The final week of the regular session of the West Virginia Legislature began with lawmakers, staff and Capitol observers still buzzing about Friday’s kerfuffle.

As our Brad McElhinny reported, “The most prominent part of the display was an image of an airplane crashing into the Twin Towers on 9/11 juxtaposed with Congresswoman Ilhan Omar of Minnesota, who is a native of Somalia. Pamphlets described ‘The Four Stages of Islamic Conquest’ and ‘Readin’, Writin’ and Jihadin’.”

The controversial display triggered an angry response from several Democratic delegates, a fallout that led to the disciplining of a House member, an embarrassment for the state Republican Party (It was “Republicans Take the Rotunda” day at the Legislature) and the resignation of the House Sergeant at Arms.  McElhinny has the full story here.   The House will sort all that out, but I want to focus on the larger issue here—the First Amendment.

One of the phrases I heard from a couple of Delegates and others weighing in on the controversy was, “hate speech is not free speech.”  The suggestion was that the poster and its message were not protected speech because of the content. This is a fundamental misunderstanding of the First Amendment.  Speech that is unpopular, objectionable and hateful is exactly the kind of speech the First Amendment was designed to protect.

Without that protection, who would decide what constitutes unacceptable speech? The government?   Just imagine the chilling effect if Americans had to worry whether their ideas—no matter how controversial they may be—would trigger an action by the government.

Of course, there are exceptions to the First Amendment—you cannot yell “fire!” in a crowded theater and you cannot incite people to engage in illegal conduct—but historically the courts have allowed great latitude to all kinds of speech.

Just two years ago, in Matal v. Tam, the U.S. Supreme Court sided with an Asian-American rock band with the controversial name “The Slants” after the Patent and Trademark Office denied their trademark application because their name could disparage Asians.  But Justice Samuel Alito, writing for the majority, said the agency’s decision violated free speech.

He wrote that the government’s attempt to block an offensive idea “strikes at the heart of the First Amendment.  Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

So, what are those who are offended or angered by this protected speech supposed to do?  They can counter it with more speech and a better argument.  That’s what a group of Muslims and their supporters did Saturday when they gathered at the Capitol to express their objections to the display.

In Gertz v. Welch, the U.S. Supreme Court said, “Under the First Amendment there is no such thing as a false idea. However, pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”

This is our hallowed ground, the great marketplace of speech where ideas rise and fall based on their merits, not on the whim or will of government or a select few individuals who want to dictate what is and what is not acceptable speech.


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