Posted by Eugene Volokh:
Oddly Enough, Speech Restrictions in America Did Not Begin with the Modern
Multiculturalist Left:
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245128749
A commenter on the [1]New Jersey parental profanity ban thread writes:
Geez, they didn't even bother to criminalize "offensive speech"
yet, going directly from "hate speech" to "abusive to your own
d*mned kids" speech.
But, hey, it's all for the children. The Village has to start
raising them sometime, and you might as well not let a good crisis
go to waste.
The trouble with this argument is that there's no "going directly from
'hate speech'" to punishment of vulgarities around one's own children
here. The punishment of vulgarities long preceded the modern attempts
to restrict "hate speech." This particular statute was enacted in
1915; the slightly musty language of [2]the full statute, to which my
post linked, might have suggested the same thing. (Consider, for
instance, the clause about "performing of any indecent, immoral or
unlawful act or deed, in the presence of a child, that may tend to
debauch or endanger or degrade the morals of the child.")
Even if one looks way earlier than the modern "hate speech" movement
to "group libel" statutes, the earliest such statute I could find was
from 1917, two years after the New Jersey statute. And even if there
were some earlier ones (there was a 1913 statute in New York banning
advertisements that stated that people of certain races or religions
weren't welcome in places of public accommodation, though that's
pretty far removed from modern proposed "hate speech" bans), there's
no reason to suspect any causal connection between the two.
The fact is that throughout much of American history, there were all
sorts of restrictions -- on vulgarity, on harsh criticism of religion,
on speech that had the tendency to encourage people not to register
for the draft, and much more -- that would be pretty clearly
unconstitutional today. They didn't come from the modern
multiculturalist left, or from any discernible predecessor of it.
Many, perhaps most, of them came from what would probably today be
seen as the right, though it's sometimes hard to tell for sure.
I've often criticized many speech restrictions and proposed speech
restrictions that have come from the left (as well as many from the
right and from other places). I'm certainly happy to condemn many of
the left's attempts to restrict speech (again, alongside others'
attempts). But let's not lightly assume that past restrictions, or for
that matter current restrictions, stem, directly or not, from the
left's proposals. That just isn't what American history, or the
present state of American politics, suggests.
References
1. http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245106553
2. http://law.justia.com/newjersey/codes/3382/340a.html
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