In an editorial entitled “Free Speech vs. Hate Speech” (May 6, 2015), The New York Times weighs in on recent events in Garland, TX, where a contest organized by Pamela Geller invited people to draw a cartoon of the Prophet Muhammad.  Two heavily armed Islamist terrorists tried to shoot people as they were leaving the event; a security guard was injured in the shoot-out and both terrorists were killed.

The editorial begins with the obligatory recitation of the absolutely indisputable truth that here in the U.S. cartoons of Muhammad, no matter how offensive to Muslims, are protected speech under our Constitution’s 1st Amendment. And, of course, there is the similarly predictable sentiment that no expression of opinion, no matter how offensive, justifies murder.  I suppose we should thank the editorial board for that gracious admission.

But all this is just a warm-up for the substance of the piece, and that is that there is (we are told) a “critical distinction” between “free speech” and “an exercise in bigotry and hatred posing as a blow for freedom.”  In fact, today we are in the middle of “a furious and often confused debate about free speech versus hate speech.”  Can you guess on which side of the distinction the editorial board put Ms. Geller’s contest?  If you guessed “hate speech,” you win.  The editorial could hardly be more emphatic: “[t]o pretend that [the Garland event] was motivated by anything other than hate is simply hogwash.”

We ought to think carefully about this editorial; it reveals more about the mind-set of the NYTime’s editorial board than was intended, I think.  First of all, it is interesting that the editorial explicitly refers to a distinction between “free speech versus hate speech.”  In many European countries there are statutory prohibitions against “hate speech” that vilifies ethnic or religious groups; violating those prohibitions is a criminal offense.  In the U.S., the notion of “hate speech” is entirely foreign (pun certainly intended) to our laws; the concept has no legal significance whatsoever.  Nevertheless, the editorial insists that there is a “critical distinction” between free speech and hate speech.

Those of us of a certain age will remember when, during the administration of then-N.Y.C. Mayor Rudy Giuliani, a publicly-funded museum in Brooklyn displayed something called “Piss Christ,” which featured a crucifix submerged in a bottle of the so-called artist’s urine.  Mayor Giuliani took steps to withhold funding from the museum, and the subsequent lawsuit upheld the museum’s 1st Amendment right to display the piece, no matter how offensive it might be to some, without suffering any loss of funding or any other negative consequences.  When those events were occurring, the NYTimes editorial board never made any distinction between free speech and hate speech.  In fact, its editorials thundered with a characteristically self-righteous tone against the unlawful tactics of Mayor Giuliani.  So, it is interesting to contrast the paper’s very vigorous defense of “Piss Christ” with its condemnation of a Muhammad cartoon contest as “hate speech.”

But, more fundamentally, in light of the fact that the term “hate speech” has absolutely no application or meaning in U.S. law, what does it mean when the editorial says that there is a “critical distinction” between free speech and hate speech?  On analysis, it turns out that the distinction (as is true of so much of the content of the NYTimes’ editorial page) means almost nothing.  All it means is that the editorial board disapproves of what it believes are Ms. Geller’s motives in staging the cartoon contest.

The editors believe the contest was motivated by hate, and any other opinion is “hogwash”.  For the sake of argument, suppose that was Ms. Geller’s motivation.  Even the NYTimes concedes that, whatever her motivation, the event was protected by the 1st Amendment, so it could not be cancelled or prohibited because of that motivation.  Moreover, the editors again concede that, whatever Ms. Geller’s motive, people who are offended by the cartoons and for that reason kill other people do not have a valid defense—they would be guilty of murder.  Furthermore, the police force in Garland, TX, had an obligation to protect the lives of everyone associated with the Muhammad cartoon contest, regardless of Ms. Geller’s motive in staging the contest.

So, in fact, the distinction that the NYTimes deems to be “critical” turns out to be entirely irrelevant to every legal aspect of the events in Garland.  Apparently, what is critical in the minds of the NYTimes editorial board is their own disapproval of actions motivated by hate (but not actions—like the creation and display of “Piss Christ”—that arguably are motivated by hate but offend only religious people who are not Muslims).

My own personal opinion is that Ms. Geller is probably motivated much more by a desire to defend, in as dramatic and attention-getting manner as she can, the 1st Amendment, but that is my own opinion.  I do not know Ms. Geller, so my opinion of her motives is not worth much.  I suspect that the same is true of the NYTimes editorial board.  What I do know with a high degree of certainty is that the NYTimes editorial cannot sustain any kind of critical analysis, and amounts to little more than the old Bronx cheer: “Pamela Geller—booooo!”  They could have written just that and saved a whole lot of electrons.