Hate Speech Feat
The Case for Hate Speech

By July 20, 2015

Disappointingly, when discussing free speech and its value to society, I have become accustomed to some variant of the inevitable rejoinder: “Hate speech is not free speech.”

This maxim has been repeated in discussions about everything from the protest against portrayal of the prophet Muhammad to the controversy surrounding the Confederate battle flag. It has been parroted by nationally syndicated news personalities under the guise of constitutional truth. I have seen it painted without irony on the free speech wall of my own college.

Just as with free speech, there is a distinction to be drawn between hate speech in a legal context and hate speech as a more abstract concept. I would submit, however, that regardless of whether we are speaking legally or conceptually, “hate speech” can prove valuable to public understanding and must be protected.

In the United States, hate speech is not a recognized exception to the free speech protections under the First Amendment. Put simply, the vast majority of “hate speech” is free speech. In the 1969 Supreme Court decision Brandenburg v. Ohio, the justices assessed speech that would be considered “hate” by most people’s colloquial definitions: at issue was a Ku Klux Klan leader’s inflammatory speech urging listeners to take revenge on racial minorities. The court held that it did not constitute an incitement of lawlessness and was therefore constitutionally protected.

Similarly, in R.A.V. v. City of St. Paul, the court overturned a teenager’s conviction for burning a cross on a black family’s lawn. In R.A.V., the content of speech was determined to be an inadequate justification for prohibition. The right to the undoubtedly hateful speech of the Westboro Baptist Church was also upheld in Snyder v. Phelps, which dealt with the members’ protest ahead of a soldier’s funeral. The judgments in these cases establish a strong precedent against any sort of legislative attempt to punish hate speech in the United States.

To say that hate speech is not free speech in America is plainly false. The judiciary comprehends the imprudence of allowing a centralized authority to regulate not just what one is allowed to say, but what one is allowed to hear.

One of FIRE’s co-founders, Alan Charles Kors, when talking about the importance of protecting hateful speech, recalls a scene from Robert Bolt’s play A Man for All Seasons. In it, Thomas More states his refusal to arrest Richard Rich, a man who later conspires to have More convicted on false pretense, even “[i]f he were the Devil himself until he broke the law.” Upon hearing this, Roper, More’s zealous son-in-law-to-be, asserts that he would cut down every law in England to get after the Devil. More responds:

And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws all being flat? … This country’s planted thick with laws from coast to coast – Man’s laws, not God’s — and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then? … Yes, I’d give the Devil benefit of law, for my own safety’s sake!

The question More poses evokes another: Who watches the watchmen?

If the law is thrown aside in order to prosecute some nebulous “bad,” what will happen to the “good” when the roles are reversed? If hate speech is to be defined, who gets to say what it is and is not?

This problem is not at all hypothetical. A recent example in Britain demonstrates how this can be abused. As a last ditch ploy to woo Muslim voters in the United Kingdom, Labour party candidate Ed Miliband promised to make criticism of Islam a crime. And in France, following the Charlie Hebdo killings (which some seem to believe was a justified reaction to hate speech), authorities arrested, among others, comedian Deiudonné M’bala M’bala for a Facebook post expressing solidarity with Amedy Coulibaly, one of the shooters associated with the attack.

Thankfully, American legislatures cannot enact laws authorizing this sort of action. But as universities seek to suppress a broader range of speech they deem hateful, the power to control what students and faculty may discuss settles increasingly into the hands of campus administrators. This is of immediate concern to those who hold unpopular views. As Bolt’s Thomas More suggested, those who support administrators exercising discretion in this way might start to have their own viewpoints banned when the winds change.

Many will argue that speech can be both valuable and hateful, and many see offensive comedy and criticism of Islam as examples of that concept. But what about a more exclusive definition of hate speech limited to the most apparently unacceptable and frequently outlandish ideas? Is there any intrinsic value in Holocaust denial or advocacy of genocide?

In his book Freedom From Speech, FIRE president Greg Lukianoff says, “I believe the even greater failure of higher education is neglecting to teach the intellectual habits that promote debate and discussion, tolerance for views we hate, epistemic humility, and genuine pluralism.”

Why not ask ourselves how we know that the Holocaust occurred? Ideas are like muscles—they atrophy if they are not properly exercised. Which is preferable: a person who accepts the Holocaust’s historicity based exclusively on the fact that it is what they have been told, or a person who experiences doubt and examines original documents, meets people with serial numbers tattooed on their arms, and visits the death camps or the mass graves? The fundamental point of epistemic humility is that it is not enough for a person to believe the truth; they should believe the truth for the right reasons. A quotation attributed to Aristotle, and wise regardless of the original source, goes, “It is the mark of an educated mind to be able to entertain a thought without accepting it.”

Some ideas are repugnant, and some people will hold these ideas against all reason. Even so, there is something to be learned from seeing a person express such an idea, if not from the idea itself. Ken Miller, an alumnus and professor at Brown University, penned an article describing the most unforgettable speaker he ever heard at the university. The leader of the American Nazi Party, himself a Brown alumnus, had come to speak. Miller learned firsthand the charisma with which pernicious ideas could be expressed. He understood the “allure” of fascism. Such an experience afforded students a visceral understanding both of history and of their own vulnerability. It was then perhaps the speaking, and not the speech, that was of lasting value.

If such lofty academic idealism fails to persuade, perhaps the simplest reason to permit such speech is that, as FIRE’s co-founder, Harvey Silverglate, put it: “If there are Nazis in the room, I want to know who they are so that I can keep an eye on them.”

James Altschul is a FIRE summer intern.