual stands outvoted by all of his fellow citizens. Without this recognition, majority rule is nothing more then mob rule.”
Rights, properly understood, are as the preamble to the Bill of Rights noted “declaratory and restrictive”: They declare what already existed independent of the state, and restricts the government from infringing thereupon.