Opinion: Free Speech Versus Hate Speech

Most everyone is familiar with one of the tenets of the American media and proponent of individualism: Free Speech—so important that it’s the First Amendment.

Many understand this to mean you can say whatever you want, whenever you want, wherever you want—though that’s not the case, as a quick perusal of the annotated First Amendment demonstrates.

For example, in the Supreme Court’s ruling for Chaplinsky v. New Hampshire, Justice Murphy declares these famous words:

 [I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 

Sounds like a victory, right? If anyone makes disparaging statements about a racial or ethnic group, or against disabled people, they’ll get in trouble by law!

Not quite.

Despite Justice Murphy’s pretty words, setting a precedent and enforcing that interpretation are two different issues. Just look at the history of abortion legislation.

Let’s back up a minute. Why is the freedom of speech so important?

Personally, I think contemporary arguments (especially in Facebook comment threads) tend to boil down to two concepts: social unity and heterogeneity of ideas.

Social unity, as the term implies, means that everyone is on the same page when it comes to an issue. It depends largely on the degree to which citizens and non-citizens identify with one another. Virtually everyone believes Free Speech is one of the most important Amendments, and ought to remain Constitutional in the United States. That’s an example of a unifying factor. The idea, the concept, of freedom of speech connects each of us, and acts as one of the many foundational adhesives holding this country together.

So, a country that is massively divided on more issues than they stand together for has a very low level of social unity.

Heterogeneity of ideas means we have a diverse array of opinions, prejudices, thoughts, claims, concepts, philosophies, and so on. When you work on a team project, you all get together to brainstorm some ideas about your topic, methods, and formats—each member might pitch a different plan or suggest a more efficient or creative approach. That heterogeneity, or diversity, is fundamental to innovation, progress, and fun, among other things.

Now, it seems to me that people are mistaking social unity to mean homogeneity of ideas—i.e., social unity means everyone is of one mind, one opinion, one perspective. This misunderstanding creates a Straw Man figure or a black-or-white fallacy when defending Free Speech. For the latter, the argument often goes (in my experience), “Either you believe my opinion is free speech or you don’t believe in the Constitution!” I also see a lot of faulty analogies: “If it’s okay for me to say I hate bananas, why is it wrong to say I hate female gamers? It’s just a preference!” (This likens female gamers, aka human beings, to bananas, aka pieces of fruit.)

The above image is a great example of the fallacy of faulty analogy. Hate speech and science are not comparable issues in any way, shape, or form. What has essentially happened here is: one person says “I like bananas, but not apples,” to which the other responds, “I like armadillos, but not elephants.” These are two completely different opinions, not analogous in any way.

Social unity and heterogeneity of ideas are not exclusive concepts. You can have both, as they are both important to freedom of speech.

“But how?” you might ask. “How can we be socially united and have diversity of ideas?”

First of all, there’s a difference between an opinion and hate speech. Let’s have some definitions:

Opinion: 1. a thought or belief about something or someone; 2. the thoughts or beliefs that a group of people have; 3. a judgment about someone or something; 4. a judgment made by an expert.

A few synonyms include: mindset, point of view, and take on [topic].

Hate speech: public speech that expresses hate or encourages violence toward a person or group based on something such as race, religion, sex [gender], or sexual orientation, [or disability].

One synonym might be assertion (a statement you strongly believe is true—not is true).

When does an opinion cross over into hate speech? When you speak, sign, write, or share/disseminate word(s)/statement(s)/expression(s)/image(s) to which others have access in which you are claiming, advocating, asserting, or encouraging hate and/or violence towards a specific person or group.

Put more clearly, any kind of public expression that demonstrates hate or encourages violence towards a specific person or group is hate speech.

Here’s where things get really dicey: prosecution of hate speech is sporadic, inefficient, and rife with discrimination. For example, the officers who arrested and charged a Seattle resident, citing a Star Wars meme on her Facebook feed as evidence of her alleged crime.

And yet, courts have shown time and again that they do not consider hate speech to equate to hate crimes despite research showing a direct correlation of violence and online hate speech; in fact, according to the American Library Association, “Under current First Amendment jurisprudence, hate speech can only be criminalized when it directly incites imminent criminal activity or consists of specific threats of violence targeted against a person or group.”

What’s happening here is that the burden of proof lies on the person a) claiming an expression is hate speech and b) having the evidence to connect that specific hate speech to a specific hate crime.

For example, what the officer in the case against the Seattle resident above attempted to do is this: collect evidence of an alleged crime, find the perpetrator of that crime, and back up their claims of a hate crime with evidence of hate speech.

It seems to me that, according to US policies and legislation, if there is no hate crime, there’s no hate speech. That creates and fosters a culture of hate under the guise of freedom. It’s very much akin to “no body, no crime”–when in fact the crime was caught very clearly on camera in broad daylight for all to see.

Now, back to the question: How do we have both social unity and diversity of ideas without protecting hate speech?

First, we must define hate speech, its functions, and how it worms and squirms through the roots of society. The Cambridge definition above is a bit lacking, as evidenced by my [brackets] including some things they’ve left out, though I am still unsatisfied with it. What we need is a concise and comprehensive definition that leaves no ambiguity, no loopholes. With that definition, we can start to reform people and legislation, and bring up a more tolerant, empathetic, and unified society.

Second, we agree that hate speech is detrimental to society and ought to be punishable. There is no way around that that I can see. We need a more rounded, diverse, and empathetic system—education, legislation, economy, everything. For as long as people are spewing and promulgating hate speech, there will be violence and oppression. Oppression is in direct conflict with the idea of social unity. How can we be united if we are unequal?

Third, we must recognize that hate speech never has been and never will be a means of diversifying ideas. Oppression and violence are not diversity. Oppression and violence is not a hallmark of culture.

We have homogeneity of ideas without hate speech—look at our innovations, our inventions, our progress.

In other words, hate speech has no function nor any place in a society. Hate speech pits the Self versus the Other and benefits no one except the systems which protect hate speech. A divided society is weaker and more malleable.

And I guess I’m free to say that.

-Leigh Ann