Free Speech, Hate Speech Discussion

The following is from a webchat on 14 Feb 2006. The entire transcript can be found at here.

Michael Curtis: Welcome. I am Michael Curtis and I am pleased to be sharing this conversation with you today. I teach constitutional law, free speech, and legal and constitutional history at Wake Forest University School of Law, and I have written extensively about free speech history. So I have considered "hate speech" as it fits in with these topics, but I am not a "hate speech" specialist or an expert on the laws of other nations-e.g., Canada, Germany, or Denmark. I welcome comments from participants who for example, know more about the laws of other countries. I put "hate speech" in quotes because exactly what is meant by the phrase it not always clear.

To begin, I want to say a few words about free speech in the United States. We have fairly broad protection from government action punishing speech (which I use to include press and petition) in the public domain. There is a very broad right to criticize our political leaders for instance, with the exception that speech that is intentionally or recklessly false can be sanctioned. We have broad freedom to criticize religious leaders. Books that criticize the idea that "the Bible is all the word of God and is literally true" can be and are sold-for example The Age of Reason by the American Revolutionary patriot Thomas Paine. We can and do criticize major religious leaders-some of whom increasingly are also deeply involved in partisan politics. Our current Supreme Court precedent suggests that even statements that might lead to crime or revolution or be construed as advocating it are protected from government action unless they are directed to inciting or producing imminent lawless action and plainly likely to produce such action.

In our history, our commitment to free speech has not always been so strong, and there are reasons to fear that we will be less protective in our current crisis. We are less generous as to places where people can speak, though at the moment the internet still provides a robust public forum. That may change as our government changes the rules for the pipes that carry the messages-dsl phone lines for example-and turns the power to control them over to private companies which are not bound by free speech rules.

Our constitutional law allows the government to protect people from direct threats and intimidation. Under current interpretations of our Constitution I do not think the government could suppress criticisms or hate speech that referred to large groups-whether based on race, gender, economic class, or whatever-in newspapers, speeches in public parks, etc. The rule is different at public schools, at work, etc.-and certainly so where the speech is focused on a particular person or student. The Ku Klux Klan (historically a group devoted to racism and bigotry against all sorts of people) could meet in a public park, burn a cross (a Klan symbol) and express its racist or other ideas. The government could however punish burning a cross on someone else's property as a threat or intimidation.

But the broad protection of free speech works both ways. Precedents protecting Klan speech also protect speech by the NAACP and anti-war speech.

That does not mean that racist speech or other hate speech is free of consequences. People can and do express strong condemnation of racist speech, for example, and strong public disapproval makes people less likely to utter it. There is a wide difference between what you have a right to say and what it is right to say. So it is a mistake to think of the lack of prosecution as approval. The hope is that dialogue and understanding will do more to promote tolerance than suppression. Other democratic countries have taken a different approach and outlaw speech that can be labeled "hate speech."

Do please note that, in the United States, incitement to cause imminent harm, threatening to cause harm, and/or intimidation are the basic tests for hate speech, as Professor Curtis describes above. Therefore, to call mere criticism "hate speech" has no legal basis in the United States. Perhaps our non-American (I believe) member #19236 could be forgiven for not knowing any better, but the truth is that all #19236 was trying to do was to intimidate me (with legal threats) -- again, hypocrisy.

At no point have I called for harm to Christians. In fact, my attacks on Christians have largely been derived from Christians' willingness to harm others (please refer to basically the entire history of Christendom) or incite or encourage others (i.e. Israel) to harm others (i.e. Lebanon, Palestine). The point I'm trying to make is "STOP VIOLATING OTHER PEOPLE'S RIGHTS", which includes "STOP HARMING OTHERS". To accuse me of hate speech is, therefore, ridiculous, but I'll treat this accusation without ridicule this time. Should it come up again, I will revert to using ridicule. *wink*

A quote from a Christian in The God Who Wasn't There: "I agree with capital punishment. I believe that homosexuality is one of those that could be coupled with murder and other sins. It would be the government who would be executing the homosexuals."

It won't stop with gays, though. Not if Christians have their way.