Commentary

NPR Wrongly Suggests First Amendment Doesn't Protect Hate Speech or Blasphemy

Hans Bader
By Hans Bader | February 11, 2015 | 2:34 PM EST

Jean Paul Bierlein reads the latest issue of Charlie Hebdo outside a newsstand in Nice, southeastern France, Wednesday, Jan. 14, 2015. In an emotional act of defiance, Charlie Hebdo resurrected its irreverent and often provocative newspaper, featuring a caricature of the Prophet Muhammad on the cover that drew immediate criticism and threats of more violence. The black letters on the front page read: "All is forgiven." (AP Photo/Lionel Cironneau)

NPR receives taxpayer subsidies based on its false pretense of objectivity and accuracy. Its departing ombudsman, Edward Schumacher-Matos, recently declared that “as a public media that receives some 11 percent of its funding indirectly from the government, it cannot be partisan or have a declared bias.”

But it routinely gets basic facts wrong, especially on legal subjects. While touting NPR’s supposed superiority over other media, such as “Fox News,” its ombudsman, Schumacher-Matos, made the false claim last week that the French satirical magazine Charlie Hebdo, whose staff were massacred by terrorists, would not be protected in the U.S. under the First Amendment, because it made “fun” of people’s “prophets and gods,” and constituted “hate speech.”

That claim was simply false: The Supreme Court declared blasphemy laws unconstitutional in Joseph Burstyn, Inc v. Wilson, stating that "it is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion picture."

NPR’s ombudsman also wrongly implied to NPR’s readers that America’s courts consider “hate speech unprotected by the Constitution.” He wrote: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and god."

Never mind that 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.

Even under French law, which does ban “hate speech,” Charlie Hebdo had been found not to have engaged in hate speech, and Charlie Hebdo’s staff included distinguished, non-racist cartoonists.

NPR routinely gets the law wrong. NPR’s slanted, misleading story about the University of Wisconsin’s handling of a sexual assault allegation by Laura Dunn helped ignite an Education Department assault on students’ due process rights. As an American Enterprise Institute scholar noted, that story, jointly produced by NPR and the Center for Public Integrity, concealed from viewers exculpatory evidence suggesting that those accused might be innocent. Evidence of friendly interactions and “physical contact” between the accused students and the accuser after the alleged crime was never mentioned by NPR, based on the erroneous assertion that it was legally irrelevant, even though it is blackletter law that interactions between the accused and accuser after the alleged crime are relevant, and generally admissible to prove consent and thus innocence, as many state supreme courts have ruled. See, e.g., People v. Adair; State v. Babbs; George v. Commonwealth. Despite their clear legal relevance, CPI’s Kristin Jones said she “didn’t think Dunn’s subsequent consensual encounters with her alleged attackers were worth mentioning” in the NPR report, entitled “Sexual Assault on Campus: A Frustrating Search for Justice.”

Hans Bader is a senior attorney at the Competitive Enterprise Institute.