Free Speech vs. Hate Speech
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”
-From the First Amendment to the U. S. Constitution
Last week, Terry Jones cancelled his plans to burn the Quran. I’ve seen him praised for this decision, and I’ve seen him mocked for being too much of a coward to stand by his convictions. My opinion is unchanged. The man is an attention-hungry idiot.
As hateful and stupid as his plan was, he had the right to do it. The First Amendment protects freedom of speech, and as a result of several flag-burning cases around 1990, the Supreme Court considers freedom of expression to be included in that right.
Even expressions of hate.
But free speech has limits. Libel/slander, for example. Or try shouting “Bomb!” in an airport, or advocating the assassination of the President.
I have no question that Jones’ plan to burn the Quran, and the resulting circus of publicity, would have incited violence. But does that trump his right to freedom of expression? In Brandenburg v. Ohio, the Supreme Court ruled:
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
I’m not a lawyer, but I believe the law is on Jones’ side. As far as I know, he wasn’t advocating force or law violation, or inciting his followers to commit imminent lawless actions.
What about the laws regarding hate speech/crimes? Jones’ actions are certainly hateful. But in the U.S., I’ve found few legal restrictions on hate speech. Hate crime laws add penalties to violent crimes targeted against victims based on race, religion, sexual orientation, perceived gender, disability, and other protected classes, but book burning, while abhorrent, is not considered a violent crime.
From everything I’ve read, I believe Jones has the legal right to hold a Quran burning. Ethically … I struggle with whether or not hate speech should be protected under the First Amendment.
Ultimately, I believe it should be.
I don’t like defending his right to spread hate and lies. And as a straight white male, I’m sheltered from much of the impact of hate speech, and I cringe to defend that speech while knowing many of my friends and loved ones don’t share my privileged protection … knowing I’m defending the rights of people who would belittle and attack them.
I feel dirty defending him. I question why he should have that right. I look at issues like gay marriage, where hate and lies continue to restrict the freedom of people I care about. But I don’t trust myself to decide what people can and cannot say. I don’t feel right criminalizing hate and ignorance. Nor do I trust my government to do so.
It’s easy to defend the rights of those we agree with. I’ll happily mock and argue with Jones and his ilk, and I’m thrilled at the public outpouring against him. But I don’t think we should take away his right to express himself, no matter how distasteful that expression.
Discussion very much welcome. As I said, I have struggled and continue to struggle with this one.
September 15, 2010 @ 10:24 am
A very good post again, Jim.
As someone from England, I think my view differs slightly. I’m not saying the USA is an immature nation, but I think as a government and as a nation, you’ve still got a lot to go through. The mixture of backgrounds, religions, races, creeds, sexual orientations and otherwise is probably greater than most of the world and it’s going to cause conflict. If I waltzed into a highly religious area of the US and began to preach against God, I would find myself in hospital or a grave very quickly. If you did that over here, people would just sigh at you or tell you to go away/shut up. That’s the sort of difference I think there is between our two worlds 😉
I think there’s a difference between free speech and hate. Free speech, to me, is one backed up with facts, evidence, rational logic and common sense. Hate is exactly that, and is fueled by ignorance and hearsay. By saying he would burn the Qur’an, the man in question is threatening to carry out an act of hatred. The Muslim community itself has done nothing to this man. He has no reason to hate them except that he’s ignorant. If an American Muslim threatened to burn a Bible at the same time, he would likely be locked up as we speak for inciting hatred. How is the situation any different? It’s not!
September 15, 2010 @ 10:31 am
I agree with you, the man is distasteful and attention-seeking, and he’s also a coward for backing down. I do believe that he was well within his rights to burn those books, but I don’t think it would have been a great idea.
As to whether Americans should defend his actions and speech, I give you an excerpt from an excellent blog post by Neil Gaiman:
“If you accept — and I do — that freedom of speech is important, then you are going to have to defend the indefensible. That means you are going to be defending the right of people to read, or to write, or to say, what you don’t say or like or want said.”
Neil was defending art, but the principles are mostly the same.
Full post here: http://journal.neilgaiman.com/2008/12/why-defend-freedom-of-icky-speech.html
Jim C. Hines
September 15, 2010 @ 10:32 am
I know the U.S. has a different approach than most countries when it comes to free speech. (Charlie Stross described it as a free speech fetish on my LJ.) And I certainly agree that there are areas where we seem to lag behind the rest of the world. (Don’t get me started on health care.)
On the other hand, I don’t know that allowing the government to suppress people’s speech/expression is a good thing. Look at how easily this can be abused.
“If an American Muslim threatened to burn a Bible at the same time, he would likely be locked up as we speak for inciting hatred.”
I’d challenge you to find even one example in the past ten years where anyone was arrested in the U.S. for burning a Bible.
Jim C. Hines
September 15, 2010 @ 10:34 am
Heh. You’re the second one to reference that blog post by Gaiman. (The other was over on LJ.)
September 15, 2010 @ 10:47 am
I think he makes a lot of good points in it. He also has a different perspective as someone who was moved by the power of the right to free speech, coming from a country where that right wasn’t much of a right.
September 15, 2010 @ 11:01 am
It was more of a guess/assumption than anything, Jim. I think it’s just the same situation as your previous post on this topic, i.e. it’s double standards. This guy gets written off as a crackpot whereas if it was someone of a minority doing it then it would be much more “serious”.
I don’t think a government should suppress people’s speech in a Nineteen Eighty-Four manner, but I do think that it’s the responsibility of society to police itself. The way the media portrays events, for example, often contributes to how people view that event and others. The optimal situation would be an “Everyone or no one” rule of society, i.e. everyone is allowed to do something or no one is. Is it possible to have truly free speech if some can say things others can’t? I don’t think it is.
September 15, 2010 @ 11:10 am
“As far as I know, he wasn’t advocating force or law violation, or inciting his followers to commit imminent lawless actions.”
To me, that’s the difference between unethical/immoral (which I think his plan absolutely was), and illegal (which as you pointed out does not seem to be the case). Even if I think someone is saying abhorrent things, and I think that they are unethical or immoral for doing so, I absolutely do not want laws to be made on those grounds; I like my own etchics and morals but would not like someone else’s ethics or morals mandated for me.
Where I think it crosses the line is when the speech is urging listeners/followers to take violent or illegal action, either explicitly or implicitly. (Mind you, I think that puts a lot of Fox News commentators over the line in my interpretation, so I think I’m a bit more hard line than actually gets implemented.)
Jim C. Hines
September 15, 2010 @ 11:12 am
It’s definitely good to get the perspective from people outside of the U.S., who didn’t grow up immersed in some of the ideas we take for granted.
Jim C. Hines
September 15, 2010 @ 11:14 am
I think (again, I’m NOT a lawyer) the law tends to agree with you, though my reading is even more strict that it has to be fairly explicit, and urging immediate illegal activity. See the Brandenburg v. Ohio link I referenced above.
And yeah. I believe and would defend Jones’ right to express himself, but I also believe what he’s expressing is ethically and morally repulsive.
S Andrew Swann
September 15, 2010 @ 11:57 am
I might posit an analogy to help with “why he should have that right.”
I’m a Libertarian and I’m against the death penalty. The reason why has nothing to do with the moral implications of the death penalty. I think, in the sense of right and wrong, if someone goes and kills half a dozen people there’s nothing wrong with killing him back, deadly force at the scene is probably justified. But once you involve the mechanics of the legal system into it you must accept the imperfection of human governmental bureaucracy. That means if we permit a death penalty in a legal system that’s 99% accurate, one out of every hundred people we send to the chair is going to be innocent. And the actual rate of accurate convictions is probably substantially less.
And when we deal with punishments short of death, the legal system tends to become more lax. Thus if we start constraining the rights of a douche like this guy, we inevitably start constraining the rights of people who aren’t much of a douche at all. After all, how far is it from this twit to the attempted provocation of “Draw Mohammad Day?” and from there to the original publication of the Mohammad cartoons, and from there to the SATANIC VERSES or THE JEWEL OF MEDINA? In some sense these are all provocative, and potentially violently so. They certainly are not all morally equivalent, but one we give the law the authority to draw a line, do we trust where they are going to draw it?
September 15, 2010 @ 12:19 pm
But what if hate speech does do actual harm?
There’s a good argument to be made (with growing research support) that hate speech is more harmful to an individual than a punch in the face, and more harmful to wider society than a burned-down building.
What implication does that carry for your argument?
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Jim C. Hines
September 15, 2010 @ 1:08 pm
If you feel there’s an argument to be made, you’re welcome to try to make it.
If you believe there’s research to back you up, I would suggest citing that research.
At the moment, it carries no implications for my own argument, because you’ve simply made vague assertions with no backing whatsoever.
Jim C. Hines
September 15, 2010 @ 1:10 pm
Makes sense to me. And that tends to align with a lot of my own thinking on the matter. Thanks!
Jim C. Hines
September 15, 2010 @ 1:13 pm
I definitely agree that there are some ugly double-standards out there. Just look at who gets labeled a terrorist in the news, and who doesn’t. White Christian guy blows up an abortion clinic vs. dark-skinned Muslim who does the same thing?
Legally speaking, though, Jones has just as much right to burn the Quran as that Muslim does to burn the Bible. People will be pissed off at both. Some extremists might (and have) react violently to both. But I also believe the law protects both.
September 15, 2010 @ 1:23 pm
Largely I agree with you, but I think there may be a bit of nuance here, and that’s to what degree are the actions/speech being undertaken by Mr. Jones (who deserves no honorifics) inciting or encouraging violence or law-breaking, either explicitly or implicitly, and is there intent to do so, whether concealed or open. In this particular case, I think the argument can be made that there was such intent. Howbeit, however, that it would be rather a tricky and difficult thing to prove in a court of law.
That said, I believe S Andrew Swann is pretty much correct on the issue… Although the question of intent varies pretty widely, the issue of provability is important here, and the legislative process is pretty bad at making that level of distinction. Which ultimately boils down to: in order to protect speech that is good, you sometimes have to protect speech that is bad.
September 15, 2010 @ 3:09 pm
I think protecting hate speech is important, for much of the same reasons that you comment on. I think freedom of speech is one of the most important things we have, and protecting that type of speech is just part of it. People can bitch all they want, but I don’t want government or anyone else deciding what is “hate” and what is not. I don’t want someone drawing the line because it becomes so easy to just… bump it a little over time based on social manipulations.
As for the Koran.. I honestly feel he is a hate-mongering attention whore, simply because he made such a big deal before doing it. It could be he didn’t have the courage, but it really came out as a publicity stunt. And paying attention to people like that just encourages them.
Jim C. Hines
September 15, 2010 @ 7:02 pm
Intent gets messy fast. If an investigation found that this was a deliberate and conscious attempt to incite violence — say, e-mails from Jones talking about how he hoped to see bombs or bloodshed or whatever — then I might feel a little differently. Though I still don’t think (I’m not sure) there would be much that could be done against him, legally speaking.
Jim C. Hines
September 15, 2010 @ 7:03 pm
If you compare the record of government protecting minority rights vs. the record of protecting the majority and those in power … yeah, I’d be very uncomfortable allowing my government to decide what is and isn’t hate speech, and who deserves protection.
September 16, 2010 @ 10:08 am
Much like pornography, the extremes of hate are easy to identify, and theoretically easy to legislate. As you move away from the extremes, it gets harder and harder to nail down. One man’s hate is another man’s protest, much as a large part of Robert Maplethorpe’s work was art in some people’s eyes and obscene in others’.
Where is the line between erotica and pornography? Between hate and anger? It’s all dependant on intent, on motivation, on circumstance, and it’s so often such a subtle difference that even the speaker may not know the difference.
I abhor Mr. Jones’ words and actions, but he has the right to express them, just as I have the right to object to what he says and does. Plus, his expression has led to the beginnings of public discourse on what religious freedom means in this country; has perhaps led other people to think about their beliefs about religion and tolerance when they might otherwise not have questioned or evaluated their opinions.
There’s nothing easy about freedom. I’ve been trying to figure out how to say what I’ve been thinking since I read your post, and I’m still not sure I’ve got it the way I want it, but I appreciate the opportunity to comment.
Jim C. Hines
September 16, 2010 @ 10:10 am
“I’ve been trying to figure out how to say what I’ve been thinking … and I’m still not sure I’ve got it the way I want it.”
You and me both 🙂
September 17, 2010 @ 10:55 am
When the discussion of hate crime legislation comes up, I think too often the argument gets framed around the “hate” aspect and not the “crime.” Hate and hateful language are indeed protected by the first amendment. And that’s fine. But what hate crime legislation actually does is add a layer of evaluation to the intent of a crime–and intent is a determination within our entire criminal judicial system.
As a society, we recognize, for instance, the difference between first degree murder (intentional targeting and planning) and manslaughter (accidental or negligence). The penalties for the former are more severe and, as a society, we take it as self-evident that they should be.
A common position people take against hate crimes is that killing someone because they are a minority or glbt or whatever is objective–it’s “just” murder, right? What does it matter why the victim was chosen? Well, then, one has to ask if lynching was “just” murder or if religious pogroms are “just” murder.
I’m talking general conception here, not specific legislation, but I would be incredibly surprised if any legislation makes it a crime to hate. That’s a very different thing than saying if someone specifically targets someone to commit a crime solely because he doesn’t like them.
I do think we have to be careful how we craft such legislation. I don’t believe, however, that all crimes are equal (and neither does existing law).
Jim C. Hines
September 17, 2010 @ 1:17 pm
Yep, that matches what I found when I was researching this thing. Hate crime laws apply to actual crimes, and speech — even book burning — don’t qualify as crimes. (Though we have one case in Michigan where someone left a burnt Quran at a mosque, which I’m told could violate laws about intimidation.)
And yes, I’d agree that once a crime is committed, intent is a relevant factor.
September 17, 2010 @ 8:46 pm
If I do not defend what he has to say just because I hate it then I have no rights to say what I want to say.
Jim C. Hines
September 17, 2010 @ 9:12 pm
Oh, I think what he has to say is pretty much indefensible. But I’ll defend his right to say it.
September 17, 2010 @ 9:32 pm
That was what I meant. The only way I can have my rights is by allowing everyone to have theirs. Like what they say or not. Because when you start restricting rights soon yours will be restricted too.
September 23, 2010 @ 12:54 pm
Unwritten rule states muslims like Obama can say what they damn well please and its free speech, but say anything against him and his fellow terrorists of islam and suddenly its hate speech!
Hang all of them from the gallows! Blow up Mecca! Give them their own 911!
Jim C. Hines
September 23, 2010 @ 12:56 pm
Hey thanks, anonymous commenter. That’s a good example of some of the things I’ve been talking about. See, you have every right to be an idiot, and to proclaim your ignorance as loudly as you choose. “Muslims like Obama” means you’ve failed Reality 101, but you still have the right to speak. Just as I have the right to mock you for being a caricature and a fool.