FOCUS
Calls to ban hate speech ultimately go nowhere
By Bob Rees
Longtime Honolulu writer
Because we abhor the language of hate, generally defined as speech expressing hatred or bias toward racial, religious or other groups, an increasing number of us have adopted the popular sentiment that it be banned. Recently, for example, an article in The Advertiser on Jan. 17 reported that a forum on "Hate Language and Its Consequences," held in Hawai'i in conjunction with the Martin Luther King Jr. holiday, had concluded that hate speech should not be protected by the First Amendment.
Associated Press library photo • Jan. 15, 2001
An examination of the specific arguments used in support of criminalizing hate speech reveals that each is powerful, but that each is even more powerfully flawed.
Martin Luther King Jr.'s "I Have a Dream" speech symbolizes a need to protect free speech, especially on unpopular issues.
The most persuasive argument for banning hate speech is that it undermines equality not only for individuals, but also for entire classes of people. This is a view first advanced by feminist lawyer Catherine MacKinnon in making her case that pornography be banned because it is oppressive to women. First Amendment freedoms, this argument goes, must give way to the requirements of the Equal Protection Clause of the Fourteenth Amendment.
The difficulty with linking speech to equal protection is that it rests on the dangerous premise that only speech and publications in alignment with the Equal Protection Clause ought to be permitted. Further, the approach fails to distinguish between offensive speech and offensive speech delivered "under color of state law,'' a circumstance precisely the reverse of what the Founding Fathers intended.
A second argument for banning hate speech is that it falls into "the fighting words'' category proscribed by the U.S. Supreme Court in 1942. A Jehovah's Witness was convicted of calling a city marshal "a damned fascist," and the court upheld his conviction in Chaplinsky v. New Hampshire.
Since 1942, however, the court has not upheld a single "fighting words" conviction, and has held that fighting words occur only when, as one writer puts it, there is "a quite unambiguous (face-to-face) invitation to a brawl." It is a limited and nearly extinguished doctrine that won't help those who seek to ban hate speech.
A third argument for banning hate speech also comes from the Chaplinsky case. In his opinion for the court, Justice Frank Murphy famously wrote that the right of free speech is not absolute, and that some types of speech, from the lewd to libel, are not protected. Why not, then, carve out another exception for hate speech?
Previous attempts to do so, from the Sedition Act of 1798 to the more recent speech codes of our universities, have exposed the problems inherent in this approach. The Sedition Act's most famous conviction was of someone who described President John Adams as a "hoary-headed incendiary."
University speech codes have done no better. In 1988, the University of Michigan developed a code subjecting students to discipline for any utterance "that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status."
Presumably, if the code had not been declared unconstitutional, it would have been updated by now to protect Persian Gulf War veterans and those involved with the war on terrorism. That is, any hate speech exemption leads to absurd extensions. Rush Limbaugh will no longer be permitted to refer to Feminazis. The term Religious Right, offensive to some Christians, will be exorcised.
A fourth argument for banning hate speech is that it constitutes libel, a category of false and defamatory speech generally not protected by the First Amendment. Ironically, the weakness of this argument, and of the use of libel laws to curtail free speech, was exposed in a case that centered on Martin Luther King Jr.
On March 29, 1960, the Committee to Defend Martin Luther King ran an ad in the New York Times. The ad cited the "wave of terror" inflicted by government officials in the South. A city commissioner in Montgomery, Ala., L.B. Sullivan, sued for libel on the grounds that the ad had charged him with "grave misconduct." An Alabama jury awarded him $500,000.
However, the U.S. Supreme Court, in New York Times v. Sullivan, saw this suit for libel as a threat to discourse about public officials. In response, the court developed a whole new law of libel. From now on, said the court, even a false and defamatory statement about a public official is protected by the First Amendment unless made "with knowledge that it was false or with reckless disregard of whether it was false."
Besides the self-defeating difficulties inherent in the four main arguments in favor of banning hate speech, there are four additional reasons not to do so. Foremost is that it will start the process of amending the First Amendment, the most precarious slippery slope of all.
Second, regulation of hate speech will put the government squarely into the forbidden arena of targeting expression based on its content. Who knows what content the government won't like tomorrow?
Third, as Nadine Strossen of the American Civil Liberties Union notes, racial insults constitute only a small portion of racist expression. These epithets are highly disfavored in today's society, and serve only to demonstrate that the speaker is a fool. Banning them won't solve anything but will create a dangerous precedent.
Finally, an attempt to ban hate speech runs counter to the proven doctrine that the cure for speech we don't like is not governmentally enforced silence, but more speech. In America, the best cure for hate speech is speech aimed at hate speech.
