Monday, February 9, 2015

The Slippery Slope of "Hate Speech"

Edward Schumacher-Matos, NPR's former ombudsman, offers the following thoughts about freedom of expression in his valedictory post:
The French news media may have their ethical standards, but they are not American or sacred universal ones, and they shouldn't be French ones either. The United States has never had absolute freedom of the press. And the framers of the Constitution—I once held the James Madison Visiting Professor Chair on First Amendment Issues at Columbia University—never intended it to. You wouldn't know this, however, from listening to the First Amendment fundamentalists piping up from Washington to Silicon Valley.
In this case, the competing social and constitutional demand is the control of hate speech in the interests of social cohesion, without which the very idea of a nation is impossible. Look at the sectarian bloodbath that is the Middle East. Or look at the tensions in China, Myanmar, Ukraine, Nigeria, the Balkans, and elsewhere. Nothing guarantees that different peoples can live together, or that nations will remain as we know them.
The United States is the ultimate multi-ethnic, multi-sectarian society. It has sinned mightily against slaves and immigrants, but has managed to hold itself together through imposition by a civil war, an evolving sense of morality, and yes, political correctness in how we treat each other. Laws followed along.
I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would. It is one thing to lampoon popes, imams, rabbis and other temporal religious leaders of this world; it is quite another to make fun, in often nasty ways, of their prophets and gods. The NPR editors were right not to reprint any of the images.
Leaving aside the question of America's "sins" against immigrants (and whether those "sins" are in any way equivalent to the wrongs done to slaves and their descendants), let us consider Schumacher-Matos's riposte to what he terms "First Amendment fundamentalists."  These remarks are worth considering not only because of Schumacher-Matos's professional stature but also due to the fact that they are representative of a broader worldview.

As a matter historical fact, the U.S. has not always had absolute freedom of the press.  Governments at all levels---federal, state, and local---have taken acts that have suppressed speech.  However, there is a big leap from that historical fact to the theoretical principle that "hate speech" is not and should not be protected by the First Amendment.

Schumacher-Matos seems to operate from the presumption that a government prohibition of certain kinds of inflammatory speech will act as a force for social cohesion, but one could rather claim that free expression and the free exchange of ideas can actually lead to a more tolerant and socially coherent society.  The U.S. has never had a ban on hate speech, yet, over centuries, an increasingly diverse range of individuals have indeed been assimilated into the whole of the American republic.  Free expression---even of ugly sentiments regarding race, religion, and so forth---was also compatible with an integrating society.

In fact, arbitrary government classifications of "hate speech" could inflame rather than soothe social tensions.  It's much easier to feel oppressed and wronged by another group when that group uses the power of government to suppress your expression.  And that brings us to a key challenge to any idea of banning "hate speech": there is no clear limiting principle.  Free-speech law in the U.S. is complicated enough.  Holding to a "hate-speech" exception to free speech would make free-speech law impossibly complicated---so complicated that any exercise of government power to ban "hate speech" would likely seem quite arbitrary.

Schumacher-Matos seems to take for granted that, of course, the cartoons of Charlie Hebdo are "hate speech" unprotected by the Constitution because they "make fun, in often nasty ways, of [various religions'] prophets and gods."  But, if that is so, surely many other works must also be banned: South Park, nearly all of Christopher Hitchens, many George Carlin and Bill Maher jokes, James Joyce's novel Ulysses, much of Nietzsche, numerous tracts by Voltaire, and so on.  To seek to use the law to ban anything that critiques certain sacred figures is to suppress a vast range of works.

Certain critiques of religious figures may indeed be misguided.  Offensiveness for its own sake can often be juvenile, self-indulgent, and tiresome.  Moreover, there is much to be said for courtesy as a civil virtue, as Schumacher-Matos implies.  But none of those considerations nullify the importance of a legal right to free expression.  "Hate speech" may often be ugly, but efforts to ban it can lead to results that are even uglier.

(See Charles C. W. Cooke for more about the dangers of opposition to the right of free speech.)

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