Traynor: Fixing Free Speech

by Zach Traynor | 11/17/14 5:39pm

Free speech is often cited as a cornerstone of American democracy. Individuals or a group have the right to express themselves and say whatever they want with fairly few restrictions. As long as the speech does not imminently incite violence, constitute slander or libel, or have excessively objectionable content, the speech is allowed. This protects crucial kinds of free expression, like criticisms of the government or U.S. policy, the publication of potentially risqué or provocative works and the ability to mock others for comedic effect. It allows for dissenting but respectful viewpoints critical to our system of democracy: people can be heard even if they have an unpopular opinion, and they have the opportunity to convince people of the virtue of their point of view. That said, this country has gone too far in allowing people to say whatever they want, and should curtail speech that is obviously harmful to society, such as hate speech.

Those in support of aggressive civil liberties will protest: What is stopping the government from moving past sensible restrictions on free speech, once they are in place, to something more Orwellian, as in China or other authoritarian regimes? At face value, this is a fair question, but given America’s deeply-held cultural norms and the power of the Internet and social media, such a scenario is highly unlikely. We need only small but significant change to the freedom of speech in this country: namely, the prohibition of unambiguously destructive, hateful speech.

This kind of speech, despite being clearly distasteful, has long been upheld as legal in America because of the First Amendment. In the 1992 case R.A.V. v. City of St. Paul, the Supreme Court said a teenager burning a cross in an African-American family’s yard — an homage to the Ku Klux Klan — was constitutional. Despite the Supreme Court’s statement that this is “reprehensible,” and the clear violation of basic human decency cross-burning entails, the Court upheld this speech as permissable under the Constitution. The Westboro Baptist Church, known worldwide as a hate group which commonly uses racial and homophobic slurs, as well as protesting at funerals “thanking God” for the death of the individual, has their hatred constitutionally protected. The abhorrent “rape guide” from this past winter, posted on Bored at Baker? The individual responsible immediately left the College, but otherwise seemingly faced no legal penalties. If someone were to sit on South Main Street catcalling women, that individual’s “right” to do so is legally protected, as it does not incite immediate violence despite being objectively distressing. Free speech, as outlined in the First Amendment and clarified throughout numerous Supreme Court cases, regrettably allows all of these things.

This situation is patently absurd. This country is supposedly built on freedom and equality, not on the right to say whatever you want without significant consequences. Our country should not legally sanction hate speech, through which those in positions of social power can disparage others without legal repercussions. Many other countries limit this kind of speech, particularly speech that could cause undue harm (physical or emotional) to a targeted group of people. South Africa outlaws “advocacy of hatred that is based on race, ethnicity, gender or religion” and war propaganda. Many European countries, as well as Australia and New Zealand, have similar laws regarding racist speech. Canada’s Charter of Rights and Freedoms states that restrictions on free speech are permissible “as can be demonstrably justified in a free and democratic society,” allowing for greater flexibility and adaptabilty in a rapidly changing society. Perhaps the most well-known example of sensible restrictions on free speech is that it is illegal in Germany to publish material denying the Holocaust, and German hate speech law takes a hard line against anti-Semitism. How does America benefit from allowing speech that many other developed and democratic countries have wisely deemed to be against their modern values? A line can be drawn and hate speech can be defined through the democratic process. Many other developed and democratic nations have passed laws and instituted legal mechanisms that are quite simple in nature. America should do the same: hate speech is not acceptable and should not be legally protected.