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Freedom of Expression: Hate speech

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I have long been a fan of Christian science fiction author Ray Bradbury, having read a number of his books and stories decades ago in high school. If you have any interest in the concept of freedom of expression, his classic 1953 novel Fahrenheit 451 is a must-read (the movie does not adequately capture the key issues). It portrays a dystopian future in which books are outlawed, and the penalty for owning a book is having all your property burned and your life forfeited. What is interesting, though, is the argument mentioned in the book which explains why books are illegal: nearly everything that is worth writing offends someone.

Examples are easy to find. Most westerns are offensive to Native Americans for their poor portrayals of that culture. Italian Americans object to gangster stories for the suggestion that they are all criminals. Ensign Pavel Chekov, with his Russian caricature identity and intentional Davey Jones wig (of The Monkees, to attract a younger audience), probably did nothing to assuage Soviet complaints that an American television show portrayed the future in space as entirely crewed by Americans. Fiction is almost necessarily laced with two-dimensional characters, because you cannot give full portrayals of every waiter, taxi driver, police officer, hotel maid, and the myriad of other characters who create the background of the story, and some of these will suggest stereotypes, and stereotypes are always offensive because no culture, no people, is monolithic. Not all corporate executives are mysogynists; not all plumbers are wardrobe-challenged; not all homosexuals are effeminate or artistic; not all blondes are ditzy. Yet we create such stereotypes for our entertainment, and even when they are not intended to be humorous or offensive they might be to those who are particularly sensitive. Yet if we ban all speech that might offend anyone, we find ourselves in a world in which no one is permitted to speak.

That brings us to the problem of the modern crime known as "hate speech". It is actually a multi-layered problem, in part because it has one meaning in the vernacular and a different meaning in law, and in part because thanks to the Internet we have international speech that was never intended to be more than conversations with local friends in a world in which the concept of what speech is unlawful varies from country to country. For example, several countries make it criminal speech to deny that the Nazi Holocaust is a real historic event, and in some of them it does not matter whether the person is a citizen of or makes the statement within the country as long as the statement reaches citizens within the country.

Within the United States, speech has long been protected. We can divide what is popularly called "hate speech" into two categories:

  1. Speech that advocates or encourages violent acts or crimes of hate.
  2. Speech that creates a climate of hate or prejudice, which may in turn foster the commission of hate crimes.

Only the first is illegal in the United States; the second is deemed protected. As recently as 1992 the burning of a cross on the yard of a black family was held by the Supreme Court to be protected speech (it might be a criminal act, e.g., trespass, arson, disorderly conduct, but could not be criminalized for what it said): we are permitted to say that we believe others to be inferior. It is lawful to express racism, sexism, religious prejudice, and extremist anti-American political opinion, as long as within that expression there is no direct solicitation or encouragement toward criminal or violent actions. It may be unwise to do so, but it cannot be made illegal under the First Amendment.

Yet there is significant pressure to change that, to make it not only socially unacceptable but actually criminal to express opinions that are contrary to those of the ruling party or the ascendant intelligentsia. Should it be illegal to use divisive language, dehumanizing metaphors, flawed arguments, or false information that creates a climate of hate or prejudice? The National Telecommunications and Information Administration thinks it ought to be. In the minds of some, the fact that less than a century ago abortion was a form of felonious assault and sodomy a form of statutory rape does not justify anyone holding such opinions today. We should all embrace the enlightened opinions of the reigning progressive movement.

However, language which "creates a climate of hate or prejudice" is vague and general enough that it brings Bradbury's vision into focus. As Justice Holmes reminded us, we must protect

the expression of opinions that we loathe and believe to be fraught with death,

or in the words of Evelyn Beatrice Hall,

I disapprove of what you say, but I will defend to the death your right to say it.

It is incumbent upon us to allow each other to hold and express opinions with which we disagree, and to treat them with respect. To do otherwise is to abandon our own right to believe what the ruling party disapproves.

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