I think i just read one of the scariest option pieces I’ve encountered lately. It’s entitle, Why America needs a hate speech law. It is,, of course puvlished in that great defender of light over darkness, The Washington Post. Why is it scary? It’s because there seems to be little to no understanding of how the First Amendment works. Certainly there will always be speech that some dislike, that believe shouldn;t be allowed, but where does it stop?
The author uses an example of burning the Koran and how our Muslim friends cannot understand how this is allowed. Well, in the same sense that burning any book is allowed. The author’s argument is this:
…but it should not protect hateful speech that can cause violence by one group against another.
That’s an interesting take, but I believe it to be a little simplistic. Unless someone is directly advocating for violence against another based on race, ethnicity, religion, sex, or sexual orientation, then aren’t they allowed there own thoughts about any of these? Certainly we may view those that disdain same sex marriage, or Islam as bigots, but then that’s just our opinion, isn’t it? How is anyone to know that simply disliking someone is going to cause violence? We already know, or should, that a direct incitement to violence against another person or group does not constitute free speech.
How about the burning of our flag in protest to war, or racism or whatever it is being protested at the time? Is that an incitement to violence? I know a lot of veterans that take this action as an insult to their service, but I have yet to hear or read about any veteran physically attacking anyone performing such an act. In fact, although insulted, most, if not all I know, would say something to the effect, That’s why I fought. Remember, in recent history when football players took to their knee when the National Anthem was played before a game? That caused a certain amount of outrage, but did any of those players suffer physical assault because of their protest? I can’t recall a single incident occurring. These two examples, some may refer to as a form of hate speech.
So it comes back to the question of where hate speech begins and ends. Three years ago, Hillary Clinton, at a campaign rally, described Trump supporters as a basket of deplorables, further defining that as being misogynist, xenophobic, homophobic, islamophobic, etc. Hate speech. Just recently, on the campaign trail, Bernie Sanders described Trump supporters as racists. Hate Speech. Not much different than anything Trump himself has said about illegal immigration, for instance which has been described as racist or hate speech by his detractors.
In order to implement any such law, we would have to gut the First Amendment if not just repeal it in whole. Here’s what the First Amendment guarantees, and I have highlighted those clauses I believe, at a minimum, would have to be repealed:
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, and to petition the Government for a redress of grievances
The free exercise of religion? Yes, of course that would have to go. What of those religions that teach homosexuality or sex before marriage is a sin? The same with abortion. Well, those teachings may be hurtful and insulting to some. I’m sure they are today anyway. But if we have a Hate Speech Law, those beliefs could not be tolerated. Notice I included the press as well. How many times have any of us read an opinion piece, or heard a commentary where we thought the writer or speaker went too far and that their comments were injurious to us (left or right-wing media, no exceptions)? What if some writer protested some policies of the government s/he didn’t like. Could that opinion be held to be hate speech? Possibly, so yes, that’s why that clause would have to go as well. You can’t protect one form of speech (the press) and not another.
Notice the picture used for this post. The person carrying that sign could be accused of hate speech. Yes, it seems extreme, but once we start defining what speech is allowed and what is not, anything goes.
I may not like someone’s expression of speech, but unless it leads to direct violence, not just some hypothetical violence, then that speech should be allowed to be expressed. Once we start limiting what people may say, in any format, we do end up in a tyranny, which is exactly what the Framers sought to prevent.