To be appointed to a Justice Department position in the Obama administration, you may need to satisfy various ideological litmus tests. But apparently you don’t need to understand or appreciate the First Amendment. That seems to be regarded as a bug rather than a feature for Justice Department lawyers.
One example is the administration’s baseless prosecutions of peaceful, non-disruptive anti-abortion protesters, which has resulted in judges imposing sanctions against the Justice Department for frivolous prosecutions. In U.S. v. Pine, taxpayers ponied up $120,000 when a judge ordered the Justice Department to pay the attorneys fees of a protester persecuted by the Obama Justice Department in a transparently baseless prosecution.
Another is the recent message delivered by Bill Killian, whom the president appointed to be U.S. Attorney for the Eastern District of Tennessee. He told citizens at a meeting he organized “that hate speech was not protected by the First Amendment,” reports NPR.
The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. See the Supreme Court’s decisions in (1) R.A.V. v. St. Paul (1992), which invalidated a hate-speech ordinance; (2) Snyder v. Phelps (2011), which overturned damages for hateful bigoted speech at a funeral; (3) Forsyth County v. Nationalist Movement (1992), which said a racist group couldn’t be charged more fees based on its racist message; and (4) Brandenburg v. Ohio (1969), which held a racist Klan speech was protected by the First Amendment. The U.S. Attorney either was not aware of, or did not agree with, any of these well-known Supreme Court decisions that limit his power to prosecute citizens’ speech.
It’s not a good idea to let the government ban what it views as “hate speech,” because many commonplace views that are not in fact hateful have been banned under overbroad campus hate-speech and “harassment codes” struck down by federal judges. For example, commonplace views about affirmative action, feminism and the death penalty have been punished under campus hate speech and harassment codes. (See the examples cited in Brief of Amici Curiae Students for Individual Liberty, et al., in Davis v. Monroe County Board of Education, 1998 WL 847365, filed Dec. 8, 1998.)