A few weeks ago, five high school students posted to social media a picture of themselves wearing KKK hoods in front of a burning cross. Not surprisingly, Betty Andrews, president of the Iowa/Nebraska NAACP, one of the oldest civil rights organizations, came out forcefully against the photo.
What was odd was a single but important phrase she uttered in her denunciation. It’s one I’ve heard a lot over the past few years, always in response to controversies like this one. She said:
“We have to be really careful in crossing that line when free speech does become hate speech.”
Hate speech. On the surface, it’s not an odd statement. The image is hateful. But the problem is that here in the United States, “hate speech” and free speech are one and the same. In fact, you could say that “hate speech” doesn’t actually exist.
So why is everyone talking about it?
Maybe it’s because hate speech is a crime in a lot of other countries.
Consider the following:
- A British man was prosecuted for carrying posters saying “Islam out of Britain — Protect the British People” and “Don’t come over to this country and treat it like your own. Britain first.”
- A Belgian man was found guilty of passing out leaflets urging, “Stand Up against the Islamification of Belgium.” This was not an ordinary man, but a member of the parliament! His punishment? Community service and disqualification from holding office for ten years.
These people didn’t bomb any churches. They didn’t lay hands on anyone. Their crime? Expressing negative opinions toward protected groups.
Maybe the prevalence of hate speech laws in other countries is one reason why so many Americans assume we have those laws on the books here too. Maybe that’s why you hear things like, “That’s not free speech, it’s hate speech” every time there’s a controversy. Maybe it’s a confusion with hate crimes (which are illegal in the U.S.). Or maybe it’s just simple ignorance. Some people actually think we have hate speech laws here.
As I’ve been learning in my reading over the last few weeks — they couldn’t be more wrong.
I got the anecdotes above from two books I’ve been reading: Floyd Abrams’s fascinating new book, The Soul of the First Amendment and Aryeh Neier’s masterpiece, Defending My Enemy.
Abrams, a widely respected First Amendment attorney who has litigated cases from the Pentagon Papers to Citizens United, had me — an admitted free speech junkie — hooked from page one.
Neier’s story is even more remarkable: a German Jew saved from certain death in a concentration camp by a matter of days, Neier was president of the ACLU at a time when they famously defended Nazis’ right to march in the Jewish town of Skokie, Illinois. His 1979 book, published a year later, has become a modern classic in the free speech realm.
What both books taught me is the sheer improbability of the First Amendment. The United States in the 20th and 21st Centuries promises citizens protections for speech almost unheard of in the world’s history. Ours is the government that protected the rights of the Westboro Baptist church to picket soldiers’ funerals. Ours is the country that just last year protected a music group’s right to trademark an ethnic slur as a band name (“The Slants”). Ours is the country that not only allows people to make hateful slights toward ethnic groups, but elects that man president. It’s quite remarkable protection compared to most anywhere else in space and time.
But it wasn’t always like this. It was fascinating, for instance, to learn that up until the mid-20th Century, the First Amendment was largely toothless. Newspaper editors were routinely sued and jailed for libel. Men like Eugene Debs went to prison merely for speaking out against the government. A man in Minnesota got jail time for questioning the war effort, telling volunteer knitters, “No soldier ever sees these socks.” The excesses of the McCarthy era are well known.
But then, sometime after the Red Scare quieted down, the Supreme Court began protecting speech more and more strongly — just in time for the burgeoning Civil Rights movement, when the First Amendment protected, for example:
- . . . One hundred and eighty-seven students arrested for demonstrating racial inequality outside the South Carolina State House. The state claimed they’d committed a crime — breaching the peace — because they’d angered onlookers.
- . . . Twenty-three black students arrested in Baton Rouge for picketing segregated lunch counters. They’d apparently produced “muttering” and “grumbling” from white onlookers — which again amounted to disturbing the peace.
- . . . The Reverend Martin Luther King Jr. when he and fellow demonstrators were beaten by cops on the Edmund Pettus Bridge in Selma, Alabama — who neatly claimed they’d do so to stop protesters from entering a dangerous area where they’d be unprotected from the white mob.
Each time, the state tried to prosecute the minority group, and each time the First Amendment blocked the measure. Something that opponents of that disgusting KKK photo would have cheered.
Sensing some irony?
That’s right: when Betty Andrews of the NAACP — one of the country’s most venerable civil rights organizations — cited a difference between free speech and “hate speech” the other week — she tacitly endorsed weakening the very same First Amendment protection of a minority voice that had once allowed her cause to flourish. Both Neier and Abrams teach that censorship happens from both sides of the political aisle. To be born human is to be born wishing to censor your opponents.
We live in a time and place that simultaneously protects our right to say offensive things to an unprecedented degree, yet demands a higher and higher social cost for doing so. In my lifetime, we’ve gone from “gay” and “fag” being routine put-downs to a time when using either word in the workplace could be cause for termination. We’ve gone from Chevy Chase and Richard Pryor hurling ethnic slurs at each other on a Saturday Night Live skit to a time when jobs are lost for much less (such as a Silicon Valley engineer fired for making a joke about laptops with giant “dongles.”) We live in a time that is ever-more sensitive to the nuances of discrimination via language. We live in a culture of online shaming. You say something offensive nowadays and more often than not, you’re going to pay a steep social price.
But we also live in a time of unprecedented social transgression. There is an entire wing of our country that delights using the most taboo, the most crude, and the most offensive language possible. Donald Trump won the presidency in part by thumbing his nose at “political correctness” — the types of word-watching that many in his base have grown tired of — but also by simply saying the most crude, shocking things any politician for president has ever said.
The two sides are completely at odds, and the fights rage over the use of language.
But you know what? I’ve spent the past year thinking that this was a bad thing. And of course it is — if we’re not listening to each other. But as far as hurling words, as far as debating what’s okay to say and what isn’t, even as far as name-calling and vilifying — in some sense, it’s not as bad as I thought. Why? Because, as I’ve learned from studying First Amendment history, one mark of a liberal society is that we do our fighting with words, not with violence. We need unfettered free speech in order to get it all out there. The First Amendment is grounded in an understanding that the stronger idea will usually win in competition in the marketplace. From unfiltered speech, from the clash of divergent viewpoints, no matter how crass, comes truth, or at least consensus. We need to be able to fight through our speech — our words, our public expression, our banners and signs — so that we don’t have to pick up real weapons. It’s the ultimate steam valve release for a vibrant, vigorous democracy.
Right now we have that ability. Yet speech restrictions like hate speech take that away from us — they muzzle the debate, force some ideas underground where they can’t be seen in the light, where they can brood and fester.
But even more than that, people who call for speech codes or who invoke “hate speech” scare me because they seem all-too willing to toss censorship authority to our government. College kids acting on administrators to serve as petty censors under a corporate-academic framework is one thing (like the Emory students who insisted the words “Trump 2016” be banned from campus). But grown adults advocating for hate speech protections on the part of the government seem to me dangerously myopic. Because who’s going to decide what’s hateful and what’s not? It won’t be an enlightened tribunal of spiky-haired hipsters from Park Slope with Buddy Holly glasses sipping craft beer. No, it’ll be the U.S. government. And I don’t think I understood the extent to which our founders didn’t trust government to determine truth until I read Abrams’s book. The founders, Abrams points out, specifically worded the First Amendment in the negative: not “All citizens are guaranteed freedom of speech” but instead “Congress shall make no law . . . abridging the freedom of speech.” The Constitution isn’t in the business of making sure that marginalized groups aren’t bothered by people’s speech; it is in the business of ensuring that government doesn’t try to limit anyone’s free speech — lest next time it be your own.
What really worries me when people start talking about hate speech is the idea that these people — most of whom are committed leftists — want to toss the authority of policing people’s speech to a government led by Donald Trump. Do you really want to trust Donald Trump to decide who is offensive and gets thrown in jail? In fact, Trump’s politics demonstrate the tenuousness of free expression. Trump’s base has taken particular delight in flipping the script on identity politics, casting themselves into the role of white victimhood. Looming behind any righteous censorship coming from the left in the name of protecting minority groups is the clamor of the right, citing the very same victimization and wishing to censor right back.
Abrams writes of a Canadian citizen who was tried for protesting a local public school’s teaching about homosexuality. He was found guilty under a law that prohibits speech that “ridicules, belittles, or otherwise affronts the dignity of any person or class of persons.”
Stop and think for a moment. “Ridicules any person”? Can you imagine that law in Donald Trump’s (tiny) hands? I’d be in jail for that last joke.
Saturday Night Live? Illegal!
Alec Baldwin? Deported!
The New York Times editors? Minimum security out in Utica!
Do you really want to hand Trump the right to determine whose words are criminal? Really?
Of course you don’t.
That’s why we don’t mess with hate speech laws in this country: it sounds noble, but one crack in the concrete and the whole dam bursts open and suddenly you’ll be getting sued or jailed if you criticize your neighbor, your senator, and especially your president.
Aryeh Neier lost a lot of friends and a lot of supporters when he — a Jewish Holocaust survivor — insisted on defending his sworn enemy, the Nazis. “Is this what free speech is for?” his detractors asked. “To let them stand up and say Jews should be killed in ovens?” But what Neier knew is that actually the First Amendment is the best insurance policy that Jews or any other group could have. Time and time again the First Amendment has protected groups fighting on behalf of the Little Guy. Any weakening of the First Amendment free speech protections could come back and bite you. That’s precisely why Neier chose to defend the very people who’d tried to kill his family and he himself: because to defend his own future rights, he had to defend those of his enemy first.
Perhaps it’s a quote by Thomas Jefferson, from his inaugural address, that really sums up the magnanimity of what we’ve built in this country, a place that does not prosecute hate speech, but seeks for a higher standard of conduct and of tolerance from its citizens. Jefferson said:
“If there be any among us who would wish to dissolve this Union or to change its Republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”
What an immensely hopeful statement. Abrams and Neier have made me acutely aware of how much unpleasant, even threatening speech one is forced to hear in America. All the same, when I read statements like that and reflect on how robust our free speech protections are, I realize there’s nowhere I’d rather live.