Considering that the 1st Amendment of the
Constitution guarantees freedom of speech, can and should government regulate
hate speech, or seek to address the harm it causes?
Based on a premise that there is no such a thing as absolute right or absolute
freedom, we can infer that a government can and should regulate any speech and
seek to address the harm it causes; but the real issue is -- where, when, and
how can it be regulated?
There are two approaches to the issue at hand: the legalistic approach (from the
view point of a bureaucrat); and the common sense approach (from the view point
of a commoner).
Following the legalistic approach, it would be useful to start our consideration
from the year of 1777, when the Continental Congress adopted the Articles of
Confederation, under which, the States retained their sovereignty, freedom and
independence, while the federal government was kept weak and dependent. When it
became obvious that such system of government was not adequate to the challenges
that the people ran into (in regulating trade, currency, commerce, foreign
politics, and the frontiers), then, in 1787, delegates from twelve states (Rhode
Island was not represented) convened and proposed the idea of a stronger federal
government that would exercise many powers previously held by the States.
The new constitution faced rigorous opposition because some delegates feared
that the liberties (they had fought for with the British Crown) were not
protected by the federal constitution and could be disregarded by the new
federal government. Opponents of the new constitution called for another
convention to draft a Bill of Rights. By 1788, eleven states had ratified the
Constitution; however, six of them attached to it their proposals for
amendments, designed to protect States and individual rights.
After arduous debate Congress voted to add twelve amendments to the constitution
and sent them to the States for ratification. Two of them that failed, were
concerning salary increases for congressmen and their apportionment; the latter
matter was considered as too much intrusive in the rights of the States.
Madison's original draft contained a proposal that prohibited state governments
from violating the rights of the individual, but it was annulled by the Senate,
and it would require the following Civil War and the 14th Amendment that
individuals would be protected by the federal constitution against the state
bureaucracy ("No State shall... deprive any person of life, liberty, or
property, without due process of law.")
The Amendments of the Constitution (and particularly the due process clause of
the 14th Amendment) were incorporated as to protect individuals from the
bureaucrats and to protect the "lesser" state bureaucrats from the "bigger"
federal bureaucrats. The Supreme Court has interpreted the Amendments as a
guarantee that the state bureaucrats must observe and protect the individual
rights, recounted in the federal constitution; however, the scope of their
incorporation is still debatable (the 2nd, 5th, 6th, and 7th Amendments are
still not incorporated in some States). However, the majority of the States
incorporated all individual liberties enumerated in the federal constitution.
So, we can infer that the 1st Amendment, which guarantees "freedom of speech,"
is incorporated by all fifty states and may not be infringed by the "lesser"
state, county, and district bureaucrats either. Therefore, to solve the problem
at hand, it would be enough if we consider only the decisions on the subject
made by the United States Supreme Court and leave behind those decisions of the
lower level courts.
Trying to balance both, freedom of speech and the fear of an inflammatory
speech, the Supreme Court has produced probably the most famous legalistic test
-- "clear and present danger." The underlying idea is that bureaucrats cannot
punish a speaker unless he/she creates a "clear and present danger" to others.
Theoretically, this standard appears to be supportive of the right to speak
freely. However, in practice, it is difficult to determine when the danger was
"clear" enough for an "average" citizen (commoner), how remote it could be and
yet still be considered "present," and how precisely hazardous the "danger"
should be to justify suppression of a speech.
By definition, the bureaucrats (representatives of the people) cannot be the
"average" citizens -- the representatives are the "best" citizens. Therefore,
each such a case should decide a jury of "average" citizens, but it would be
very costly endeavor. However, the most damaging contra-argument against
prohibition of free speech is -- "Are you God to predict what the outcome will
be? For most of speeches are spontaneous, therefore, they should not be
prevented, but if their outcome would be grave and costly, then you can step in
and organize persecution of the violators of others' rights and property."
It is "clear" that free speech is the ideological base for all other freedoms in
American public life; therefore, the free speech decisions of the Court often
reflect larger social changes that Congress could not manage and left over to
the Supreme Court. Thus, in 1951, in the pick of the Cold War, in Dennis vs.
U.S., the Court managed to distinguish advocacy of "organized violent
action" from advocacy of "belief" (the former could be within the government's
prohibitive power and the latter could not). Here the Court upheld the
convictions of the Communist party leaders for participating in an advocacy to
overthrow the government.
Six years later, in 1957, in Yates vs. U.S., the Court reversed the
convictions of fourteen second-tier party leaders, finding their teaching to be
more like advocacy of belief. Although they still advocated the overthrow of the
U.S. government, by that time, the danger (for the federal bureaucrats) became
not so "clear and present;" therefore, they could relax and the commoners could
get back their beloved and temporarily suppressed freedom of speech.
In 1969, in Brandenburg vs. Ohio, the Court again reformulated the "clear
and present danger" standard. By this time, the baby-boomers spread their left
wing and the federal bureaucrats were prepared to balance freedom of speech with
their right wing. The Court held that government can restrict speech when the
speaker advocates the use of violence and incites the listeners toward imminent
and likely lawless action.
In addition to speech, the 1st Amendment protects writing, demonstrating,
parading, leafleting, and certain forms of symbolic expression. Confronted with
cases where local governments have tried to restrict or accommodate these
various kinds of vocal and body speech, the Court has developed the principle
that government can place reasonable regulations on when, where, and how
speakers may express themselves. Thus, the freedom of speech becomes a subject
to "reasonable time, manner, and place" regulations, as long as these
regulations are "content-neutral."
Translating this legalistic jargon in plain English, the bureaucrats cannot
restrict the content of what the speaker has to say, but it is their prerogative
to reason what "reasonable" time, manner, and place are. And we know how they
usually define what "reasonable" is (for them, of course). Therefore, a local
bureaucrats may require a parade permit or limit the ability to demonstrate in
certain places (to protect public safety), but the restrictions must apply
evenhandedly to all speakers, regardless of the message they wish to convey.
The context, in which the speech is delivered, may affect the application of
these principles. Speech is most protected in streets, parks, and public places,
which have "immemorially been held in trust for the use of the public and...have
been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions" (Hague vs. CIO, 1939). These places are
called public forums, which, once established, cannot be eliminated by the
government in order to silence speech.
Thus, when a small village in Illinois (most of inhabitants of which were Jews)
refused to issue a permit to Nazis to parade in front of the village hall, a
federal court held that the town officials had violated the Nazis' right to free
speech; their refusal was not motivated by a fear of imminent, likely violence,
but was content-based discrimination. The Justices wrote, "any shock effect must
be attributed to the content of the ideas expressed. Public expression of ideas
may not be prohibited merely because the ideas are themselves offensive to some
of their hearers" (Street vs. New York, 1969).
Long before that, Justice Holmes noted that, "when men have realized that time
has upset many fighting faiths, they may come to believe even more than they
believe the very foundations of their own conduct that the ultimate good desired
is better reached by free trade in ideas -- than the best test of truth is the
power of the thought to get itself accepted in the competition of the market,
and that truth is the only ground upon which their wishes safely can be carried
out" (Abrams vs. U.S., 1919).
This idea about the "marketplace of ideas" appears to be the most clever and
proper response to offensive and inflammatory speech; this idea buttresses the
theory that the so-called "hate" speech should not be prohibited, but, instead,
should be confronted with counter-speech. I believe that the power of the 1st
Amendment depends on a shared idealism and respect for the principle of free
speech itself, even if we do not share other ideas.
I myself hate some of the things the communists have actually done. But I do not
hate their ideas, I do not hate a representative of those ideas unless he/she
actually does what he/she thinks and says. Until this boundary line of
actualization, I can learn something useful even from the meanest of them. And
even though, I do not agree with them, it does not mean that they should not be
heard by others, or I should not listen them. Now I understand that listening to
offensive speech is the price we ought to pay for our own liberties.
Free speech means free speech for popular ideas as well as for unpopular ones.
And when we cannot make "clear" distinctions between "hateful" and "non-hateful"
speech, but, nevertheless, are trying to suppress it, we have no right to call
ourselves a free society.
There is no such a thing as absolute freedom, nevertheless, the freedom of
speech should approach absolute as close as is humanly possible. Although the
freedom of speech can be and should be regulated by the local governments, the
regulations themselves should only be by form (by the "reasonable" to a commoner
time, manner, and place), not by content of the message. Only then that Jewish
majority could no longer suppress the expression of the will of that Aryan
minority; however, the majority can argue about time, manner, and place of the
minority's expression. Only thus the majority rule can survive and be balanced
by the minority rights.
12/08/99
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REFERENCES: Abrams v. U.S., 250 U.S. 616 (1919); Brandenburg v. Ohio, 395 U.S.
444 (1969); Dennis v. U.S., 341 U.S. 494 (1951); Hague v. CIO, 307 U.S. 496
(1939); Street v. New York, 394 U.S. 576 (1969); Yates v. U.S., 354 U.S. 298
(1957).
Victor J. Serge created this page and revised it on 04/13/03