The First Amendment of the United States Constitution states:
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.
(US Const. amend. I)
The clause about free speech in this amendment has confounded even the justices in the highest court of the United States, the Supreme Court, since its adoption, as is evidenced by the numerous court cases it has inspired and just how hardly fought these cases have been. Most of these cases attempt to answer the question of how far is too far with free speech, and recently, this has been further ignited by the organization of groups who perpetuate hate speech against people of color and minorities. The Supreme Court has reinforced its decision that hate speech is in fact protected free speech to the disdain of many allies of minority communities; however, this disdain is ill-informed (Volokh). The right to free speech, including hate speech, is the most valuable guarantee in the Bill of Rights, and Americans should protect it with their lives; without the right to free speech, nearly every other freedom would cease to exist. Every liberty guaranteed by the Bill of Rights is derived from the fact that in the United States, people can speak and present their beliefs freely without fear of being censored or punished by the government. Without this protection, even seemingly sensible beliefs can be censored, which is exactly why no beliefs whatsoever should face discrimination until acted upon in a harmful fashion, at which point the law may step in.
According to the American Bar Association, hate speech is defined as “speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.” Hate speech is not to be confused with hate crime, in which a clear violation of the law occurs to the detriment of an individual, motivated by the victim’s race, color, religion, national origin, sexual orientation, or disability. Laws against hate crimes do not punish aggressors simply based on their beliefs; they charge based on the actual crime and the heinous and unfair nature of the motive behind the crime. These laws are constitutional because they actually punish discrimination and crime, both of which are perfectly legal to be prosecuted; however, they do not punish the aggressor for simply holding certain beliefs. For example, members of the Ku Klux Klan can not be punished for simply believing that African-Americans are inferior to whites; however, they can be punished under the law for lynching an African-American individual, and their penalty can be made greater due to the discrimination against the African-American due to his or her race (“Debating Hate Speech”).
Recently, many hate groups have become publicized in the media: most notably, the Alternative-Right. A member of this ideology, Christopher Cantwell, is a prime example of hate speech that borders on being classified as unprotected speech. “Cantwell offered racist critiques of black and Jewish people, confirmed that his movement was violent, and defended the killing of Heather Heyer– the 32-year-old woman fatally struck on Saturday by a driver identified as a white supremacist– as ‘justified’,” (Mark). Cantwell confirmed that his movement is violent and claimed that the murder of a liberal, white female was justified alongside other more textbook protected speech, such as racist comments about African-American and Jewish people; however, since he is not Heyer’s murderer and his claim that his movement was violent did not directly incite violence, his speech can not be censored, and he can not be punished for simply saying what he said. According to K-sue Park, “several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.” Park used this instance in order to support her argument that the American Civil Liberties Union should rethink how it handles freedom of speech; however, she is using punishable hate crimes to support an argument about hate speech, which is not valid. About 6,000 hate crimes are reported per year; this is most likely because of the distrust and lack of faith many minorities have in the police force. It is estimated that 191,000 actually occur yearly in the United States (“Ten Ways to…”). According to the Southern Poverty Law Center, there are 892 hate groups currently operating in the United States (“Hate in America…”).
According to a study in the journal Psychosomatic Medicine in 2004, groups who are the objects of hate speech have higher suicide rates (“Hate in America…”). The United States Department of Justice has a warning about hate speech that states that “slurs often escalate to harassment, harassment to threats, and threats to physical violence” (“Ten Ways to…”). An instance that supports this is a Muslim transport worker being called a terrorist before being pushed down a flight of stairs (“Hate in America…”). However, it should be kept in mind that even though hate speech can lead to hate crimes, it is not in any way equivalent to a hate crime and absolutely can not be punished as such. Many advocates of free speech argue that because hate groups are often so small, their effect is proportional to their size. However, according to Jeremy Waldron, author of The Harm in Hate Speech, a few seemingly small incidents can have a larger effect (McConnell).
In light of these alarming statistics, one begins to seek a solution for this festering hatred, and an appealing solution at first would seem to simply punish or censor seemingly “hateful” beliefs; however, if this solution is to be valid, what is “hateful” must be defined, and oftentimes, this definition can be twisted to benefit the majority at the expense of the minority, the very group that potential censors would seek to protect. A valuable solution that does not involve legal involvement or government censorship was demonstrated by the University of Illinois at Springfield. The university allowed notorious racist Mark Hale to speak on campus, and by allowing him to speak, they encouraged the peaceful practice of the principles of free speech, and his audience was not very pleased by what it heard. By letting him speak, the university let Hale’s bigoted views speak for themselves instead of trying to cover them up, and what they revealed appealed to no one present (“Debating Hate Speech”). When hate speech is publicized, most of the time, victims of the crimes are reassured by the abundance of people in the United States who stand up for them and protest on their behalf (McConnell). This demonstrates another valuable method of remedying the potential harmful effects of hate speech: simply speaking up. If bigots can make enough noise to get the attention of the media, surely people with good sense and morals can titrate this ignorance with their infinitely more abundant voices. Most of the time, hateful individuals will take silence as acceptance of their views; they may not even know that there is anything problematic about their views because of this very issue (“Ten Ways to…”). Everyone is scared to tell grandma that she is being racist during Thanksgiving dinner, but chances are, she does not even know that she is wrong or even being slightly politically incorrect. This a wonderful metaphor for how the United States should deal with hate speech; there is no need to trample on First Amendment rights in order to protect minorities and show basic human dignity to others. By staying silent in a system where it is possible for anyone to say anything and influence anyone, it is very possible to be complicit in oppressing minorities who are trampled by the comfortable, lukewarm majority who feel no need to protest.
Supreme Court cases are integral for the interpretation of the First Amendment and the more specific rights of free speech that would not fit into the written Constitution, such as symbolic speech or the protection of hate speech. According to Schenck v. United States, freedom of speech does not justify inciting actions that would harm others, such as “shouting “fire” in a crowded theater” (“What Does Free…”). In the case Brandenburg v. Ohio, the Court determined that the government can only limit speech that would encourage “imminent lawless action” (Waimberg). In the case Wisconsin v. Mitchell, Mitchell and a group of other African-American youth were outside a theater after watching Mississippi Burning and yelled, “There goes a white boy; go get him!” They proceeded to attack the white youth, and they were charged with a hate crime; the law they were prosecuted under was upheld, therefore determining that laws combating hate crimes are in fact constitutional. In R.A.V. v. City of St. Paul, a 14-year-old boy burned a cross on the lawn of the only black family in a neighborhood, and they prosecuted him under a Minnesota law that made it illegal to do so. The Supreme Court ruled that this law was unconstitutional (“Debating Hate Speech”). In Rosenberg v. Board of Education of the City of New York, it was decided that the books Oliver Twist and Merchant of Venice could not be banned from classrooms because “they tend to engender hatred of the Jew as a person and as a race” (“Notable First Amendment…”).
The majority opinion for Schenck v. United States states, “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” This explains the constitutional basis for this limit on free speech; Congress has the right to keep citizens safe from harm; therefore, if one’s speech will directly cause crime to happen, Congress has the right to regulate that speech, as it is directly harmful (Waimberg). This decision protects Christopher Cantwell’s graphic use of his free speech rights because Cantwell’s words did not create a clear and present danger for Heather Heyer’s murder, and Rosenberg v. Board of Education of the City of New York protects his use of blatantly racist speech against minorities. In Wisconsin v. Mitchell, the Wisconsin law increased penalty if the offender intentionally selected their victim based on “race, religion, color, disability, sexual orientation, and national origin or ancestry.” It was determined that this law is constitutional because the penalty is increased because of the particular victim, not the thoughts or beliefs of the offender. The constitutional basis for the decision in R.A.V. v. City of St. Paul was that the law the offender was prosecuted under attempted to punish his beliefs rather than his actions. Therefore, his actions (burning a cross on a black family’s lawn) were illegal, but due to being charged under the wrong law, he was not convicted. He could have easily been charged with threatening the family or destroying private property, but the law focused on his ideology rather than his actions (“Debating Hate Speech”). Both of these cases show the dissection between the prosecution of hate crimes and the prosecution of hate speech; when punishing one’s actions, it is possible to be completely free of bias because the person either committed the crime or they did not. With prosecution of hate speech, what is considered “hateful” or “offensive” may vary from person to person, resulting in more miscarriages of justice than proponents of censorship laws may realize.
In other modern democracies, censorship laws do exist; on paper, these laws seem as if they will simply even the playing field for minorities and protect them from the harmful effects of hate speech. The governments of these countries, however, have other uses for these laws. The European Court of Human Rights affirms convictions even if they violate the offender’s free speech. In 2009, a member of the Belgian Parliament was convicted for passing out leaflets that supported anti-integration thought. The International Covenant on Civil and Political Rights requires signing nations to pass hate speech punishment laws. Canada, Britain, Denmark, Germany, and New Zealand all have these hate speech laws. Currently, Canada’s hate speech laws are so oppressive that measures are being taken to repeal them. In Poland, a Catholic magazine was fined $11,000 for comparing a woman’s abortion to experiments at Auschwitz (McConnell). In Singapore, hate speech laws punish human rights activists who are against Christianity and Muslims who agree with and defend sermons of imams that criticize other religions. In Turkey, “hate speech” laws are bent in order to punish those who criticize government officials or the military. In the UK, hate speech laws have been used against those who oppose war and criticize soldiers (“In Europe, Hate…”).
As is made abundantly clear by these examples of censorship in countries with “hate speech laws,” laws that regulate speech are manipulated by the government far too easily, no matter what side of the political spectrum the speech may fall under. Proponents of these laws in the United States are often also opponents of the Trump administration; what is ironic is that if these laws were passed through the currently Republican Congress, the power to censor beliefs would rest in the hands of those who the leftists claim are evil. Donald Trump and Jeff Sessions could directly affect what American citizens could say and not say, and democracy would die a painful death. These laws would have the exact opposite effect of what is desired from them. Any opinions deemed upsetting in the UK can be punished, giving power to the police and government to police people’s opinions. The definition of hate speech is too easily manipulated and is decided by the majority if this legislation is realized, oppressing minority viewpoints that may actually be reasonable (“In Europe, Hate…”). Almost never would speech harmful to the minority but beneficial to the majority be prosecuted under these laws (McConnell). James Madison wrote certain parts of the United States Constitution with the intent to prevent this tyranny of the majority, and for Americans to turn their backs on it now could be the Jenga block to take the rest of the United States government tumbling down with it.