A Little Bit Pregnant: The Struggle to Affirm Freedom of Speech in America
By Maryscott O’Connor / Dateline: Thursday Jun 19, 2008
Wherein O’Connor, with characteristic panache, tackles one of the most difficult dilemmas in modern politics, the criminalization of speech. Free speech is not an absolute, static concept. Most societies may need to draw a line in the sand at times, and many have. As the classical exception has it, crying “Fire!” in a crowded theater is not protected speech. But regardless of our personal positions on this issue, free speech is liable to be the bellwether issue on where modern bourgeois societies are headed in terms of actual civic freedoms. AS A PASSIONATE (arguably extremist) left-wing ideologist, I have an admittedly reflexive tendency to regard askance anything that right-wing ideologists have to say about anything. If I open a newspaper or magazine to an editorial and see the byline of a well-known right-winger, the chances that writer will receive even a shred of benefit of the doubt from me are slim indeed. It is for that reason that I try very hard not to see the author’s name when perusing editorial articles or essays.
(I’ve often mused that society as a whole might benefit from a measure of source anonymity when it comes to editorial writing. Imagine how much more would be demanded of our intellectual resources and imagination if we were denied the opportunity to judge first and consider second — if at all.)Now, for the most part, it’s fairly easy to discern in the first few paragraphs the political bent of any given editorialist; easier still if one’s own political beliefs and opinions contrast or coincide strongly with those of the author. Occasionally — often enough to make it unremarkable — I disagree with a writer whose political attitudes I share. Far less often, and thus more jarringly, every once in a while I find myself in agreement with someone whose opinions usually drive me to enraged distraction.
Such was the case on June 17th, 2008…
On the morning in question, I sat down to my newspaper and flipped, as is my wont, to the Opinion section of the Los Angeles Times. FIrst I read the editorials, then the letters to the editor, saving for last, as is also my wont, the Commentary section. There, a rotating group of several columnists offer their views on a myriad of topics — usually current events, though not always.When I arrived at the Commentary section, I commenced to reading the first essay whose title caught my eye, while avoiding the byline: Canada’s Thought Police. The gist of the essay? “Hate speech” should not be criminalised. Though I cringed at the dismissive inclusion of quotation marks around the phrase, I agreed with the rest of the author’s observations and assertions.
When I’d finished reading, I glanced at the byline and nearly vomited: Jonah Goldberg???
I hate Jonah Goldberg! No, you don’t understand — I HATE him. HATE, HATE, HATE him! I cannot abide the idea of agreeing with him on any subject, let alone one so dear to my heart: Freedom of speech. But there it was, in literal black and white. One of the columnists who routinely elicits from me a visceral, unmitigated loathing just espoused an ideological tenet of mine.
Of course, I exaggerate the extent of my shock; on many an occasion over the last few decades I have experienced similarly jarring moments of momentary alignment with those on the “other side” of America’s simplistic political fence. In this era of “I’m right, you’re wrong” (or, in my case, “I’m left, you’re wrong”), anyone as entrenched in that mindset as many of us are can find it mildly disturbing, if not earth-shattering, when two people intractably devoted to their respective sides of that fence occasionally and disconcertingly discover common ground.
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Now, about that common ground…
If there is one topic that best illustrates my oft-declared belief that the line between extreme right-wing ideology and extreme left-wing ideology is so thin as to be nearly invisible, it is the topic of “free speech.”
Frankly, the only discernible difference at times between the extremes of both ideologies when it comes to speech and the limiting thereof is the type of speech they each wish to inhibit — via legislation, that is.
For example: An extreme right-wing ideologist might wish to enact laws prohibiting the burning of a flag or the utterance of “profanities”; many extreme left-wing ideologists, on the other hand, can regularly be counted on to wish prohibited the type of speech most commonly referred to nowadays as “hate speech” — that which is derogatory or offensive to certain groups of people (usually maligned minorities or religious groups).
The laughable irony being, of course, that the same people whom a left-wing ideologist would wish to contradict in most cases would, should laws against hate speech arise, be empowered by those very laws to agitate for their own brands of prohibited speech. The tenuous rationale behind banning hate speech would very quickly — and logically — be applied to other types of speech.
Call it the epitome of oxymoronic concepts: “Limited freedom.”
There is no such thing as limited freedom when it comes to speech. If a society commits itself to the right of its members to say whatever they wish without fear of legal reprisal, that society must accept the inevitability of certain of its members saying things that offend other members of that society.
The logical exception to total freedom of speech is aptly explained by Oliver Wendell Holmes in his majority opinion rendered for 1919’s Schenck v. United States:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] 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.
Note the inclusion of the word “falsely;” obviously shouting “Fire” in a crowded theater that really IS on fire is not only acceptable but necessary.
The irony of Holmes’s exception lies in the fact that the unanimous decision of the Supreme Court in “Schenck v. United States”upheld a ban on distributing anti-draft fliers during World War I. By equating an act of political protest with falsely shouting fire in that crowded theater, Holmes and the Supreme Court completely undermined not only Holmes’s hypothetical and logical exception to freedom of speech — their decision decimated the concept of freedom of speech itself. It took 50 years for the Court to limit the scope of “Schenck” with its decision in 1969’s Brandenburg v. Ohio, which held that speech could only be banned when it was directed to and likely to incite imminent lawless action.
Further irony: “Brandenberg” overturned the conviction of Ku Klux Klan leader Clarence Brandenberg under an Ohio statute banning the advocacy of terrorism. Brandenberg had:
… urged his followers at a rally to “send the Jews back to Israel,” to “bury” blacks, though he did not call them that, and to consider “revengeance” against politicians and judges who were unsympathetic to whites.
Only Klan members and journalists were present. Because Mr. Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.
Goldberg’s column recounts an ongoing legal case in Canada where, of course, the U.S. Supreme Court’s dictum is moot. More’s the pity:[Mark] Steyn — a one-man media empire based in New Hampshire — was published a few years ago in Maclean’s. Now the magazine and its editors are in the dock before the British Columbia Human Rights Tribunal on the charge that they violated a provincial hate-speech law by running the work of a hate-monger, namely Mark Steyn. A similar prosecution is pending before the national version of this kangaroo court, the Canadian Human Rights Commission.
Not that the facts are relevant to the charges, but here’s what happened. Maclean’s ran an excerpt from Steyn’s bestseller, “America Alone.”
The Canadian Islamic Congress took offense. It charged in its complaint that the magazine was “flagrantly Islamophobic” and “subjects Canadian Muslims to hatred and contempt.” It was particularly scandalized by Steyn’s argument that rising birthrates among Muslims in Europe will force non-Muslims there to come to “an accommodation with their radicalized Islamic compatriots.”
Goldberg continues, citing a New York Times article by Adam Liptak about the Steyn/Maclean’s case:
“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,” Professor Schauer continued, “all such speech remains constitutionally protected.”
Canada, England, 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.
Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep.
By contrast, American courts would not stop a planned march by the American Nazi Party in Skokie, Ill., in 1977, though a march would have been deeply distressing to the many Holocaust survivors there.
Distressing to Goldberg — and to me — is Liptak’s seeming implicit concurrence with several experts cited in his article who suggest that the broad scope of the United States’s Constitutional protection of freedom of speech should be limited to exclude speech designated as “hate speech:”
Some prominent legal scholars say the United States should reconsider its position on hate speech.
“It is not clear to me that the Europeans are mistaken,” Jeremy Waldron, a legal philosopher, wrote in The New York Review of Books last month, “when they say that a liberal democracy must take affirmative responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.”
Professor Waldron was reviewing “Freedom for the Thought That We Hate: A Biography of the First Amendment” by Anthony Lewis, the former New York Times columnist. Mr. Lewis has been critical of efforts to use the law to limit hate speech.
But even Mr. Lewis, a liberal, wrote in his book that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he called for a re-examination of the Supreme Court’s insistence that there is only one justification for making incitement a criminal offense: the likelihood of imminent violence.
The imminence requirement sets a high hurdle. Mere advocacy of violence, terrorism or the overthrow of the government is not enough; the words must be meant to and be likely to produce violence or lawlessness right away. A fiery speech urging an angry mob to immediately assault a black man in its midst probably qualifies as incitement under the First Amendment. A magazine article – or any publication – intended to stir up racial hatred surely does not.
Mr. Lewis wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement.
“I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”
. . .
The United States’ distinctive approach to free speech, legal scholars say, has many causes. It is partly rooted in an individualistic view of the world. Fear of allowing the government to decide what speech is acceptable plays a role. So does history.
“It would be really hard to criticize Israel, Austria, Germany and South Africa, given their histories,” for laws banning hate speech, Professor Schauer said in an interview.
Let me now stipulate to the fact that there is such a thing as hate speech, that it is anathema to any decent and just society and that it would be truly wonderful if such speech were never uttered again, in public or in private.
But as compelling and righteously motivated as calls for criminalising hate speech can be, observation and analysis of several nations’ laws against hate speech and prosecutions of those accused of perpetrating it are more than enough for Americans to extrapolate the dangers of following their example. As Liptak notes, one of the basic arguments against criminalising hate speech lies in our totally justified and reasonable “[f]ear of allowing the government to decide what speech is acceptable…”
The legal concept of “hate crimes” inspires the same trepidation in me: It renders criminal the motive behind the commission of a crime. It criminalises the thoughts of the perpetrator of a crime in addition to the crime itself. This is not only unnecessary in our legal system, which has more than enough ways to prosecute and punish people for committing heinous acts; it is one more step in the ominous creep of government interference with and control of individual liberties in our society.
Appealing as it may be to add extra punishment to a criminal’s sentence if his act was motivated by racism, homophobia, religious furor or any other form of bigotry, the fact remains that (to mix my metaphors) once the bell of criminalising certain types of thought has been rung, the door is wide open for any avenue of perversions of those well-intentioned statutes — essentially reversing the progress of the Constitutional protection of freedom of speech made over the past two centuries. When the prevailing attitudes of a society, rather than its codified, tested and confirmed legal framework, steer the course of its system of justice, all members of that society suffer the tyranny of popular opinion.
The history of this country, before and after its ratification of the Declaration of Independence and its Constitution, is rife with proof of that sad truth: from the slaughter of women named as “witches” for any number of specious (and often political) reasons, to the rationalisations for the wholesale genocide of Native Americans as merely inhuman “savages,” to the near-universal embrace of slavery, to the firmly entrenched, vastly believed “truth” of the moral arguments against “miscegenation” to the widely-held opinions of those who would deny the right of marriage and its benefits and responsibilities to homosexuals — to mention just a few of the more egregious examples.
Throughout our history, the United States (specifically, its legal system) has proved itself capable of moral relativity of the best and worst sorts. Its path has not been one of consistent forward progress; more aptly, its rise upward toward the ideals espoused by its founders and its moralists is better described as a spiral one — slowly crawling upward and falling slightly back before resuming ascent.
Of course, inherent in acknowledging such progress is an acceptance of those ideals as proper and moral in themselves. There have always existed those who disagreed violently with certain benchmarks of said progress — most often those which granted or acknowledged rights and furthered equality between various groups in American society — and even considered them benchmarks of a path toward iniquitous immorality.
For example: Doubtless such a mindset exists today in a considerable number of our society who passionately oppose the slow but hopefully inexorable movement of our legal system’s evolution toward upholding the civil rights of homosexuals with respect to the legal institution of marriage and its federally mandated rights and responsibilities. A small but vocal minority among them could rightly be accused of hate speech: Fred Phelps and his followers regularly carry picket signs announcing their god’s hatred and loathing of homosexuals.
Every individual has the right to believe whatever he wishes and say as he wishes, and no one should be punished for his beliefs or his words, regardless of how abhorrent they may be to anyone else in society — even to the majority. Tempting as it may be to enact laws proscribing such patently ugly, distasteful, hateful speech as that practised by the Phelpses of our society, to do so would directly contradict the (correct) Constitutional assumption that each individual should be free to say whatever he wishes unless what he says incites imminent violence or physical danger to others.
… Harvey A. Silverglate, a civil liberties lawyer in Cambridge, Mass., disagreed. “When times are tough,” he said, “there seems to be a tendency to say there is too much freedom.”
“Free speech matters because it works,” Mr. Silverglate continued. Scrutiny and debate are more effective ways of combating hate speech than censorship, he said, and all the more so in the post-Sept. 11 era.
“The world didn’t suffer because too many people read ‘Mein Kampf,’ ” Mr. Silverglate said. “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”
Mr. Silverglate seemed to be echoing the words of Justice Oliver Wendell Holmes Jr., whose 1919 dissent in Abrams v. United States eventually formed the basis for modern First Amendment law.
“The best test of truth is the power of the thought to get itself accepted in the competition of the market,” Justice Holmes wrote.
And therein lies the proof that, while it may take an agonisingly long time, American society eventually places its own social strictures against hate speech. Not so long ago, most of this country thought nothing of referring to African Americans as “niggers.” Politicians used the word in their respective houses, employers used it while interviewing blacks for jobs… Such behaviour today is not only frowned upon — it results in the wholesale societal shunning of its perpetrators. The word hasn’t disappeared; far more people use it as an epithet than polite society would like to know. But the fact remains that it has become speech that is unacceptable to most Americans — and it didn’t take a law to make it so.
So, too, should be our approach to all hate speech. We know it when we hear it or read it; and the fear of universal reprisal from one’s fellows is a far more effective bar against uttering the words of intolerance, hatred and ignorance than what would of necessity be a set of frighteningly mutable laws leaving it to whichever government happens to be in power at any given moment. The righteousness motivating the creation of such laws would not only fail to mitigate the infringement of the individual’s right to freedom of speech; it would provide the sort of loophole in our Constitution we more often than not come to abhor, like those created by similarly ill-considered precepts validated by the Supreme Court over this nation’s history (Plessy v. Ferguson, Whitney v. California, Dennis v. United States, et al.).
“I think that we should be eternally vigilant,” [Holmes] added, “against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”
In his dissent against the majority verdict in Dennis v. United States. Justice Hugo Black wrote,
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection….
There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.
In that case, Black was referring specifically to the unconstitutionality of certain aspects of the Smith Act, which made it a crime to knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.
Though the case dealt with a different sort of speech — namely, political speech — Black’s opinion ought to be applied to any law proscribing hate speech. Restricting freedom of speech on the basis of “mere reasonableness” provides sanction for any prevailing attitude and interpretation of defined “hate speech” that may arise at any time. Though most people now agree that calling someone a “kike” or a “raghead” is hate speech, there is no guarantee that in the future such a label might not be applied to anyone who writes in strong language a condemnation of any political, religious, cultural or racial aspect.
The Constitution’s protection of the right to freedom of speech is arguably the most important, most powerful and most effective piece of the foundations of our free society. It should outlast, outstrip and outweigh any societal or cultural customs or barometer; we have proved as a society fully capable (albeit often too slowly) of adapting to or rejecting those customs without need of laws enforcing or forbidding them.
Freedom of speech in this country is, actually, the very reason our society has been able to adapt itself to changing values and moral attitudes. Without it, had people been forbidden by law to decry unjust laws and practices (like, for example, slavery, women’s exclusion from voting and the racist Jim Crow laws), we might not have progressed as far or as quickly as we have in American society.
As repellent as it is to reasonable people, hate speech must receive equal protection under the Constitution; the propensity of the well-intentioned to take their goals to extremes looms just as dangerously on the horizon as does the desire of any bigot to convince others to his noxious way of thinking. Such has been the case with any number of well-meant laws taken to absurd depths, unencumbered by logic or context; consider the immeasurable variety of bizarrely dissonant incidents surrounding the application of laws created for society’s protection alone — laws meant to protect citizens which ended up further encumbering them because their wide scope subjected their application or interpretation to mutations best described as “unintended consequences.” Now imagine what might arise from merely benign or well-intentioned application of laws against hate speech; the possibilities for annoying, let alone tragic, consequences are endless. It doesn’t take a great leap of imagination to further speculate what might occur should the enforcers of our laws apply them for malignant purposes; after all, we’ve seen it happen countless times before.
The onus of enforcing the sorts of moral codes which hate speech laws purport to protect should and does fall on society as a whole. The reprehension of society, making a pariah of one who insists on breaking those codes, is sufficient to affect progress. Indeed, society’s disapproval is already too powerful a force, as those shunned for being transgendered can attest. God forbid we codify in law our most fluid societal behaviours any more than we already do — it’s difficult enough fighting the uphill battle against existing unjust laws, let alone creating more.
And make no mistake: any law restricting our freedom of speech by denoting as “hate speech” that which offends the sensibilities of many due to its bigotry and venal nature will become perverted and used toward ends its supporters never intended. We have available the example of those other countries and the variety of instances wherein people have been found guilty of hate speech for merely expressing their opinions:
“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.”
Ignorance, stupidity, venality or sociopathy may result in the propagation of idiotic and virulent ideas; such is life on planet Earth. But imagine, please, what The Sound of Music would be like without the oppressive presence of a Nazi flag unfurled on Captain Von Trapp’s estate. Ah, yes… what about art? Must there be, when writing hate speech laws, exceptions built into them? What qualifies as art, as opposed to propaganda? Who decides?
I am unaccustomed to feeling any sort of pride in my country, let alone gratitude for being a citizen thereof. Generally speaking, I more greatly esteem the European societies and what seems to me their less conservative attitudes toward many issues than those of my fellow Americans. But with the emergence of these hate speech laws I believe these countries have stepped over that thin line from extreme liberalism to extreme conservatism. In seeking equality, justice and peace, the natural goals of any free society, they have made their society less free.
I only hope that the Constitution of the United States of America remains the bulwark it has proved itself occasionally able to be against the vicissitudes of such well-intentioned but ill-considered “progress.” Any restriction of our rights ought to be narrow in scope, and only the most egregious of societal ills addressed in such a manner.
Maryscott O’Connor, a senior contributing editor at Cyrano’s Journal Online, is the founder and editor in chief of a fraternal blog, Myleftwing.com, noted for its brave topicality. Myleftwing.com is in many ways emblematic of the future direction of citizens’ media.