There is no such thing as unprotected speech. Period. Full stop.
That means there is no “hate speech” that is not protected by the Constitution (albeit the USSC has whiffled this from time to time, as they are occasionally wont to do). Not to straw man here, but there are folks who will quote Oliver Wendell Holmes and claim that, because there is no right to shout “fire” in a crowded theater, entire classes of speech can be deemed as outside of constitutional protection. Let’s unpack that a bit:
In Schenck v. United States (1919), Holmes wrote an opinion (for a unanimous court) finding that Charles Schenck, an opponent of the US’s participation in World War I, could be prosecuted for a violation of the Espionage Act of 1917. Schenck’s crime? Urging citizens to resist the draft via both oral speech and flyers. The Court deemed that undermining the war effort was beyond the protection offered by the First Amendment. The most famous passage is Holmes quote:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” * ^ (Emphasis mine.)
But, Schenck is no longer the law of the land, and anyone quoting Holmes today is either cherrypicking their history or is an idiot. In Brandenburg v Ohio (1969), the Court completely overturned Holmes’s reasoning in Schenck. In that case, the Court found speech could only be punished when it might result in “imminent unlawful action”** and even the Court’s thinking in Brandenburg has been subsequently attacked on numerous occasions.
Further, Holmes himself came to regret the Schenck decision as an attack on the necessity of robust speech protections (see Zechariah Chafee).
But, set aside what the Court has said for a moment (after all, the Court’s history of being flat out wrong is long and storied–and before you disagree, be prepared to defend Dred Scott v Sanford). Free speech protections must be absolute, save one highly singular exception–one should not enjoy the protections of the Constitution for a known falsehood. This isn’t a moral judgement, but a practical one: how long can society function if e.g. a corporation can lie about using horse meat in their hamburgers, then claim Constitutional protection as their defense of the lie?
But speech we just don’t like? Speech that offends us? Triggers us? Sends the pusillanimous among us in search of a “safe space?” The First Amendment was designed especially to protect political speech from the encroachment of government. And virtually all speech can be construed as political speech. So, all due respect to the President-elect (or “PEON” as Kevin Williamson has humorously suggested), you cannot punish people for burning a flag. Moreover, sir, you must not try. Period. Full stop.
On the other hand, for all of you student activists, university deans, department chairs, and presidents who keep campaigning for “free speech zones,”safe spaces,” and “hate speech codes”: pull your goddamned heads out of your asses. There is no “but that offends me” exception to free speech. The best cure for a wrong opinion is–and shall remain–more speech.
You insufferable jackasses drawing those munificent salaries at Harvard, Yale, and (sadly) UNLV need to remember your job is to teach, not coddle. It would be great if you’d start teaching your students that they are going to run into things they disagree with. In real life, they will not be permitted to claim that they are “afraid” of a contrary opinion and retreat to a “safe space”–at least not if they want to keep their jobs. Your collective failure to teach them that is prima facie evidence that you should be fired for cause.
And, Mr. Trump? How about you get busy learning how to govern the country via the office which you swindled just enough people into voting you into? Don’t make the mistake that so many of your predecessors have (especially you, Mr. Obama), and start thinking it’s your job to tell people which opinions are right and wrong. That is never your job. Period. Full stop.
I am a veteran, Mr. Trump, unlike yourself. Seeing someone set the flag on fire offends me deeply. So deeply, in fact, that were such a person to accidentally set themselves on fire while doing so, I would take the opportunity to roast a marshmallow over his blazing corpse. But I will never support, argue for, or endorse any encroachment by the government on some jackass’s right to do so.
Here’s a tip, folks: if you aren’t free to be an ass, you aren’t really free.
*Holmes, Oliver Wendell. “Schenck v. United States 249 U.S. 47”. Opinion. Legal Information Institute. Retrieved 29 November 2016
^ Wikipedia has a decent right up on this if the cited entry is too much for you to wade through
**per curium opinion. “Bradenburg v. Ohio 395 U.S. 444” Justia U.S. Supreme Court Center. Retrieved 29 November 2016