Sen. Ben Cardin, the Democrat serving as senior senator from Maryland and a 35-year veteran of the United States Congress, declared during a committee hearing on Wednesday that “if you espouse hate, if you espouse violence, you’re not protected under the First Amendment,” before advocating that the federal government crack down on such speech.

“I think we can be more aggressive in the way that we handle that type of use on the internet,” continued Cardin, who touted Europe’s hate speech laws and suggested that “we have to learn from each other.”

.@SenatorCardin: “If you espouse hate, if you espouse violence, you’re not protected under the First Amendment. I think we can be more aggressive in the way that we handle that type of use of the internet.” pic.twitter.com/t38Myy93ZI

— The Hill (@thehill) December 29, 2022

While Senator Cardin seems relatively well-versed in Europe’s more censorious legal framework, it seems that his three-and-a-half decades of swearing oaths to the American Constitution have not blessed him with even a working knowledge of the document.

The First Amendment reads: “Congress shall make no law… abridging the freedom of speech.” Notice that there are no exceptions, exemptions, or qualifiers attached to that pronouncement. Jurisprudence around the First Amendment is no kinder to Cardin’s assertions.

Case law decrees that the government has little ability to regulate so-called hate speech, or even violent speech, be it narrowly or broadly defined. The Supreme Court has ruled that bigots reserve the right to picket outside of soldiers’ funerals with signs that read “God hates fags” and “Thank God for dead soldiers.” It’s ruled that certain laws banning cross and flag-burning are unconstitutional. And in a 2017 majority opinion observed that “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.'”

There are exceptions to the First Amendment, but they are exceedingly narrow. Government may regulate speech meant to incite imminent unlawful action, that by their very nature may induce an imminent breach of the peace, or constitutes a “true threat” to someone’s physical safety.

On Thursday, Cardin attempted to correct himself, but again failed to accurately articulate the First Amendment’s parameters.

“Although the First Amendment protects even hateful speech, if that speech motivates someone to commit a crime, engage in violence, or take action that infringes on someone else’s right, that speech is not protected under the First Amendment and there must be accountability,” wrote Cardin.

But that simply isn’t the case. In order for such speech to be unprotected, it must be made with the immediate intention of producing such acts — not just have incidentally produced them. In the landmark Brandenburg v. Ohio case, for example, a Ku Klux Klan rally advocating generalized “revengeance” against blacks and Jews was found to be constitutionally protected despite its hateful and even dangerous nature.

Perhaps after 35 years, Senator Cardin is well past due for a refresher course before deigning to legislate on these fundamental matters.

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