NPR ombudsman erroneously claims free speech doesn’t include hate speech

NPR ombudsman erroneously claims free speech doesn’t include hate speech

National Public Radio (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,” 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, 343 U.S. 495 (1952), declaring:

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 ruled 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.

UCLA Law Professor Eugene Volokh, a leading authority on First Amendment law (and author of a widely-used First Amendment casebook), criticized Schumacher-Matos’s antiquarian views of the First Amendment at the Washington Post, expressing his “hope” that unlike NPR’s pro-censorship departing ombudsman, “NPR’s new ombudsman will more strongly support the free speech protections that ultimately help make even mainstream outlets like NPR possible.” Jacob Sullum criticized Schumacher-Matos’s statements at Reason Magazine, writing that “Schumacher-Matos is plainly wrong” about the First Amendment’s scope. The Daily Caller wrote that “NPR’s Ombudsman Is A Drooling Moron Who Doesn’t Understand the First Amendment.”

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 key exculpatory evidence suggesting that those accused might be innocent. For example, evidence of friendly interactions and “physical contact” between the accused students and their 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 such interactions between the accused and the 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, 550 N.W.2d 505 (Mich. 1996); State v. Babbs, 971 S.W.2d 774 (Ark. 1998); George v. Commonwealth (Ky. 2003). 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, titled “Sexual Assault on Campus: A Frustrating Search for Justice.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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