‘Hate’ speech or ‘free’ speech? A fine line


UTPB Freshman Evan Joel Mitchell is Political Columnist and Features Writer for the Mesa Journal News.

People should not be able to threaten others with harm, without receiving punishment.  It is direct victimization of future physical harm, and should not be protected by the first amendment, but how does this differ from hate speech?  Hate speech is expressing views of hatred while the other incites harm.  If people can’t express a point of view, however radical, then do they have even have free speech?”

— Evan Mitchell

Freedom is, often, the most associated word with America, and that is because America was founded on the idea of a free people without a tyrannical government limiting or forcing things upon its people.  Of the freedoms that America was built upon, no freedom is more famous than the freedom of speech.

The freedom of speech is recognized by the United States Constitution in 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” (U.S. amend. 1).  This is arguably the most important amendment in the constitution, and it is the most well-known.  This amendment prevents the creation of any laws that prohibits the freedom of speech, and this makes our country a country of discourse.  Ideas are spread, and through discussion, become harnessed.  Anyone can share ideas without fear of imprisonment or punishment from the federal government.  At least that is the perception, but there are some who believe that there should be laws made against hate speech.  Hate speech, according to Merriam-Webster, is “Speech expressing hatred of a particular group of people” (par 1).  Hate speech is not something that is great, or even healthy, but my point is that hate speech should ultimately be protected by the first amendment of the United States of America.

How far does our freedom of speech currently go?  Are there any limits to it currently?  These are questions that need to be answered when discussing new limits for speech.  According to the United States courts, there are limits on the freedom of speech, and some of them are not consistent all the time.  Of these limits, one is “to incite actions that would harm others” (“What Does Free Speech Mean”) This was determined by the supreme court case Schenk vs. United States (1919), but what this also states, is that no one can threaten anyone with harm.  This is the biggest and most important limit on the freedom of speech.  Other limits are more circumstantial like “To burn draft cards as anti-war protest” (“What Does Free Speech Mean”).  This, I believe, is a reasonable limit to the freedom of speech.  People should not be able to threaten others with harm, without receiving punishment.  It is direct victimization of future physical harm, and should not be protected by the first amendment, but how does this differ from hate speech?  Hate speech is expressing views of hatred while the other incites harm.  If people can’t express a point of view, however radical, then do they have even have free speech?

In October of 2016, there was a Supreme Court case that took over a copyright denial that turned into a decision over the protection of the first amendment.  This case was going to define the nation and its definition of free speech.  The decision was a unanimous decision saying that the first amendment protects hate speech.  It was an 8-vote decision since this case was taken after the death of Antonin Scalia, but it is one of those few rare moments that all of the supreme court justices ruled in favor of something so politically controversial.  One of the decisions read:

But no matter how the point is phrased, its unmistakable thrust is this: The Government has an interest in preventing speech expressing ideas that offend. And, as we have explained, that idea strikes at the heart of the First Amendment.  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”. (Alito 25)

There was also another decision written by Justice Kennedy and it reads:

Those few categories of speech that the government can regulate or punish—for instance, fraud, defamation, or incitement—are well established within our constitutional tradition. See United States v. Stevens, 559 U. S. 460, 468 (2010). Aside from these and a few other narrow exceptions, it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. (2)

With the broad support of the United States Supreme Court, would anyone really argue and or oppose the protection of hate speech?  Yes! There are many scholars and intellectuals who adamantly oppose the protection of hate speech.  The fact that the court held hate speech as protected by the first amendment unanimously didn’t change many peoples’ already gathered opinions on the topic.

Many people, especially in the academic field wish to ban hate speech or at least regulate it.  Stephen Shiffrin, who is a Doctor of Law, believes that hate speech should be regulated or banned.  He writes a journal in response to another scholar saying that hate speech restrictions violate a fundamental principle of government.  He writes, “I will argue that hate speech restrictions do not violate fundamental principles of government, nor are they instances of impermissible point-of-view discrimination” (Shiffrin 676).  He goes on to compare other forms of regulated speech with hate speech.

Nasty things said about a person in some contexts are unprotected; nice things said about the same person are protected. Advocacy of illegal action is unprotected in some contexts; advocacy of legal action is protected. Two explanations for these distinctions seem clear. First, the unprotected speech causes harm and the protected speech does not.  Second, in some cases, such as obscenity (or fighting words), the speech is regarded as less valuable than other forms of speech. The notion that speech law does not look at the value of speech is falsified not only by obscenity and fighting words doctrine, but also by the view that some forms of sexually oriented speech, commercial speech, and private speech should be less protected than more important political speech. There is a strong case for the view that racist speech causes harm and lacks substantial constitutional value. (Shiffrin 677)

He says that since certain types of speech are already regulated, and that these types of speech share values with hate speech, then hate speech laws would be permissible, but he says that it is the speech that harms that is unprotected and the speech that doesn’t harm that is protected.    This is precisely what I had mentioned the defining factor to limiting speech was, but Shiffrin extends the inciteful harm to hate speech, and his reasoning for it is not the most convincing.  He writes that racist speech, which he is using as hate speech, has,

many well-documented harms: it is an assault on the dignity of people of color; it humiliates and causes emotional distress, sometimes with physical manifestations; it helps spread racial prejudice, not only stigmatizing people of color in the eyes of the societally dominant race but also in the eyes of [many of] the victims themselves, inspiring self-hatred, isolation, and . . . finally, it frequently creates the conditions for violence. (Shiffrin 677)

In this, Shiffrin, conflates the already limited speech of threats, with hate speech, and by using terms like “assault” is misleading since the hate and or racist speech is simply expressing an opinion.

Shiffrin also tries to hold the expresser of these, racist or not, opinions as responsible for actions that others take that may be influenced by their opinion.  This is dangerous.  People who do not directly call for violence against individuals or people should not be held responsible for actions that others take.  For instance, last year there was a shooting at a congressional baseball game practice.  At this shooting “a gunman opened fire on Republicans practicing for a congressional baseball game” (Allen and Shapiro par. 1).  The shooter “had reportedly expressed strident anti-Republican views on social media and directed particular ire at Trump after he became president. (He) was also a one-time volunteer for Bernie Sanders’ campaign for president last year” (Allen and Shapiro par. 16).  This shooting was a tragedy, but there is something here that discredits Shiffrin’s claim about creating “conditions for violence”.  Nobody believes that the speech that democratic legislators were using should have been banned even though those words, most likely, partially motivated the shooter to commit the vile act.  Senator Bernie Sanders condemned the mans actions and rightfully so, but no one believed that Sanders shared even a fraction of blame.

There are also those who oppose the idea of banning hate speech that are in the scholarly field.  Such as James Weinstein, who wrote a journal on how banning hate speech undermines antidiscrimination laws.  Many people viewed this journal as controversial and there were many replies written about his piece, but what he says is not ridiculous.  In the piece Weinstein writes:

Laws prohibiting discrimination on the basis of characteristics such as race, ethnicity, religion, sex, or sexual orientation are an essential means by which modern liberal democracies promote equality and protect human dignity. Consistent with these laudable goals, most liberal democracies, with the notable exception of the United States, also prohibit hate speech, including expression that demeans people based on characteristics protected by antidiscrimination laws. Ironically, however, hate speech restrictions can undermine the legitimacy of antidiscrimination laws, both in terms of their popular acceptance but even more crucially with respect to the morality of their enforcement. For instance, laws forbidding people from expressing the view, as is the case in several European jurisdictions, that homosexuality is immoral or disordered, can destroy the moral justification of enforcing laws against sexual orientation discrimination against religious dissenters. Conversely, the ability of Americans to freely oppose antidiscrimination laws by publicly expressing bigoted ideas about groups protected by these laws strengthens the legitimacy of enforcing these provisions even when doing so infringes upon deeply held religious convictions. (Weinstein 1)

He states that without anyone expressing the awful opinions about groups of people, then the more important antidiscrimination laws are being made void.  His piece is well written, but he doesn’t focus on the United States and so the freedom of speech is just a principle of government instead of a right.

Hate speech laws are also a slippery slope all in themselves, and I know that slippery slope is a logical fallacy, but it applies here more than other places since there would be legislation it might complicate things.  Eric Heinze writes in his book Hate Speech and Democratic Citizenship he writes:

We face a complicated dialect.  With each step, our reasoning strays even further from democratic foundations.  At one remove from democratic process, the right of free expression protects unpopular speakers by limiting the ability of legislatures or judges to silence them.  The right carves out an exception to the rule of democratic process in order to safeguard democracy itself.  At a second remove, however, hate speech bans place limits upon those limits.  That second step equally aims to protect vulnerable citizens, and so preserve democracy.  But then at a third remove, those hate speech bans must face limits of their own.  Legislatures and courts must determine how far they extend.  They must therefore place limits on the limits on the limits imposed upon democracy. (5)

Heinze writes that the already in place limits would have to be pushed back and then those limits would have to be reevaluated by the courts.  This makes the process long, but it also slowly takes away the rights of a democracy.

Hate speech is very controversial now, in America.  People believe that the speech is harmful, and it negatively affects people, especially minorities.  Some people say that hate speech laws are needed to grant true equality in our nation, but that isn’t quite the case.  Hate speech, even thought it might be wrong to express extreme values about certain races or religions, is just that, expression.  It is not harmful to any persons, and the people who express these ideas are free to do so, but they are not responsible if their words inspire others to commit acts of violence, as long as their words don’t directly call for violence.  It is morally reprehensible to shift blame from the actions of a criminal to the words of someone who spoke to him.  Words, in the end, are words, and an assault on dignity isn’t the same as an assault.  The Supreme Court of the United States decided that hate speech is protected by the first amendment, and now is the time for the rest of the nation to agree with them.  Without the radical expressions of the misguided there would be no need for the freedom of speech since everything that we would be saying would be perfectly fine and acceptable, but it is for the ability to say things that stir conversation and or minds that the first amendment is there.  Hate speech is free speech.