WHAT IS HATE SPEECH?
Hate speech is the kind of speech used to denigrate an individual or a group of people because of something about them, such as their race, ethnicity, gender, age, nationality, religion, sexual orientation, disability, ideology, social class, or physical appearance. Speech is considered written or oral communication and some forms of behaviors in a public setting (such as burning a cross).
Some people have trouble defining hate speech. Does it matter whether the speech occurs in a face-to-face encounter, in an online diatribe, in a novel, in a newscast, during a classroom presentation, or as part of a political candidate’s campaign? Can hate speech be defined as a list of words (fag, nigger, kike, retard, fatso, gimp), or does the context of those words count (rap music, Lenny Bruce, a scholarly paper)? Which is more important in determining hate speech, the intent of the speaker (Rahm Emanuel saying the Democrats are “fucking retarded,” or the reaction of the audience (Sarah Palin, because of her Down’s Syndrome child)?
The following might be considered hate speech:
- In Maryland, at a town hall hosted by Democratic Sen. Ben Cardina, a man held a sign “Death to Obama” and “Death to Michelle and her two stupid kids.” The man was detained and turned over to the U.S. Secret Service for questioning. It is illegal to threaten the life of a president.
- A couple of weeks before last November’s election, a man in West Hollywood, Calif., had a display outside his home of a mannequin dressed to look like Sarah Palin hanging by a noose around her neck. A likeness of John McCain appeared to be emerging from a fake fire.
- A liberal radio talk show host, Mike Malloy, said on the air: “I have good news to report: Glenn Beck appears closer to suicide. I’m hoping that he does it on camera. Suicide is rampant in his family, and given his alcoholism and his tendencies toward self-destruction, I am only hoping that when Glenn Beck does put a gun to his head and pulls the trigger that it will be on television, because somebody will capture it on YouTube and it will be the most popular video for months.”
Is this hate speech?
The Two Minutes Hate: August 12, 2009
I am certain this is:
Tempe pastor reiterates wish for President Obama s death Phoenix Arizona
Before a truck bomb took out the Alfred P. Murrah Building in Oklahoma City, these people might have been dismissed as cranks. Now, after the deaths of George Tiller and Stephen Johns (the Holocaust Museum guard), it feels as if we should take action.
THE FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The First Amendment to the U.S. Constitution
The federal government and state governments are broadly forbidden by the First Amendment from restricting speech. Unique among courts in the world, the Supreme Court has extended broad protection in the area of hate speech—abusive, insulting, intimidating, and harassing speech that at the least fosters hatred and discrimination and at its worst promotes violence and killing. The First Amendment is not, of course, absolute; private institutions, including universities and employers, are not subject to the First Amendment, which restricts only government activities.
There is obviously a direct a direct link between freedom of speech and a vibrant democracy. Justice Louis Brandeis wrote that “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” I ask, is that correct? Is the national debate bolstered when, for example, hate speech is mainstreamed? Or are the real issues pushed to the backburner while we debate nonsense, like whether or not our President is an American citizen?
Americans vigorously dispute the application of the First Amendment. Justice Oliver Wendell Holmes, in his famous Abrams v. United States (1919) dissenting opinion, had a shocking opening line: “Persecution for the expression of opinions seems to me perfectly logical.” What could Holmes have been thinking?
Perhaps Holmes was saying that all of us have within us a kind of censorship-impulse. Governments are especially prone to censor. As Holmes went on: “If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” Censorship is a kind of social instinct. As caring and responsible citizens of society, we are likely to want many results with all our hearts. We want safety, we want freedom from fear, we want order, civility, racial and religious tolerance, we want the best world for our children. We want these things with all our hearts, and when others express opinions that seem to threaten these hopes, we want to enact laws that forbid them to express it. It is only logical to want to prevent opposition to what we know is good. But that’s the crux of freedom of speech: Who are “we” and how do we “know what is good,” really?
Most people believe in the right to free speech, but debate whether it should cover flag-burning, hard-core rap and heavy-metal lyrics, tobacco advertising, hate speech, kiddie porn, nude dancing, and religious symbols on government property. Many would agree to limiting some forms of free expression.
Many influential American thinkers have often argued that robust protection of freedom of speech, including speech advocating crime and revolution, actually works to make the country more stable, increasing rather than decreasing our ability to maintain law and order. Does that hold true even if a percentage of citizens want to see minority populations disenfranchised; even if they want to see their brand of Christianity become the national religion; even if they government programs labeled fascist? Freedom of speech allows a tiny but vocal group of people to use the megaphone of the media to spread lies, fear, and hate too.
Perhaps if a society as wide-open and pluralistic as America is not to explode from festering tensions and conflicts, there must be valves through which citizens with discontent may blow off steam.
Probably the most celebrated attempt at an explanation to the value of free speech is the “marketplace of ideas” metaphor, a notion most famously associated with Justice Holmes’ great dissent in Abrams, in which he argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The marketplace of ideas metaphor does not assure that truth will emerge from the free trade in ideas, but merely says that free trade in ideas is the best test of truth. Is that true? And doesn’t Holmes make certain assumptions about Americans? For example, doesn’t he presume an educated populace, one taught critical thinking skills?
The connection of freedom of speech to self-governance and the appeal of the marketplace of ideas metaphor still, however, does not tell it all. Freedom of speech has value on a more personal and individual level. Freedom of speech is part of the human personality, a value intimately intertwined with human autonomy and dignity. In the words of Justice Thurgood Marshall in the 1974 “The First Amendment serves not only the needs of the polity but also those of the human spirit — a spirit that demands self-expression.”
Many Americans embrace freedom of speech for the same reasons they embrace other aspects of individualism. The U.S. Supreme Court has often understood the First Amendment in a way that defies the logical impulse to censor. In scores of decisions, the Supreme Court has interpreted the First Amendment in a manner that to most of the world seems positively radical. Those decisions are numerous and cover a vast and various terrain, but consider some highlights. Americans have the right to:
- Desecrate the national flag as a symbol of protest.
- Burn the cross as an expression of racial bigotry and hatred.
- Espouse the violent overthrow of the government as long as it is mere abstract advocacy and not an immediate incitement to violence.
- Traffic in sexually explicit erotica as long as it does not meet a rigorous definition of “hard core” obscenity.
- Defame public officials and public figures with falsehoods provided they are not published with knowledge of their falsity or reckless disregard for the truth.
- Disseminate information invading personal privacy if the revelation is deemed “newsworthy.”
- Engage in countless other forms of expression that would be outlawed in many nations but are regarded as constitutionally protected here.
- And infamously, now, corporations have the right to make political contributions to increase the influence of money on the political process.
“In much of the developed world, one uses racial epithets at one’s legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk and one urges discrimination against religious minorities under threat of fine or imprisonment,” Frederick Schauer, a professor at the John F. Kennedy School of Government at Harvard, wrote in a recent essay called “The Exceptional First Amendment. But in the United States,” Schauer continued, “all such speech remains constitutionally protected.”
Canada, Britain, France, Germany, the Netherlands, South Africa, Australia and India all have laws or have signed international conventions banning hate speech. Israel and France forbid the sale of Nazi items like swastikas and flags. It is a crime to deny the Holocaust in Canada, Germany and France. By contrast, U.S. courts would not stop the American Nazi Party from marching in Skokie, Illinois, in 1977, though the march was deeply distressing to the many Holocaust survivors there.
SUPREME COURT CASES RELATED TO HATE SPEECH
According to opinions in Supreme Court cases, there are four main characteristics that make hate speech a legal offense: Incitement to imminent lawless action, true threats, a clear and present danger, and fighting words. There are other areas of speech not protected by the first amendment too—obscenity, libel and slander, and conflict with other governmental interests (like gag orders during trials and certain speech during war).
Incitement to imminent lawless action
In Brandenburg v Ohio (1969), the justices upheld the right of the Ku Klux Klan to call publicly for the expulsion of African Americans and Jews from the United States, even though the speech in question intimated using violence. The justices held that unless the speech was intended to cause violence and had a high likelihood of producing such a result imminently it was protected by the First Amendment. The Brandenburg test has proven nearly impossible to meet.
The Supreme Court explained the definition of true threats in Virginia v. Black (2003) — in which it upheld most of a Virginia cross-burning statute — this way:
“True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect(s) individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.”
In Planned Parenthood v. American Coalition of Life Activists (2002), the 9th U.S. Circuit Court of Appeals held that some vigorous anti-abortion speech — including a Web site that listed the names and addresses of abortion providers who should be tried for “crimes against humanity” — could qualify as a true threat. The 9th Circuit emphasized that “the names of abortion providers who have been murdered because of their activities are lined through in black, while names of those who have been wounded are highlighted in grey.”
Even in the speech-restrictive world of the military, the U.S. Court of Appeals for the Armed Forces ruled in United States v. Wilcox (2008) that a member of the military could not be punished for posting racially offensive and hateful remarks he made over the Internet about white supremacy.
A Clear and Present Danger
In 1919, the Supreme Court was first requested to strike down a law violating the Free Speech Clause. The case involved Charles Schenck, who had, during WWI published leaflets challenging the conscription system. The Supreme Court unanimously upheld Schenck’s conviction for violating the Espionage Act. Justice Holmes, writing for the Court, wrote that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
The “clear and present danger” test of Schenck was extended in 1919, again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs, a political activist. Debs had not spoken any words that posed a “clear and present danger” but a speech in which he denounced militarism was nonetheless found to be sufficient grounds for his conviction. Justice Holmes suggested that the speech had a “natural tendency” to stop the draft. Can you imagine this precedent holding up today? I can’t, given the amount of anti-government talk I hear in the media daily.
Freedom of speech was also influenced by anti-communism during the Cold War. In 1940, the Congress made it illegal to advocate “the propriety of overthrowing or destroying any government in the United States by force and violence.” Even though there was no immediate danger posed by the Communist Party’s ideas, the Court allowed the Congress to restrict the Communist Party’s speech.
These cases have never been explicitly overruled by the Court, but subsequent decisions have greatly narrowed its place within First Amendment laws. Now only speech explicitly inciting the forcible overthrow of the government remains punishable.
The U.S. Supreme Court ruled in Chaplinsky v. New Hampshire, (1942) that intimidating speech directed at a specific individual in a face-to-face confrontation amounts to “fighting words,” and that the person engaging in such speech can be punished if “by their very utterance [the words] inflict injury or tend to incite an immediate breach of the peace.” Say a white student stops a black student on campus and utters a racial slur. In that one-on-one confrontation, which could easily come to blows, the offending student could be disciplined under the “fighting words” doctrine for racial harassment.
Over the past 50 years, however, the Court hasn’t found the “fighting words” doctrine applicable in any of the hate speech cases that have come before it, since the incidents involved didn’t meet the narrow criteria stated above.
Libel and Slander
You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization. This is a highly inconsistent ruling, as I can provide several examples where president Obama was the object of both lies and slander. Obama is a racist, a fascist, a socialist. Perhaps the President has decided it is not worth it to put these statements to the test. Of course, it is very difficult to prove that the defamer knew his or her facts were lies.
Symbols of hate are constitutionally protected if they’re worn or displayed before a general audience in a public place, say, in a march or at a rally in a public park. But the First Amendment doesn’t protect the use of nonverbal symbols to encroach upon, or desecrate, private property, such as burning a cross on someone’s lawn or spray-painting a swastika on the wall of a synagogue or dorm.
In recent decades, American courts have held that public hate speech, such as the Nazi march in Skokie, must be protected under the First Amendment because there is no principled way to distinguish that speech from other forms of political expression. I would argue that this form of speech invades its targets’ rights to personal security, personality, citizenship, and equality. The crucial question then becomes whether this form of speech should be protected anyway because of its political character. The answer to this question turns on our conception of political speech. After looking at the leading theory in this area – Justice Holmes’s vision of the marketplace of ideas – I argue that political speech is best understood as discourse among individuals or groups who recognize one another as equals and free, as well as members of the community. By denying recognition to its targets, political hate speech violates the fundamental ground rules that should govern political debate. I believe that this form of speech should not receive constitutional protection. Interpreting the First Amendment in this way would not only allow American law to reconcile the competing demands of free speech and human dignity; it would also approach political hate speech in the same way that many other liberal democratic nations and the international community does.
It once seemed easier to ignore the haters among us. They held furtive meetings in out-of-the-way places, wrote racist screeds in the guise of bad novels, and when they appeared in public, they wore hoods to hide their faces. Now, they apply for admission to the bar, stand for elected office, appear on radio and television talk shows, and increasingly take their message to the mainstream by using the Internet.
America, we like to feel, has room for everyone. It is a place of tolerance, equality, and justice. Hate is an affront to that vision, and the lengthening list of hate crimes should haunt our national conscience and make us search for a remedy. I am struggling with Freedom of Speech.
Next– Part 3: The Psychology of Hate Groups and How They Recruit