I approached today’s topic already supporting the need for freedom of speech in a democratic society (which puts me solidly in the camp with most Americans). But I was also curious about the reasons behind our society’s growing desire to punish hate speech. So I put on my research hat and started digging.

I first want to clarify that I don’t support hateful speech. My philosophy is to respect and be kind to everyone, to live and let live. That’s how I live my life, and it’s what I taught my kids when they were young. I have always done my best to judge someone based on the content of their character and their behavior, not on their personal characteristics (race, sex, etc.). That also makes me open to hearing the arguments for restricting hate speech.

It’s an important topic to consider. A 2015 Pew Research Center Poll reported that 40 percent of Millennials (ages 18–34 at the time) supported some restriction to speech “to prevent people publicly making statements that are offensive to minority groups” (58 percent of Millennials did not support that view). The percentages went down for each preceding generation, with just 28 percent overall support for restricting hateful speech.

The idea of restricting speech has come to the forefront even more as 21^st-century tech giants, such as Facebook, Google, and Twitter, have become the gatekeepers of free expression in their online social media platforms and search engines. A Columbia University professor of journalism, Emily Bell, opined that this gatekeeping function “leaves us at a dangerous point in democracy and freedom of the press” in an age of “fake news” and “election interference.” Additionally, some conservative organizations, such as Prager University, allege that several of the large social media platforms are restricting them from posting certain content.

Several of our European allies have also addressed the issue of hate speech in their laws. In 2017, the UK’s Prime Minister at the time, Theresa May, spoke to the United Nations asking the major tech companies to work harder and faster to combat what she termed “dangerous messages,” and people in both France and Germany have been prosecuted for hate speech crimes.

Yet currently, hate speech is not illegal in the United States, though there are statutes against hate crimes. These laws go back to 1968 when President Lyndon Johnson signed legislation making it a crime to “use, or threaten to use force to willfully interfere with any person because of race, color, religion, or national origin.”

In other words, hate speech has not been defined in U.S. law. In fact, most kinds of hateful speech are protected by the First Amendment to the U.S. Constitution, which states (in full):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It’s important to note here that it is only our government that is restricted by the Constitution from inhibiting free speech. There are also statutes regarding public forums in which speech cannot be constrained. However, private publishers can limit their own (and their writers’) speech as much as they want. So can a business, including your employer.

The U.S. judiciary, including the Supreme Court, has repeatedly affirmed its citizens’ right to freedom of speech, which has only narrowly defined limitations:

• Threats of violence are not protected speech (all threats of violence, not just those targeting a specific group based on race or other characteristics).

• Intentionally inciting immediate violence is not protected. You can’t give a speech urging a mob to go burn down the building you’re standing in front of, for example.

• Sometimes “fighting words” said to someone’s face are punishable, although this is rarely prosecuted (again, the words do not have to target someone based on race or other characteristics).

• Some materials that may be considered obscene can be restricted.

• Releasing information that may pose a “clear and present danger” to national security may be prohibited.

• There are also certain limits to freedom of the press, primarily the prohibition against making false or defamatory statements, known as libel.

So—I wanted to know: What are the arguments FOR prohibiting hate speech? Are they well-reasoned? Or is there an effective argument suggesting that we ought to still allow unfettered hate speech within the context of a free society?

First, we should define the term. Since there is no definition of hate speech in U.S. jurisprudence, let’s look at how Canada defines hate speech in its laws: For Canadians, hate speech includes statements made in any public place inciting or promoting hatred against an identifiable group (excluding private conversation), incitement to genocide and written hate propaganda.

Wikipedia also has a creditable definition: “Hate speech is a statement intended to demean and brutalize another, or the use of cruel and derogatory language on the basis of real or alleged membership in a social group. Hate speech is speech that attacks a person or a group on the basis of protected attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity.”

The main arguments in support of passing legislation against hate speech are as follows:

• Maverick Lynes, a Canadian staff writer for The Free Press, supports his country’s hate speech laws, which he says are “meant to counter racism and bigotry. The law was put in place to prevent the incitation of violence and the promotion of hatred.”

• Historically, genocide has been preceded by an increase in hate speech (examples include the holocausts in Nazi Germany and Rwanda).

• Some research has demonstrated that hateful speech can spur people to hateful, sometimes violent, actions.

• Other research has indicated that hate speech is actually harmful to people and is a form of violence in and of itself, because it causes stress in its victims.

• People should be able to live their lives free from offensive, hurtful speech, especially when it is racist or bigoted.

On the flip side, the main arguments against enacting hate speech laws are:

• The definition of hate speech is subjective, which means that someone in power must determine what it is. This gives the government too much discretion to decide whose speech and what speech to control.

• Countries with dictatorships, state-controlled economies and theocratic governments almost always restrict speech, which allows those governments to maintain extreme control over their citizens’ lives.

• Hate speech laws have sometimes been used to target minority viewpoints, the marginalized or critics of the government in power.

• Hate speech laws in effect in other countries have not reduced the level of hate, racial discrimination or intolerance.

• Laws against hate speech demonstrate a lack of trust in the people of the United States to show sound judgment in their response to hate speech.

For anyone wrestling with this issue, as I was, it really comes down to a decision about what is more important to you: security (you could also think of it as safety) or freedom? Opting for greater security and comfort for our citizens invariably means giving up certain freedoms. It also means that you must trust your government to do what is right in order to maintain a balance between restricting hate speech and still allowing for as much freedom of speech as possible.

Interestingly, the Canadian writer I referenced above, Maverick Lynes, was troubled by this very feature of his country’s hate speech laws. He wrote, “. . . when it comes to hate speech and the controlled freedom it insinuates, where is the line drawn? That is the grey area that is hard to differentiate.”

The strongest arguments for anti-hate speech laws are that (1) hate speech has often preceded genocide and (2) hate speech often prompts people to violence. However, many of the arguments are based on protecting people’s feelings or on preventing potential actions rather than actual behavior.

The weakest argument for maintaining the status quo is that we should trust people to speak out against hate speech when it occurs, since many times people choose to remain silent. Yet the rest of the arguments are backed up by thousands of years of history, in which it has been demonstrated repeatedly that “Power tends to corrupt, and absolute power corrupts absolutely.”

Additionally, the current laws against hate crimes in the United States suffice to punish actual violence based on hateful ideas, and hate crimes generally receive harsher punishments than the ordinary versions of the same crimes. Plus, under the current law, people are already prohibited from making threats of violence or from inciting violence in their speech.

That is why after thoroughly researching this issue, despite my abhorrence for the hateful things that people sometimes say in public forums, I must land on the side of freedom. Like our country’s founders, I don’t always trust the government to do what is right. It’s why the founders instituted a system of checks and balances. And it’s why the first 10 amendments to the Constitution, known as the Bill of Rights, were added before all of the original states (who had just shaken off the tyranny of a monarchy) were willing to ratify it.

The freedoms and rights outlined in the First Amendment, including the freedom of speech and of the press, are fundamental to ensuring that we maintain a truly democratic and free republic in which people can freely speak their mind without fear of government censorship or reprisal.

Supreme Court Justice Hugo Black put it aptly: “The freedoms . . . guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.”

Yet, if we want to be free enough to allow hateful speech to continue, then we should also take the responsibility to speak out against it when it occurs.

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Sources:

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In searching for a focus for this blog, I finally alighted on the idea of WORDS. For a site called “Áccent on Words,” it makes sense. As an editor and writer, I work with words for a living. Words are important to me. But really, they’re important to everyone, and even more so in an age when we’re constantly bombarded with them and continually consume them through social media, television, radio and what we choose to read. My aim is to choose a particular word or phrase as the focus of each new blog post and talk about why our words matter. — Deborah Jackson