Hate Speech & The First Amendment
by Paul Weichselbaum

Editor's Note: The April 2006 PNL featured an article on hate speech by

SU professor Leslie Bender (see www.peacecouncil.net/pnl). We have chosen to run a second submission on the same topic because of the ongoing and timely nature of this debate among committed progressive activists. The fact that one article follows the other is no indication of one being more valid than the other. We offer them both as critical essays on activist responses to hate speech.

Leslie Bender's April 2006 PNL article "Thinking about Hate Speech," makes broad-brush rhetorical claims about freedom of expression without reference to the First Amendment. The article blurs the distinction between the Syracuse University campus and society at large. Is she advocating for a "'no tolerance' policy against hate speech" on campus or everywhere in the US? If she only means SU, what is the compelling interest for Peace Newsletter readers?

In the context of US jurisprudence, what does it mean to say, "A 'no tolerance' policy against hate speech promotes, rather than undermines, values of free expression, liberty, and equality"? This statement ignores the history of First Amendment law in our country as well as how governments throughout the world repress political and cultural expression in the name of some greater good. Imposing new restrictions on speech does not promote First Amendment freedoms.

On campus Chancellor Nancy Cantor can do as she pleases to manage and oversee university programs, including HillTV. The SU administration owns SU's print and electronic media and the Chancellor can decide what's permissible, within the university's rules. Away from the SU hill, sometimes known as the "real world," there is no Chancellor, yet, to close down media outlets that produce improper content.

More Speech, Then More Speech Again
In the real world the response to speech we don't like is, indeed, more speech. In the realm of expression, I disagree with her suggestion that we "need to balance the values of equality and liberty," for one simple reason: Who will be the censor that examines the contents of newspapers, websites, blogs, films, music, and diverse art forms? Who will be the censor that excises materials and punishes speakers that don't support "equality, justice, participatory democracy, inclusion, diversity, human dignity, respect, and peace"? The government, that's who. While the Bush Administration seeks to limit access to information and to promote narrow views of legitimate expression, why is a left-oriented law professor extolling the virtues of censorship? The fact that Bush misuses and overuses the word "liberty" does not mean that we should trash it. When governments around the world have had the power to decide what will be published or suppressed, they have not used that power benignly.

By claiming that "The law already contains many limits on free speech and academic freedom" she conflates two very different environments. Rules against plagiarism and copyright and trademark violations are not limits on free speech. After all, whatever is illicitly appropriated is already available in the marketplace of ideas. These are issues of ownership, not expression. Rules against plagiarism are punishable on campus, but plagiarists don't go before criminal courts, and civil suits concern "copyright infringement."

Most of the other examples of "free speech infringements" included in the article are inherently criminal, by their intrinsic connection to criminal acts that are not expression. Child pornography is illegal because it is the product and proof of a criminal act and its distribution furthers that criminal act. (Virtual child pornography has, so far, been ruled to be protected speech because no actual children are harmed in its production.) Adult pornography is legal, though it is subject to zoning restrictions and broadcast rules; i.e., it can't be shown on network television. Of course, what ends up on network and cable TV is often awful. To have a board of censors control programming is, however, a cure far worse than the disease.

Surprisingly, there is no mention of the free speech limitations that have been used to stifle political speech, such as conspiracy prosecutions, which are often aimed at the groups we are both hoping to empower. Nor does she note that the worst enemy of greater equality of expression is the concentrated ownership of the media. It is worth struggling mightily to gain broader and more democratic access to the means of expression.

Ms. Bender jumps from narrow examples of legal limits on expression to advocate the regulation of speech to achieve political ends. She paraphrases Dr. King: "liberty for some at the expense of liberty for others is not liberty for anyone." But was Dr. King advocating censorship? Abraham Lincoln said, "We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others, the same word may mean for some men to do as they please with other men and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name - liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names - liberty and tyranny." Remember that the vital issue at stake then was slavery, not tasteless, offensive skits.

Activism, Not Censorship
If the core issue is inequality, then the answer to "hate speech" doesn't necessarily have much to do with that speech at all. The answer is more activism, more attention to the socioeconomic conditions that fuel poverty, and more coalition building to counter the negative outcomes of racial, ethnic, and other divisions. When one divides the world into victims and non-victims and demands that "victims" be protected from offensive speech, one infantilizes the very people who should be empowered. Despite her personal experience, "more speech" is effective. The civil rights movement was built on vigorous and relentless expression: marches with and without permits, boycotts, filling in voter registration forms despite intimidation, preaching to local communities and the entire world. The civil rights movement was "subversive" and targeted by the FBI. Yet enormous legal and sociocultural victories were achieved through the expression of speakers and marchers, even while much remains to be accomplished.

One surprising thing about the HillTV controversy is that the Central New York chapter of the New York Civil Liberties Union (CNYCLU) hasn't voiced an opinion. Since the station's closure was apparently proper and no government had any part of the Chancellor's decision, it makes sense that the CNYCLU did not address the issue at first. But Ms. Bender has made statements unchallenged in writing that must run counter to the CNYCLU understanding of and advocacy for First Amendment rights. When there are right-wing efforts to reinterpret the First Amendment, the CNYCLU has been known to send letters or otherwise make its views known in the Post Standard, Peace Newsletter, and/or its own publications.