Free Speech Hate Speech Counter Speech
The first crossover episode between May it Displease the Court, which looks at corruption in the courts from judges through dark money anti-democratic far-Right donors, and RhetoricLee Speaking, banishing banality one speech at a time. Your co-hosts, Mary and Lee, look at censorship, free speech vs. hate speech, and counter speech. Here are the highlights:
1) as much as we may want the law to recognize hate speech sometimes when truly vile opinions (in our opinions) are being circulated, the law does not recognize a hate speech exception to the first amendment that guarantees the right to free speech and
2) if there were such an exception it would be used to suppress minoritized people and their fight for civil liberties more often than it would be to silence transphobic, racist, sexist, and other kinds of exclusionary speech.
We take you through a few cases that have been instrumental in establishing the “no hate speech” exception including Snyder v. Phelps SCOTUS 2011 (Westboro Baptist Church) and Clark v. Community for Creative Non-Violence , 468 U. S. 288
We also look at some personal examples. Mary discusses an experience at the Anne Frank House right after 9-11 and Lee discusses a current campus event where the free speech of a racist and transphobic student is being protected. They also discuss potential alternative terms to replace hate speech, including “racist erasure” and “transphobic erasure.”
Finally, Mary explains the issue of “school-sponsored speech,” in which first amendment rights come up against the purpose of educational institutions and the need for more counter-speech on the Left as the corrective for hateful-speech-that-isn’t-hate-speech by the anti-democratic far-Right funded by pro-corporate dark money donors.
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Free Speech Hate Speech Counter Speech
Mary: I was flying back from France when the planes hit the Twin Towers. After US airspace was closed my plane was turned back to Amsterdam. I spent an extra week in Europe until I was able to get back home. After a few days of securing funds bc I had no money and no credit card. We decided to do a little sight seeing and went to the Ann Frank House. I had been interested in the Holocaust since I was in elementary school and had read and studied it extensively.
Set the scene - First you went on a tour and saw the attic where Ann and her family and another family hid out from the Nazis. I saw her bedroom and the pictures she pasted on the walls. We saw the hidden bookcase entrance. It was really emotional to be stranded in another country, far away from family.
Describe the exercise –Then you descend into a part of the House that is more like a typical museum exhibit. They have the tour group sit around a table and in front of each person were two buttons, red and green and above the table were two lines of lights. At the end was a screen and on came a film that showed footage of far right Austrian politicians saying racist, hateful things and then the moderator asked whether we thought that speech should be protected, hit the green button or censored hit the red button. We did and the vast majority supported free speech. This process was repeated several more times and each time the speech got more extreme and then they started adding in comments that made it seem as if more people were supporting these hateful politicians and the votes became 50/50 free speech and censorship and by the end the vast majority had shifted from supporting free speech to supporting censorship of speech they didn’t like. I have never been a part of anything like that type of indoctrination before or since.
My reactions - I was pretty pissed because it was clearly a pro-censorship propaganda tool and it worked with the people in my group. Kind of soured my opinion of the Ann Frank House. I mean, I’m an American so the 1st Amendment; Freedom of Speech is beat into our collective identity. I was a law student at the time. I had recently taken Constitutional Law and studied this very topic. So I fully believed that the best medicine for hate speech was more speech, not censorship. Now, of course this was 2001, Fox news was 5 yrs old, it was just starting to ruin my former mother-in-law. Charles Koch and his brother were still toiling away in secret trying to remake the way American think. But I did get where the museum was coming from. Some ideas aren’t just offensive, they are dangerous and what do we do with those?
What is a Hate Crime? the FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity,” including skin color and national origin. Hate crimes are overt acts that can include acts of violence against persons or property, violation or deprivation of civil rights, certain "true threats," or acts of intimidation, or conspiracy to commit these crimes. The Supreme Court has upheld laws that either criminalize these acts or impose a harsher punishment when it can be proven that the defendant targeted the victim because of the victim's race, ethnicity, identity, or beliefs. A hate crime is more than than offensive speech or conduct; it is specific criminal behavior that ranges from property crimes like vandalism and arson to acts of intimidation, assault, and murder. Victims of hate crimes can include institutions, religious organizations and government entities as well as individuals.
1st Amendment - What does it say?
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.
What is Hate Speech? – Hate speech is subjective, meaning it means different things to different people. It’s a term that is thrown around as if it has a set definition. But, it doesn’t. Hate Speech is not a legally defined term.
- The 1st Amendment protects the free exchange of ideas even if the expression of those ideas is considered offensive or hateful.
- Matal v. Tam (2017) SCOTUS 8-0
- Held that a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys. It does not permit discrimination based on viewpoint and like it or not giving offense is a viewpoint.
- Any oft repeated idea in Sup Ct case law is "the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.
What do most people mean when they use the term hate speech? Typically it is used to describe speech designed to demean, vilify or incite hatred against a group or class of people because of their race, religion, sexual or gender identity, disability or national origin.
If this speech is copacetic with the 1st Amendment, are there any legal limits on speech?
Yes
- Speech becomes criminal when it is a specific threat of violence or incites imminent criminal activity targeted at a specific person or group. “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements.
- other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future).
- Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.
For example, two years ago two students at another SUNY school posted a snapchat of the two of them just lying in bed on Halloween and the caption said “gonna lynch some ni…. tonight.” To me, given the history of lynching, given the way it was phrased, given the use of the racial slur...that should be hate speech.
Problems with excluding Hate Speech from 1st Amendment protection
- So, eventually a Judge is going to have to decide whether specific words are hate speech or not, not a good idea to give Judges this power. Why?
Speech that makes people angry, or upset is protected by the 1st Amendment – example the Westboro Baptist Church
Snyder v. Phelps SCOTUS 2011 (Westboro Baptist Church) for 20 yrs this group has picketed military funerals to express their belief that God hates the US bc of it’s tolerance for homosexuality. Fred Phelps is the leader the other members are all his relatives. They traveled to Maryland and picketed 1,000 feet from the Church, on public property, in accordance with instruction from local law enforcement by silently holding up signs for 30 minutes that read “Thank God for Dead Soldiers” “Fags Doom Nations” “Priests Rape Boys” “You are Going to Hell''. The soldier’s father filed suit for intentional infliction of emotional distress. A jury awarded him millions in damages. The 4th Circuit reversed the conviction holding that the 1st Amendment shielded them from civil liability because the statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. “[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.” Connick v. Myers , 461 U. S. 138 . Although the boundaries of what constitutes speech on matters of public concern are not well defined, this Court has said that speech is of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” id., at 146, or when it “is a subject of general interest and of value and concern to the public,” San Diego v. Roe , 543 U. S. 77 .
Court must independently examine the “ ‘content, form, and context,’
Even protected speech is “subject to reasonable time, place, or manner restrictions.” Clark v. Community for Creative Non-Violence , 468 U. S. 288 . Because this Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled, Westboro must be shielded from tort liability for its picketing in this case.
Robert’s opnion – 8-1 (Alito dissenting)
Lee: and when you listen to these examples like Westboro Church of course you want to call it hate speech. I want to call it hate speech. But we always have to remember that even though the law does NOT equally apply to everyone, it pretends as if it does and so any law you want to make would apply to everyone. So you can only imagine what would happen if hate speech were enforceable and Black Lives Matter protests happened…
So while I can really understand wanting the law to step in and shut down some of these vile opinions, I also realize that if hate speech were regulated then it would be used against minoritized persons WAY more often than it would against homophobic speech, racist speech, etc.
How do we get social change if hate speech isn’t a crime? Punishing people for speech we don’t like – slippery slope – Watch Hong Kong Doc – Oscar Nom Don’t Split This is what happens when an authoritarian government – China, wants to stifle pro-democracy speech and to criminalize it. The GOP are authoritarian and anti-democratic as evidenced by their attempts to overthrow the government, propagate the big lie to undercut democracy and the 361 voter suppression bills currently being pushed by Republican state legislatures. What will they do to speech they don’t like if they get back in power?
Counter Speech is the antidote for hate speech – examples, strategies – in the US we believe that the remedy is more speech, not stifling speech. The First Amendment protects the right to advocate and agitate for a change in 1st Amendment law. And you could argue that the law should be changed to exclude hate speech, but this advocacy needs to define what constitutes hate speech, bc it is an undefined term and highly subjective. If the law is changed then it will be up to Judges to apply the new definition of hate speech to whatever circumstances brings about an alleged violation. Eugene Volokh who teached free speech law at UCLA law school, and used to clerk for Sup Ct justice Sandra Day O’Connor and also 9th Cir Judge Alex Kozinski (side note he retired after several law clerks accused him of workplace sexual misconduct including showing them porn at work on multiple occasions) suggests advocates of this expanded area of non-protected speech “should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries, and prosecutors are supposed to distinguish the two.”
Problems with continuing to say hate speech when it just legally isn’t defensible
--keeps us trapped in a binary of free speech/hate speech. so one side says hate speech the other side says free speech and it’s so obvious a slam dunk for whatever side claims free speech.
--in fact, quote-unquote “american” who protect “free speech” are hoping you’ll scream about hate speech because they know it strengthens their position. I’ll give you an example on my campus a bit later when we talk about school sponsored speech
So I actually put a post on my Facebook page asking my rhetoric/communication scholar hive mind what options they suggest for navigating this binary between hate and free speech. What other options are there.
Here are some of the terms they suggested.
Symbolic racism.
Aversive racism.
Implicit racism.
the step below racism “racial animus.”
symbolic racial violence
overt racism
racist erasure
The point isn’t to choose any one of these. The point is that when you’re willing to agree that the binary isn’t working and that counter speech is the only action we have THEN you start getting creative about inventing language to create arguments that short circuit the free speech logics of the opposition. Sure, it’s free speech. That isn’t the point. It’s also racism.
One thing I’ve heard a lot is “hateful speech” because it’s not “hate speech” but it’s close. To me, it’s too easily perverted. The other one suggested by Judith Butler and Wendy Brown is "injurious speech”--granted they’re writing about legal theory and not public protest--but even that seems to imply that we gauge the effects of speech by how HURT or INJURED the person on the receiving end is. I think that’s also a losing battle because it’s based on a subjective experience of injury that the far Right will just deny. We’ve seen this again and again with cancel-culture. “Who could get so upset over some drawings in a Dr. Seuss book?”
So I don’t use those two but I do use the earlier list and try to make the claim that I don’t care if your speech is free or not, it’s still racist, homophobic, etc. And, if necessary, I use a modifier like “symbolic racism.” Not to minimize the effects of the act but to think about what, argumentatively, I can sustain.
Mary what do you think?
Mary: concerns about many of the terms from a legal perspective but racist erasure is compelling and the most accurate description of what’s happening.
Now we are facing new challenges with the proliferation and popularity of propaganda right wing media Fox News, Oann, Newsmax, right wing radio, podcasts facebook, the internet.
Fairness Doctrine – what was it, who got rid of it. A quick google brings up some historical discussions and some negative opinion pieces about how unfair and awful the Fairness Doctrine was by the Heritage Foundation and the Cato Institute – Koch
It was adopted in 1949 - The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance. The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis. In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them. How that was done was left to theon’s discretion, and the FCC intervened in only the most egregious cases.
By contrast, “equal time” or “equal opportunities” stems from a different source in the Communications Act – the Section 315 provisions on the treatment by broadcast stations (and local cable systems) of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time
The Reagan-era FCC eliminated this rule, which was never reinstituted in subsequent decades under either party. a subsequent Trump-era 2017 FCC decision loosened ownership restrictions on stations. In combination, these two decisions not only allowed given stations to present only one view, but for many stations nationwide — now more easily owned by the same conglomerate, such as the conservative Sinclair Broadcast Group — to present the same view.
Rush Limbaugh started his talk radio in 1988, Fox began in 1996
Now what?
School Sponsored Speech - The test to establish first amendment protection in the context of school-sponsored speech is laid out in Vanderhurst v. Colorado Mountain College District (2000).
- “Whether an action restricting a plaintiff’s school-sponsored speech is reasonably related to the school’s legitimate pedagogical (educational) interests is the test for determining whether” his speech is protected by the First Amendment.
Lee: Recent issue on campus, an education major--someone who is going to teach children--is posting horrible stuff on social media validating slavery and denying trans identity. Very much racist and transphobic erasure. When the student was suspended from student teaching for violating New York State law as an education major (can’t promote a bias free classroom) he lied on social media saying he was suspended from the school and then the far-Right anti-democratic dark money donor funded legal complex swooped in and miraculously, a few days later, he’s reinstated into his student teaching. Shortly thereafter, he painted over Black Lives Matter symbols on campus with USA and red and blue paint.
TFP Student Action TFP Student Action, a project of “The Society for the Defense of Tradition, Family and Property,” is the front for this operation.
Describes itself as a group that was created to counter “liberal, socialist and communist trends of the times and proudly affirm the positive values of tradition, family and private property.”
The petition, which has accumulated nearly 20,000 signatures, describes itself as a peaceful protest and argues that the student’s original suspension “sound[ed] like something right out of a communist gulag, not USA” and further elaborated that “What happened … is not merely an attack on truth, or on free speech, it is an attack against reality itself.
It’s all part of the dark money, Koch and Mercer-funded attack on progressive values using “free speech” as their shield.
Speech First Inc. claims to be and is regularly called a grassroots civil rights watchdog is actually a highly professional astro-turfing campaign, with a board of former Bush administration lawyers and longtime affiliates of the Koch family.
Born in 2018, the group seems to have been enacted for the purpose of inserting itself or to put it more accurately to instigate campus culture wars:
Here’s how grassroots this group is – it President Nicole Neily said no students were involved in founding the group. The $5 lifetime membership dues—a requirement for the group to take up a student’s case in court—is a “negligible part” of its funding, which mainly comes from undisclosed backers AKA Dark Money AKA Kochs and their ilk. Speech First’s board of directors includes a former head of a Koch-backed trust and two conservative attorneys from Koch-funded programs.
“being branded as neutral, but having the people who know, know that you’re actually conservative, puts us in a unique position.”
The board’s center of gravity is George Mason University, school recently revealed to have given the Kochs some sway over academic appointments in departments they funded – so much for academic freedom
Speech First plans to “flood” the courts with similar lawsuits, starting with at least three more at other colleges this year.
Speech First Inc. v. Schlissel (6th Circuit) 2019
- In this case, Speech First, Inc., an organization working to protect university students’ civil
rights, filed a motion for a preliminary injunction on behalf of three unnamed University of
Michigan (UM) students. These three students claimed that their free speech rights were chilled
by UM’s disciplinary rules and procedures which prohibited “harassment,” “bullying,” and
“bias-related conduct.” Speech First also claimed that the “Bias Response Team” at UM
investigated and punished students for engaging in “bias” conduct. “Harassing or bullying another person—physically, verbally, or through 83 some other means” is listed (Speech First v. Schlissel 2018). The Statement, including the violations section, governs all actions on UM property, at UM events, and occurring in the city of Ann Arbor, MI. The BRT was solely an educational resource and a support mechanism for students; it had no disciplinary authority. The term “bias incident” was written to be broad, because the BRT wanted to support any students who needed the resource, not to punish the alleged perpetrators
Speech First Inc v. Killeen (7th Circuit) 2020 - Speech First sued 29 administrators at the University on behalf of four anonymous students. These students claim that they wish to express what they describe as "political, social, and policy views that are unpopular on campus." Speech First's complaint lists examples of such viewpoints in general terms: opposition to abortion, support for President Trump, belief in traditional marriage, support for strong immigration policies, support for the "deradicalization of Islam," support for First Amendment protection of "hate speech," opposition to gun control, and support for LGBT rights.
Speech First alleges that three University policies—the responsive action of the Bias Assessment and Response Team and the Bias Incident Protocol to reports of "bias-motivated incidents" on campus, the imposition of No Contact Directives, and the prior approval rule—chill their student members' speech, force these students to engage in self-censorship, and deter them from speaking openly about issues of public concern.
Speech First challenges the actions of the University's Bias Assessment and Response Team ("BART"). BART "collects and responds to reports of bias-motivated incidents that occur within the University of Illinois at Urbana-Champaign community." In turn, BART defines "bias-motivated incidents" as "actions or expressions that are motivated, at least in part, by prejudice against or hostility toward a person (or group) because of the person's (or group's) actual or perceived age, disability/ability status, ethnicity, gender, gender identity/expression, national origin, race, religion/spirituality, sexual orientation, socioeconomic class, etc." In addition, BART "[p]rovides opportunities for educational conversation and dialogue" and "[s]upports those impacted by bias."
determine whether to reach out to the involved students, if they are identified, to invite them to participate in a voluntary conversation. BART also devises a response plan, which could include "[e]ducational conversations," "[m]ediation, facilitated dialogue," "[e]ducational referrals," "[r]esolution agreements," or "[r]eferrals to other offices and/or programs."
Speech First Inc. v. Fenves (5th Circuit) 2020
Conclusion - What the left needs to appreciate is excluding hate speech from the 1st Amendment means it can be suppressed and that is a dangerous proposition especially when we are facing a huge increase in Trump appointed right wing Judges. It is the same tactic Republicans are using by passing bills to suppress the right to vote. Instead of trying to win over voters, to adopt policies that the majority of people support they are just working to suppress the power of those who disagree with them. That is lazy and authoritarian. The left wants to be the opposite of that approach. We need to do the hard work of making the arguments against offensive hateful speech and to engage in the debate as much and as passionately as the right. We don't have the Koch money to create and fund faux grassroots movements.
Lee: and the more popular argument AND if there’s one thing that not being bound by old traditions and outdated categories gets you, it’s the ability to think critically and creatively about new identity positions. If anyone can strategize counter-speech, it’s us.
Mary: We also have the numbers. And by using our voices collectively and consistently we can defend inclusivity without trying to exclude offensive speech.
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