A Perspective on Free Speech
[hr]Written by Pierce for KGB’s University of Cambridge Lectures, originally written as a blog article
With the rise of white nationalism on a larger national platform after the election of Donald Trump as President of the United States, many leaders and activists alike have been looking into ways to limit the rise of hate speech (or tolerance thereof), leading to the debate on whether hate speech ought to be protected as free speech under the Constitution. For civil libertarians like myself who are adamant to doing anything that would limit peoples civil rights and liberties while reluctant to take the side of ignorant racists, this has been much to our dismay. With decades of Supreme Court precedent and with the principles of democracy in mind, and despite the consensus that racist hate speech is wrong, hate speech must be a protected under the right to free speech of the First Amendment as long as such speech does not incite violence.
It must be understood that to have a functioning democratic republic, there are certain concepts that must first be in place for a successful democratic system. Such concepts are detailed in the First Amendment- the basic human rights to freedom of speech and expression, to practice ones religion or lack thereof, to peaceably assemble and protest, and to open and free thought. Such rights are inherent and unalienable, meaning that we have always had these rights; it is the duty of government to protect citizens liberties to exercise such rights. Therein lies the clarification of the difference between a civil right and a civil liberty- rights are not granted by government or the Constitution, but they are endowed by our Creator in the words of Thomas Jefferson; the Constitution simply mandates that the government must protect such rights and liberty to perform them. Any government that attempts to take away these rights cannot call itself democratic because if citizens cannot use these rights then the government cannot be accountable to the people and it is no longer for the people. The next concepts one must keep in mind for any democratic government are the concepts of separation of powers, checks and balances, and limited government in general; in order to have limited government, each branch of government must be able to check on each other to keep one branch from becoming too powerful, and some powers must be delegated to more localized constituencies. According to Federalist Paper No. 51 by James Madison, the division of government forces the government to control and regulate itself. Now, when one analyzes the Founding Fathers and their efforts to form a federal democratic republic, it must be understood that they did not trust pure democracy due to the impassions of the people to rule with tyranny by majority. Madison argues the following in No. 51:
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great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure
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Madison and other Founding Fathers feared the influence of certain factions that would become the majority to suppress the minority, as the latent cause of faction is self-interest. The remedy to such was not to eliminate the causes of factions completely, Madison reasoned, because liberty is to faction what air is the fire; as the latent causes of faction are sown into the nature of man, these causes are inevitable due to human nature, so it would be foolish to try to abolish it altogether (Madison, Federalist No. 10). One must control the effects of factions suppressing the minority through establishing republic with democratic institutions and concepts in which government could check itself and in which government was limited from suppressing the rights and liberties of the governed. In a stable and functioning democratic republic, no faction can become too powerful to suppress the minority factions; and any coalition of factions cannot suppress ones liberty. With the consent of the governed factions, it is more of a safeguard against ignorant tyrants [and] it is insurance against benevolent despots as well (Walter Lippmann). With delegation of powers and the inherent rights of all citizens, such concepts are important for a government to be legitimate by the consent of the government. All factions are to be protected, represented, or both in a well-run democratic republic, and all factions can check on each other in such a government. The Constitution was formed so that the tyranny of the majority did not oppress the minority by the law; in this case, these white supremacists are the minority. The Constitution guarantees that even the rights of the minority faction is protected by the government and from the majority faction of those who are free-thinking and open-minded. In the words of Aung San Suu Kyi in her speech A Quest of Democracy, the legitimacy of government is founded on by the consent of the people who may withdraw their mandate and that governments are regulated by principles of accountability, respect for public opinion and the supremacy of just laws .
In case it is not yet clear of the context by which hate speech is protected free speech, the reader may take lessons from decades of Supreme Court decisions. In the eyes of the Supreme Court, freedom of speech becomes excessive once such speech incites violence or infringes upon the competing rights of other citizens. According to the Brandenburg v. Ohio case, the Supreme Court struck down Ohio’s anti-hate speech law because the law didnt fulfill their two-pronged test that evaluates free speech, which states: “speech can be prohibited if it is ‘directed at inciting or producing imminent lawless action’” or “likely to incite or produce such action” (Oyez.org). They protected the KKK’s freedom of speech because even if it’s unpleasant speech, it’s still protected. A part of the argument to censor hate speech is that any pro-Nazi or white supremacist speech means that Nazi ideology is automatically advocating for violence against certain groups, which if defined into law is a slippery slope into further suppression of speech. The same excuse could be made to suppress any other group that has historically used violence to push their ideology (Christians, Muslims, Communists, or any person from a historically imperialist country). There is no question that direct violence isn’t covered as free speech, but it sets a dangerous precedent of prior restraint that could be considerable harmful to the free speech of other groups in which their history could be used as justification for censorship. Once government is allowed to censor unpleasant speech, any speech that is socially unpleasant could be used to censor opposing opinion, which leads to authoritarianism. To further understand why even unpleasant speech is protected, one must look at other forms of unpleasant speech. First, in 1984 when Gregory Lee Johnson burned the American flag to protest Reagans policies, he was tried and convicted under a Texas law that outlawed flag desecration. He appealed his case and went all the way to the Supreme Court. In Texas v. Johnson, the court ruled in a 5-4 decision that flag burning was protected freedom of speech as a form of expression; Justice Brennan in the majority opinion asserted that freedom of speech even covers speech that society deems offensive, but the outrage is not reason enough to suppress such speech, stating:
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"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable (Brennan, 491 U.S. 387 1989). In the 1943 West Virginia Board of Education v. Barnette case, the court had to determine whether the Board of Educations requirement for compulsory flag-salute violated the First Amendment right to speech and expression. By a 6-3 decision, the court ruled that compulsory unification of opinion was indeed antithetical to the First Amendment; Justice Jackson reasoned in the majority opinion that:
if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
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Furthermore, in Tinker v. Des Moines, symbolic protest with black armbands in school was declared as protected speech in the political context by the Supreme Court. While students aren’t necessarily guaranteed the full extent of the First Amendment when it comes to disrupting education for others and classroom management according to Morse v. Frederick or what classifies as obscenity that can be censored this case covers what might be unpleasant symbolic speech. Whitney v. California is another case that determines the protection of unpleasant speech is protected as free speech. In this case, Charlotte Whitney, a member of the Communist Labor Party of California, was prosecuted under a state law that prohibited advocating the commission of a crime that included "terrorism as a means of accomplishing a change in industrial ownership or effecting any political change, under which leftist/communist ideology was classified. The court determined unanimously that while freedom of speech was not absolute, this freedom is abused when overthrowing of organized government and public endangerment is uttered. Justice Brandeis famously noted in a concurring opinion:
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Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government… Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence… They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed… Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one’ (Brandeis 274 U.S. 357)."
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In all, freedom of speech can only be legitimately suppressed when there is a clear, imminent, or present danger of serious evils.
In the words of Justice Brandeis, the best remedy against hate speech is more speech, not enforced silence. The best way to combat the abhorrent speech of white supremacists is not to censor them, but to be louder than them; government should not limit unpleasant speech by law, but speech should be regulated by societal conventions. Private companies, politicians, and private citizens must continue to speak out against these views and dispute them, without using the force of the law to censor them (unless the Brandenburg test applies). The Constitution was formed so that the tyranny of the majority did not oppress the minority by the law; in this case, these white supremacists are the minority. The Constitution guarantees that even the rights of the minority faction is protected by the government and from the majority faction. This does not mean that the minority faction’s prejudiced speech has to be socially acceptable. Social norms can continue to place this group as a fringe of society, a taboo of sorts. History has shown that factors such as economic inequality and poverty tend to breed economic frustration, which can be translated into scapegoating certain individuals, groups, and entities. As stated before, when people feel that their government is no longer working for them and that the deck of the economy is stacked against them, there will be figures that take advantage of this frustration by shifting the focus to scapegoats and there will be authoritarians who offer such simple and misguided solutions to complex issues. History demonstrates this with Hitler in the wake of the Treaty of Versailles, which harshly punished Germany through its economy to breed economic frustration to lay the foundations for Hitler to blame scapegoats for the country’s woes. For every push for equality, there will always be those that are accustomed to the privilege that see the push for equality as their oppression. We have to understand their viewpoints, as misguided as they are, and hold productive and meaningful dialogue to disprove the hate speech of white supremacists and to ensure that societal conventions limit such speech from becoming widely acceptable.
[spoiler]Originally posted as a blog post on http://www.thesapiocracy.com/2018/01/when-hate-speech-is-protected-speech.htmlThe Sapiocracy[/spoiler]
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