Should Hate Speech Be Protected?
Earlier in the year, the entire internet seemed to be asking “Can I punch a Nazi?” Vice asked an ethicist to answer that question (“No”). Even the New York Times got in on the Nazi-punching action. Overall, the tone on social media and news sites trended toward bemused. It’s a Nazi after all. Who or what is more punchable?
Unsurprisingly, the tone changed in August. Violence between protesters and counter-protesters erupted at a “Unite the Right” rally in Charlottesville, Va., and a white supremacist drove a car into a crowd of counter-protesters, killing one person and injuring many more.
In the United States, unless it crosses the line and becomes incitement, fighting words or a “true threat,” hate speech is protected by the First Amendment, a fact pointed out by several commentators in August, and probably by some people in your social media feeds as well.
Principle or prejudice?
So everyone who responds to these incidents with “Free speech!” are principled constitutionalists? Not so, according to a recent study by Mark H. White and Christian Crandall of the University of Kansas. They found that “explicit racial prejudice is a reliable predictor of the ‘free speech defense’ of racist expression.”
In other words, many of those who defend racist speech using the First Amendment do not do so on principle. Rather, they defend prejudiced speech because they feel that they themselves are under attack. In a roundabout way, prejudiced people fall back on the “free speech defense” in order to protect their own prejudices.
“We think of principles as ideas we use to guide behavior in our everyday lives,” White said in a news release about the research. “Our data show something different—that we tend to make up our mind on something based on our attitudes—in this case, racial attitudes—and then decide that the principle is relevant or irrelevant. People do whatever best fits their pre-existing attitudes.”
“For the prejudiced person,” the First Amendment applies “when it suits their needs but is absent when it does not,” Crandall said about the findings.
Thinkers like Ta-Nehasi Coates have been arguing this for years.
"Racism is not merely a simplistic hatred," Coates wrote in an article for The Atlantic. "It is, more often, broad sympathy toward some and broader skepticism toward others.”
If you give one group of people the benefit of the doubt, but hold another to a different standard, there’s undoubtedly some form of prejudice coming into play.
Free speech and the First Amendment
Speech is “freer” in the United States than virtually anywhere else in the world. Former U.S. Supreme Court Justice Oliver Wendell Holmes once said that the freedom of speech does not protect someone “falsely shouting fire in a theatre and causing a panic.”
In the United States, changing any part of the phrase above means the speech would be covered by the First Amendment. If there really was a fire, the person would be a hero, right? If they whispered it, they probably wouldn't cause a panic. If the false announcement was blasted over the speaker but no one panicked and just sat there, then no harm, no foul.
The United States’ allies, on the other hand, might arrest the speaker in this scenario based on their intent, even if no one got hurt. Most of them also have laws restricting hate speech. Can the United States do this as well, at least without throwing the First Amendment out with the bathwater?
Can the United States restrict hate speech?
The answer is “probably...?” The United States' interpretation of “freedom of speech” is very broad. However, free expression is not the only right found in the U.S. Constitution and hate speech could easily fall into several of the categories of unprotected speech.
In the end, it probably depends on why the United States protects free speech in the first place. Unsurprisingly, the U.S. Supreme Court has never addressed this question, meaning that in order to determine why we have free speech, we may need to use–yes, you guessed it–our right to free speech.
'Freedom for the thought we hate'
As Justice Holmes said in a 1929 dissent, “the principle of free thought” is “not free thought for those who agree with us but freedom for the thought that we hate.” That means a principled defense of free speech must apply equally to those we agree with and those we disagree with. It is possible for people to defend racist speech on free speech principles, but as White and Crandall suggest, “we shouldn’t assume that the motives are purely based on an abstract democratic principle, either.”
So, even if you like the free speech message, it’s worth considering the messenger.