Writing for The New York Review of Books blog this week, Georgetown University Law Center Professor David Cole penned a persuasive argument in favor of answering offensive or hateful speech with more speech instead of censorship. FIRE supporters will of course recognize this call—it’s a staple of our work, of First Amendment doctrine, and of life in a democratic society that respects individual autonomy. But familiarity with the argument does not diminish the power of the principles that support it, and Cole’s formulation is particularly lucid and useful.
First comparing the American conception of free speech with that found in other nations, Cole writes:
In the United States, the First Amendment demands tolerance for the intolerant, for speech that insults, offends, derides, and blasphemes. In the age of the Internet, however, the consequences of the speech we protect easily transcend borders. A hateful bigot in California or preacher in Florida can, almost without cost, garner international attention, and provoke international violence. Many other democracies have determined that the cost of “hate speech” is not worth the candle. Australia, Belgium, Canada, Denmark, France, Germany, South Africa, Sweden, and the United Kingdom, among many others, prohibit some forms of “hate speech”—although every country defines the term differently.
Cole points out that the bans on “hate speech” maintained by other countries have been tried here in the United States—on our nation’s campuses, in the form of speech codes. He writes:
And colleges and universities across the country have adopted speech codes that prohibit, in one form or another, hate speech on campus. Adopting arguments of legal scholars such as Mari Matsuda, Charles Lawrence, and Thomas Grey, these institutions have determined that hateful speech, when unchecked, may silence and exclude minority voices, and therefore should be banned or regulated. In public institutions governed by the First Amendment, these codes have generally been struck down by the courts. But in private institutions, they are immune from formal First Amendment challenge (although not from arguments about the importance of preserving freedom of expression in an academic setting).
These codes aren’t just unconstitutional and illiberal, however. As Cole notes, they’re also “flawed, for principled, legal reasons, as well as strategic, political considerations”:
As a legal matter, any attempt to penalize speech because of its offensive content contravenes the First Amendment’s bedrock principle that the government should not be in the business of defining what messages are permissible or impermissible. Arguments for regulating hate speech often take the same form as those made by defenders of laws prohibiting flag burning: if the content of the expression is offensive, and the speech itself is deemed of negligible value, it should be suppressed. But the last thing we need in a democracy is the government—or the majority—defining what is or is not a permissible message.
Second, defining “hate speech” in a way that draws a clear and enforceable line between that which deserves protection and that which can be prohibited is an elusive, and probably impossible, task.
FIRE supporters and those familiar with our case archives will likely agree with these points entirely. Cole’s excellent piece is well worth your time, and I thank him for his clarity.