Hate Speech, Political Gain, and the First Amendment

In 1789, when the newly created House of Representatives debated the proposed First Amendment to the Bill of Rights, two sentiments were predominant in regard to its clauses on religion: the necessity of impartiality on the part of government, and the protection of the individual. James Madison initially supported a version of the First Amendment that protected “equal rights of conscience,” understood as a right applying to both religion and moral beliefs.  But the House concluded that the Establishment Clause and protection of the individual’s exercise of religious freedom were sufficient. When these are viewed along with their sister clauses guaranteeing freedom of speech, press, assembly, and petitioning, it is clear that all of the amendment’s principles are related to freedom of expression, freedom for any act that involves imbibing or distributing ideas.

Thus, the First Amendment and its core principles are inextricably linked to the idea that all information should be unrestricted, that dialogue should be openly fostered, and that no mere statement should be considered taboo enough to be banned. The Supreme Court has, however, repeatedly recognized that the Framers intended to permit small exceptions which allowed freedom of expression to be curtailed.

Chaplinsky v. New Hampshire resulted in a judicial understanding that “fighting words”-- meaning words that tend to incite violence or breach of the peace or that are, by their nature, an injury to the person they are spoken to--are not protected under the free-speech guarantee. In addition, several landmark decisions have upheld restrictions on lewd and obscene speech, although occasionally questionably. By and large, freedom of nearly all expression is a universally acknowledged principle of American jurisprudence. Culturally, however, Americans are increasingly challenging that principle.

Today, some opinions that others strongly disagree with are denounced as hate speech worthy of social, academic, and even legal punishment. But alleged hate speech is not cited as an exception in the Bill of Rights, and the Supreme Court has repeatedly refused to allow the banning of any such speech that was not directly connected with fighting words. Although we should acknowledge the existence of real hate speech, and agree that it does not reflect well upon Americans who use it, it is nonetheless true that the advocacy of some policies and ideas is too often labeled as hate speech by their opponents in order to build more opposition to them. This is a familiar and effective strategy--since who, other than a few extremists, would want to support something considered racist?

It is clear to me that the trend toward frequently labeling ideas as hate speech for political gain is a volatile and dangerous one, and an affront to the beliefs of the Founding Fathers. It is startling to see how often accusations of hate speech can endanger free speech and thought. After all, to control what individuals express is to control, to some extent, what they think. Aleksandr Solzhenitsyn brilliantly reflected upon this in his work, in direct reaction to the totalitarian Soviet state under which he suffered. The poignant and even terrifying reality is that a polity that does not desire widespread individual rights to the expression of joy and discontent, agreement and dissent, and that does not encourage differing viewpoints, is a polity that is no longer free. I ask you: do you want to remain free?