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Last weekend, serious violence broke out in Charlottesville, Virginia, when a group of white supremacist demonstrators was confronted by a group of folks who were there to condemn the message the demonstrators had come to advance. The message was critical of the government for removing a statue of Gen. Robert E. Lee from a public place.

For some, Lee is associated with the military defense of slavery. For others, he is associated with the military defense of the right of states to leave the union — a union they voluntarily joined. For the organizers of the Charlottesville rally, the removal of the statue provided a platform to articulate crudely their view that the Caucasian race is somehow morally superior to every other.

Such a political and philosophical position is hardly rational to anyone who respects the dignity of all people and their moral equality before God and legal equality in America. Believing that one race is morally superior to others is largely a hate-filled theory, supportable only by bias, prejudice, fear and resentment — and perhaps a wish to turn back the clock to a time when the Supreme Court declared that nonwhites were not full people under the Constitution, a declaration eradicated by war and history and constitutional amendments.

These hateful, hurtful ideas — articulated publicly through Nazi salutes and flags and incendiary rhetoric last weekend — aroused animosity on the part of those who came to Charlottesville to resist and challenge and condemn these views. After the police left the scene and rejected their duty to protect the speakers and those in the audience, a crazy person drove his car into the midst of the melee that ensued, and an innocent young woman was killed when she was hit by the car.

Is hate speech protected under the Constitution? In a word, yes.

The First Amendment to the U.S. Constitution, which protects “the freedom of speech” from infringement by the government, has a long and storied history. The drafters of the amendment referred to it as “the” freedom of speech in order to underscore its pre-political existence. Stated differently, the freedom of speech is a natural right, one that derives from our humanity, and hence it pre-existed the government that was prohibited from infringing upon it. The government doesn’t grant free speech, but it is supposed to protect it.


In the early years of the republic, Congress punished speech that was critical of the government, through the Alien and Sedition Acts. The same generation that had just written that Congress shall make no law abridging the freedom of speech abridged it. During the Civil War, Abraham Lincoln, relying on no law, punished speech in the North that was critical of his wartime presidency. During both world wars, Woodrow Wilson and Franklin D. Roosevelt used the Espionage Act of 1917 to punish speech that was hateful of the government, because, they argued, it might tend to undermine the nation’s war efforts. Lincoln’s infringements were rejected by the Supreme Court. Wilson’s and FDR’s were upheld.

It was not until 1969 that a unanimous Supreme Court gave us the modern articulation of the nature and extent of free speech. Clarence Brandenburg, a Ku Klux Klan leader in Ohio, verbally attacked Jews and blacks in the government in Washington, D.C., at a public rally. He urged his followers to travel to Washington and produce violence against them. He was prosecuted and convicted under an Ohio law that largely prohibited the public expression of hatred as a means to overthrow the government.

Brandenburg’s conviction was reversed by the Supreme Court, which ruled essentially that the whole purpose of the First Amendment is to protect the speech we hate and fear. The speech we love and embrace needs no protection. Moreover, the right to decide what speech to listen to is enjoyed by individuals, not by groups collectively and not by the government.

All innocuous speech, the court ruled, is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it. This rule — known as the Brandenburg doctrine — has consistently been upheld by the court since its articulation.

Now, back to Charlottesville. The government cannot take sides in public disputes, because by doing so, it becomes a censor and thus infringes upon the free speech rights of those against whom it has taken a position. On the contrary — and this was not done in Charlottesville — the government has the duty to protect the speaker’s right to say whatever he wishes and the audience’s right to hear and respond to the speaker.

When the police decline to maintain order — as was their decision in Charlottesville — they permit the “heckler’s veto,” whereby the audience silences the speech it hates. And when the heckler’s veto comes about through government failure as it did in Charlottesville, it is unconstitutional. It is the functional equivalent of the government’s taking sides and censoring the speech it hates or fears.

The whole purpose of the First Amendment is to encourage open, wide, robust debate about the policies of the government and the people who run it. It would be antithetical to that purpose for the government itself to decide what speech is acceptable and what is not in public discourse.

What about hate speech? The remedy for it is not to silence or censor it, because we need to know from whence it comes. The remedy is more speech — speech to challenge the hatred, speech to educate the haters, speech to expose their moral vacuity. More speech will create an atmosphere antithetical to hatred, and it will reinforce the right of every individual to pursue happiness, which is the American promise.

But that promise is only as valuable as the fidelity to it of those in government, whom we have hired to protect it. In Charlottesville, they failed.

Copyright 2017 Andrew P. Napolitano. Distributed by

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  1. Is it just me, or is the term “hate speech” and it’s brother “hate crime”, both of which are newspeak exclusively for just about anything coming from anyone to the right of center-left, getting a little long in the tooth?

  2. vetran says:

    A bit paradoxical all those comments on “free speech” while Goolag is censoring scores of independent websites by tweaking the algorithms of it search engine.

  3. John Belushi’s Illinois Nazis are as much a threat as snake handlers or Moonies. They do not merit a fraction of the fear and loathing they receive. George Soros’ thugs (the new Pinkertons) however pose a real threat especially since they are allied with the police.

    I’m sorry the good judge has bought into the bogus concept of hate speech. He probably is also a crusader against thought crime.

    • Replies: @jtgw
  4. Are those who favor the removal of Lee’s statue America’s Taliban? I see this as similar to the destruction of Afghanistan’s Bamiyana Buddhas.
    Is the Caucasian race morally superior? Why do Caucasians create societies non-Caucasians want to come to? As Lenin supposedly said, “The people voted with their feet”.
    What is hate speech? Any speech Judge Napolitano dislikes?
    I agree Judge, hate speech is constitutionally protected. Today. Once the US become minority Caucasian the First Amendment will be eliminated along with the rest of the Bill of Rights.
    Perhaps Sessions can do his job and bring an action against the powers that be in Virginia under 42 USC 1983 or 1985. Good luck.

  5. Ben Frank says:

    Hate speech is not the issue. The issue is a global war of South against North. The global South has the numbers, billions and billions of colonists whom they are sending to Europe and the USA, in order to settle and eventually take over. They are aided by fifth-columnists, especially the MSM and the Democrat Party.

    Everything else is a distraction. This is a slow-motion war.

  6. Glenn Greenwald also has a good article on freedom of speech which defends the ACLU for defending the freedom of speech of the Alt-Right:

    I’m not condoning the Alt-Right or Antifa or KKK or MLB. I’m condoning freedom of speech.

  7. St. John Chrysostom wrote the following about anger:

    Only the person who becomes irate without reason, sins. Whoever becomes irate for a just reason is not guilty. Because, if ire were lacking, the science of God would not progress, judgments would not be sound, and crimes would not be repressed.

    Further, the person who does not become irate when he has cause to be, sins. For an unreasonable patience is the hotbed of many vices: it fosters negligence, and stimulates not only the wicked, but above all the good, to do wrong.

    (Homily XI super Matheum, 1c, nt.7)

    Couldn’t one make the same argument about hate? Aren’t there people who deserve to be hated? If we do not direct hate speech against such people, are we not fostering negligence and stimulating the wicked?

    If one sees one’s own people being dispossessed from an ancestral homeland, being deprived of their history, their jobs being shipped offshore or given to undeserving minorities who did nothing to build this country, why is it wrong to direct “hate speech” against such people. The only downside that I can see to hate in such circumstances is that it clouds the objectivity that is necessary to bring about the defeat of the evil doers.

    • Replies: @Corvinus
  8. BozoB says:

    Undoubtedly, some people express “hate,” but the word today is generally a label used by coxswains of the politically orthodox to denigrate their opponents. Quite often, people are angry at other people; almost no one today talks of “angry speech”. If you read the New York Times, say, and come across one of their many articles blaming white people for one thing or another, and you get angry and vilify them, are you indulging in “hate speech”? As for racism, yes, some people really do “hate” certain categories of people. But today anyone is called a racist who does a large number of things that have nothing to do with hate whatsoever. (And let’s leave aside those who “hate” racism and racists.) Most questions about race are empirical questions (say, about different groups’ innate characteristics, abilities and so forth); the main media do their best to enforce an absolute ban on opinions that emphasize heredity as explanations. If they weren’t so inclined to abuse their station, they would simply let people argue the matter and let the evidence prove what it might. To sum up, when there is suppression of dissent, pressure builds among those whose views are suppressed; sometimes this turns into “hate”, but quite often it is just resentment.

  9. I agree with all of Napolitano’s statements, but I would point out that even though for some people, Lee is associated with defense of the right of the states to secede, there is and never was any such right. The Framers made it perfectly clear:

    Section 10


    1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

    2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

    3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    [emphasis added]


    So, no state could enter into any “treaty, alliance or confederation” and could not “enter into any Agreement or Compact with another State.” Maybe a single state could “secede” but there would be precious little it could do without the consent of Congress. Oh, sure, they could cut off the nose to spite the face by refusing to send anybody to represent them in Congress (and then Congress could appoint “representatives” for the seceding states) … but really, all any state could ever do was like what happened in Canada a few years ago, when Quebec seceded from Canada … and then the next day, it was business-as-usual and nobody noticed any change from the day before.

    The states never had a “right to secede” and the CSA was formed in violation of the Constitution.

    The pity is that the Court and the Congress and the Executive, all, have virtually repealed the Tenth Amendment (and the Ninth) such that there is no limit to Federal power.

    As Mr. Justice Thomas said in dissent to Gonzales v. Raich:

    The majority’s opinion only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from “ ‘commerce,’ … to “commercial” and “economic” activity, … and finally to all “production, distribution, and consumption” of goods or services for which there is an “established … interstate market,” … Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it.
    In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the Nation. 514 U.S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause.

    • Replies: @jtgw
  10. This is a very superficial essay by Napolitano.

    The protestors were not “white supremacists”. Says who?–some antifa warrior or network news anchor?

    Perhaps the moniker ‘white nationalists’ fits. OK. These white nationalists wish to preserve their Euro-American culture and civilization. What’s wrong with that? This is hate? Bullsh*t. This is patriotism. It’s a normal and natural tendency.

    In case you haven’t noticed, white, Christian, English-speaking American culture is under pressure. Thus, the rising assault on Free Speech, Freedom of Association, and dissent that is not politically correct. This is serious. The opposing side is powerful and uncompromising.

    So why does Napolitano assert that white nationalists consider Caucasians to be ‘morally superior’ to non-Caucasians? Absurd. Who made this up? Napolitano is making wild claims.

    In fact, many white nationalist have utmost respect for other races; though not all. But even this sentiment does not necessitate war or even inter-racial hostilities.

    White nationalists want to take back control of the civilization that their ancestors created. It’s slipping away and they know it. They want to preserve their culture. Is that immoral? Not at all.

    After all, you don’t see Israelis or Japanese accepting alien refugees or exulting at the prospect of mixing their children’s genes with Africans, do you? Of course not.

    Why then should whites?

    Ethnic cohesion and racial continuity are a natural tendency and a God-given right.

    Birds of a feather do fly together. And blood is thicker than water. Not a big deal.

    Further, the natural tendency towards racial solidarity is not inherently evil or even dangerous. That PC view is a post-Holocaust myth imposed on whites by globalist elites with a streak of hypocrisy wider than the Brooklyn Bridge.

    But if the sentiment of ‘racial kinship’ is abhorrent and dangerous, shouldn’t we apply its prohibition uniformly?

    Why then not integrate Chinatown?

    Isn’t it about time?

    Time to bus in some black schoolchildren, perhaps?

    Why not!

    Integration produces love, tolerance and diversity, right? Go for it. End racism!

    In the meantime, try renting an apt in Chinatown.

    If you’re not Chinese, it’s not going to happen. They like their racial uniformity just the way it is, thank you. Ditto on the Japanese. Very polite. Nice community. Just stay away.

    And how about Jewish nationalism? (Zionism).


    It sure looks that way.

    And don’t attribute Jewish exclusion and Jewish xenophobia to the ‘Holocaust’. Hebraic clannishness is as old as the Jews. It’s written in their holy books: the Chosen People.

    Let’s face it, the whiff of Jewish racism is hard to miss. Don’t believe me? Just ask the Palestinians. Yet TV pundits like Napolitano rarely notice. I wonder why.

    Perhaps Napolitano hopes that by towing the party line, he can win a spot back on Fox News.

    In any case, Napolitano gets a failing grade for his crude, politically-correct assessment of the meaning and motives present in Charlottesville.

    • Replies: @jtgw
    , @Grandpa Charlie
    , @Wally
  11. jtgw says:

    Did you even read his article? He demonstrates a pretty absolutist approach to freedom of speech and condemned the Charlottesville police for failing to protect the Unite the Right protest.

  12. jtgw says:
    @Mark Green

    He defends your right to express your views publicly in pretty absolute terms. I’m not sure why you need him to agree with your views on top of that.

  13. jtgw says:
    @Grandpa Charlie

    Interesting take. I imagine you could construct a plausible argument that the secession of the Confederate states ultimately did much more harm than good to the cause of states’ rights under the Constitution. If secession hadn’t occurred, states today may have retained many more of their powers.

    I’m not totally convinced that secession is illegal under the Constitution, though. I imagine that clause 3 you quoted refers to states attempting to form compacts with other states while remaining in the Union. If they withdraw from the Union first, however, then they are no longer bound by the Constitution. Historically I think there is good evidence that states continued to see themselves as sovereign while in the Union, including the rights to nullify federal legislation and to secede.

    Regardless of the legal right to secede, there is always a moral right to secede from an oppressive government (whether state or federal) or to overthrow such a government. Then again, there is no moral right to own slaves or support slavery, so that makes it challenging to evaluate the justification for the South’s secession. A final point to consider is that, even if secession were illegal and the justifications for secession immoral, did that justify a horrendously bloody war to keep those states in the Union?

  14. @Mark Green

    I commented, in passing, that I was in agreement with all of Napolitano’s points,, but I was thinking in terms of everything past the opening paragraphs – Napolitano’s defense of the First Amendment.

    Mark Green is correct in his critique of Napolitano – that is, his critique of the opening paragraphs. Napolitano is like many writers/analysts who give lip service to the false 9-11 narrative in order not to get bogged down in something and thus distracted from their main subject. In the same way, Napolitano rendered lip service to the MSM’s standard narrative for Charlotteville, in order (it seemed to me) to get into his real subject matter – the First Amendment’s prohibition that government cannot be allowed to abridge (curtail) freedom of speech. I still think or hope that Napolitano was trying, for the sake of argument, simply to take the worst case scenario, but he should have been explicit about that.

    What I agree with is Napolitano’s defense of the First Amendment, but I do not agree with Napolitano’s take on the events in Charlotteville, VA.

  15. KenH says:

    Believing that one race is morally superior to others is largely a hate-filled theory, supportable only by bias, prejudice, fear and resentment —

    Gag me with a spoon, judge. The Israeli Jews believe they are morally and racially superior to Palestianians and all Arabs and I don’t recall you breathing any cross words about them. In fact, Jews think they are superior to all non-Jews and if anyone dares to differ they are an anti-semite.

    I’ve talked with ignorant blacks who think they’re morally superior to whites because of slavery in the antebellum South. Nevermind their staggering violent crime rates and out of wedlock birthrates. Pick a race and they think they’re morally superior and just better than other races even if the objective evidence shows otherwise.

    But when whites cherish their race and perhaps think they are just a little bit better than others (non-whites) as evidenced by the highly functional, first world nations we create and are angry at the prospect of becoming a minority it then becomes “a hate filled theory, supportable only by bias, prejudice, fear and resentment”.

    Only white racial consciousness and racial activism gets pathologized like this. Every non-white race is encouraged to advocate for their group interests. This is rank hypocrisy on the part of the judge and the rest of the establishment punditocracy who think like this.

    Japan for the Japanese, China for the Chinese, Mexico for the Mexicans, Africa for the black Africans but whites nations for everyone and if you disagree you are a “white supremacist”.

  16. you are the definition of a racist. you imply all races should have their own ‘fatherland’.
    yet, in terms of biology and the prospects for the human race, the mixing of genes returns healthier individuals.
    the last stat i saw found that puerto ricans were the longest lived people. as you know, they are a hybrid of european and indigenous races.

    • Replies: @Stealth
  17. Corvinus says:
    @Diversity Heretic

    “{If one sees one’s own people being dispossessed from an ancestral homeland…”

    Except America was other than the “ancestral homeland” to Europeans, it was colonized.

    “being deprived of their history…”

    Yes, people have been deprived throughout human history of their fundamental rights.

    “their jobs being shipped offshore or given to undeserving minorities who did nothing to build this country…”

    ‘Tis accurate to say white Europeans founded America, with African slavery assistance. It is also a “hate fact” that our nation was built by whites and non-whites.

    “why is it wrong to direct “hate speech” against such people.”

    John 1:6 –If we claim to have fellowship with Him, and yet walk in the darkness, we lie and do not live out the truth.

  18. Stealth says:
    @Lawrence Fitton

    They’re mostly a hybrid of European and African. And where did you get that bullshit about them being the longest lived people in the world?

  19. Wally says: • Website
    @Mark Green

    This “post Holocaust” nonsense is built upon the false ‘holocau$t’ storyline of ‘6M Jews, 5M others, & gas chambers’.

    It is the strawman foundation of violent Zionism, communism, & their anti white gentile actions.

    There were the ‘Nazis’ with the impossible ‘6M Jews, 5M others, & gas chambers’ and there were the ‘Nazis’ without the impossible ’6M Jews, 5M others, & gas chambers’.

    The ‘6M Jews, 5M others, & gas chambers’ are scientifically impossible frauds.
    see the ‘holocaust’ scam debunked here:
    No name calling, level playing field debate here:

    “To learn who rules over you, simply find out who you are not allowed to criticize.”

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