Professor of sociology Tony Cortese analyzes the history of hatespeech and the First Amendment in America in the second of atwo-part series.
FIRST AMENDMENT ISSUES
In the United States and other Western democracies, free speechand freedom from discrimination are regarded as fundamental rightsthat most citizens take for granted. But what happens when thesetwo rights clash? Which right carries the trump card? There is noplace in a democratic society for book burning or censorship.Freedom of expression is the ultimate good. It is a basic right inevery democracy. But just as essential is the right not to bediscriminated against. Certainly, in a democratic society allpeople are guaranteed equal treatment and protection under thelaw.
Discrimination — treating various categories of peopleunequally — is clearly contrary to the democratic principleof equality. Any democratic government is therefore expected to uselegislation and other means to protect its citizens againstdiscrimination. Freedom of speech is the foundation of anydemocratic society. It should be possible to freely and publiclyexpress a vast range of ideas, opinions and concepts.
A democratic government will use many means, includinglegislation, to guarantee its citizens free speech. But freedom ofexpression does not mean that anyone can get away with saying orshouting anything one wants to in public. The United States hasregulations and laws that set limits of freedom of expression. Forexample certain forms of slander are regarded as punishableoffences, as are the spreading of particular lies and theincitement to murder or commit violence. Legal innovation is ameans to sanction hate speech, providing protection fromdiscrimination.
The United States takes a distinct approach to the conflictbetween free speech and the ban on discrimination compared to thedemocratic societies in Western Europe. In the United States, thereis genuine reluctance to set limits on freedom of speech. In fact,according to the First Amendment of the American Constitution,lawmakers may not pass any legislation that unnecessarily limitsfreedom of speech.
In Western Europe, there is a greater tendency to place limitson freedom of expression if the right to protect againstdiscrimination is at issue. The constitution of the Netherlands,for example, begins with a ban on discrimination: all residents ofthe country must be treated equally under equivalent circumstances.Other countries of Western Europe are also more inclined to limitthe freedom of speech than in the Unites States. For example, inmany Western European counties, public denial of the Holocaust is apunishable offense. Here, it is not.
When hate speech is antithetical to the underlying democraticprinciples that inform both the First Amendment and the equalprotection clause of the Fourteenth Amendment, it should berestricted. The strong link between hate speech and hate crime, andloss of liberty experienced by victims of hate speech, makesevident the contradiction between First Amendment absolutism andthe democratic goals of liberty and equality. There is a criticaldistinction between dissent — the right to criticize thepowerful institutions that govern our lives — and hatespeech, which is directed against the relatively powerless segmentsof our society.
WORDS THAT WOUND
We should recognize the grave injuries inflicted by racist hatespeech and the potential tensions between legal solutions to thoseinjuries and the First Amendment.
Sociology, psychology and political theory can be used toexplain the nature of such harm. Values central to the FirstAmendment itself are subverted by hate speech.
Racism is the cause of this selective disregard. The inhibitionto restrict hate speech is based on unconscious racism. TheAmerican Civil Liberties Union has issued a policy statement thatreflects sensitivity to the damage that hate speech does to bothits victims and to the political discourse that the First Amendmentis intended to protect.
Oftentimes, victims of hate are unable to articulate what theyfeel. They may internalize the injury, rendering them silent in theface of continuing injury. The origins are often masked in thelanguage of shared values and objective legal principles. Ifideology is deconstructed and the harm generated from hate speechis identified and defined, degraded victims find their voices. Theydiscover their subordination is hared, thus enabling collectiveempowerment.
The thread of subordination weaves through analyses of hatespeech, legal history, affirmative action, desegregation, religiousfreedom, civil rights and reparations.
Not surprisingly, there has been a vigorous backlash toaffirmative action. In academia, this backlash has been ostensiblypolite, using code words such as merit, rigor, standards,qualifications and excellence.
Those who favor regulating hate speech have been labeledintolerant, silencing, McCarthyists and censors. The language ofthe debate provides a multi-layered blanket of meanings.
Traditional interpretations of the First Amendment armsconscious and unconscious racists — both members of the KuKlux Klan and political liberals — with the right to beracist. Accordingly, racism is merely another idea that deserves tobe protected by the Constitution.
The First Amendment is misused to nullify the only substantivemeaning of the equal protection clause of the Fourteenth Amendment,that the Constitution requires the unstructuring of racistideology.
Freedom and equality are the two major principles supported bythe Constitution. Freedom connotes freedom from degradation,humiliation, battering, starvation, homelessness, hopelessness andother forms of violence to the person that deny one’s fullhumanity.
The danger of white supremist groups such as the White AryanResistance, the Ku Klux Klan and the neo-Nazi skinheads surpassestheir violent hate crimes.
Their mere existence and the active distribution of racistpropaganda result in the nullification of personal security andliberty for targeted victims in their everyday life.
Consequently, formal criminal and administrativesanction—public vis-à-vis private prosecution—isan appropriate reply to hate speech.
This push for a formal, legal-structural response to hate speechflies in the face of a long-standing and healthy mistrust ofgovernment authority. It opposes our tradition of tolerance that isprecious and valuable yet fragile.
The basic purpose for the legal restriction of hate speech is toreinforce our commitment to tolerance as a value.
