The “Draw Muhammad” Contest and the Futility of Trying to Correct Journalistic Mistakes about the Law

Journalists often not only get the law wrong, but then have the audacity to smugly talk down to people who attempt to correct them (usually in a way that manifests a pro-regulatory slant). A classic example was CNN anchor Chris Cuomo’s statement, in the context of a “Draw Muhammad” contest in Garland, Texas, that “hate speech is excluded from protection. dont just say you love the constitution…read it.”

Cuomo has seemingly never read the Constitution himself, despite having once attended law school. The Constitution doesn’t even contain the word “hate,” much less mention “hate speech” in the First Amendment. The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. As Twitchy observed, “in 2011, the Supreme Court ruled 8-1 in Snyder v. Phelps stating the always awful Westboro Baptist Church” – which vociferously hates gay people – “had the right to protest at the funerals of slain military members. In other words, hate speech is protected speech.” This is not a new legal principle. The Supreme Court invalidated a hate-speech ordinance in R.A.V. v. St. Paul (1992). Moreover, it has also ruled that a racist group couldn’t be charged more fees based on its racist message (Forsyth County v. Nationalist Movement), and that a racist Klan speech was protected speech (Brandenburg v. Ohio (1969).

When this was pointed out to Cuomo, he justified his erroneous statement by citing the legally irrelevant “Chaplinsky case,” a case that said nothing about hate speech, but rather involved the judicially created “fighting words” exception to the Constitution. The “fighting words” exception seldom applies to hate speech, and requires face-to-face insults, not depictions of the prophet Mohammed, however inflammatory such depictions might be. As the Supreme Court explained in its Texas v. Johnson decision, which struck down attempts to ban flag burning, the fighting words exception doesn’t reach apply to even extremely inflammatory speech unless it involves a “direct personal insult or an invitation to exchange fisticuffs.” In response to a Jewish reader who attempted to correct his error, he argued that it wouldn’t cover speech in which someone would “call you something ugly for being Jewish.” But calling somebody something ugly, even in-person, is typically protected speech under the Supreme Court’s decisions in Gooding v. Wilson and Lewis v. City of New Orleans, which limited the reach of the fighting words doctrine to cover almost no speech.

Running out of patience with Cuomo, the First Amendment and criminal-defense lawyer Ken White, also known as Popehat, called Cuomo “a disgrace to Fordham Law School, which only admitted you because of your famous father.” Popehat’s acerbic remark may reflect his frustration over widespread media myths about the scope of the First Amendment, such as a recent McClatchy news story that quoted a political science professor erroneously suggesting that the Mohammed cartoons in Texas might have be unprotected incitement of violence. In reality, the Supreme Court’s ruling in Hess v. Indiana made clear that such speech cannot be banned as “incitement,” since even inciteful speech retains its protection under the First Amendment unless it is intended to incite imminent lawless action.

Constitutional protections for hate speech seem to be an unpleasant necessity, given how broadly and unevenly hate-speech prohibitions often are applied. In the U.S., college hate-speech codes have been used against students for criticizing affirmative action, discussing the death penalty’s racial implications, and expressing religious objections to homosexuality. Ironically, hate-speech laws have often been used  against minorities in the Third World, with prosecutors labeling minority grievances as inflammatory racial separatism.

I have often experienced the same kind of smugness from reporters when attempting to correct their errors about government regulations, legislation, and lawsuits. A prime example is the New York Timesfailure to correct repeated falsehoods in its coverage of the Supreme Court’s 2007 Ledbetter v. Goodyear decision about pay-discrimination lawsuits. Times reporters such as Linda Greenhouse made it sound like the plaintiff in that case, Lilly Ledbetter, had been arbitrarily prevented by the Supreme Court from suing despite only recently learning of the pay discrimination around the time she retired. But that was untrue. As I noted in The Washington Post:

In reality, Ledbetter knew for years that she was being paid less, as she made clear in her deposition. When she was asked, “So you knew in 1992 that you were being paid less than your peers?’ she answered, “Yes, sir.


[T]he Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co. indicated that she did know. In footnote 10 of its ruling, the court pointed out that Ledbetter had not even claimed in court that she did not discover the discrimination until the deadline for suing had passed. As it explained, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . . . Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.” 

When I brought this footnote and Ledbetter’s deposition to the attention of the Times, its senior editor, Greg Brock, simply ignored what I had to say, claiming I must be wrong because the Times had repeatedly said otherwise.