I was recently invited to participate in a panel discussion over
the subject of “free speech.” Among the subtopics on the agenda are those
of the Confederate monument controversy and the relationship between free
speech and “hate speech.”
My schedule forced me to
decline the invitation. However, even had this not been the case, I
probably would’ve declined at any rate. The description of the
discussion, you see, makes it clear that its organizers assume, first of all,
that the distinction between “free speech” and “hate speech” is a meaningful
one. In doing so, they presuppose as well the meaningfulness of the
concept of “hate speech.”
Those who make these
assumptions beg the question. These presuppositions themselves should be
subject to discussion.
Is there
really such a thing as “hate speech”?
If so, is there a non-arbitrary
or effectively objective set of criteria for establishing it?
What
is hate?
Is so-called “hate speech” of
a different species than free speech?
If “hate speech” is not of a
different species than free speech, and if the latter is something to be valued
and protected, then why even bother mentioning “hate speech?”
If
“hate speech” is a
different species than free speech, then in what does this distinction between
the two consist?
Is the distinction between
free speech and “hate speech” either morally or legally relevant?
These are some of the
questions that any discussion over “hate speech” must include.
However,
it is equally necessary that such a discussion also subject to interrogation
the concept of free speech,
for it is painfully obvious that there is much conflict and confusion over
it, especially among
the self-styled champions of
free speech.
Since space and time
constraints preclude a more thorough analysis, some quick thoughts on these
matters will have to suffice for now.
Free
Speech
Invariably,
those who invoke their “right” to free speech invoke at one and the same moment
the First Amendment to the United States Constitution. The latter,
though, was originally intended to guard against the suppression of the speech
of American citizens by the
United States government.
Subsequent
Supreme Court rulings would eventually recognize in the Bill of Rights
individual protections against state governments as well. The point,
though, is that one’s right to free speech or expression, at least as it has
traditionally been understood in America for most of the country’s history, is
a right against the
government: Private actors are not obligated to give anyone a
hearing.
In other words, if I refuse
to allow you to hold a rally or deliver a speech on my front lawn or in my
living room, I am most definitely not guilty of violating your right to free
speech.
Depending upon the
circumstances, I may be guilty of any number of things: breaking a promise that
I once made to allow you to express yourself on my property, being
unhospitable, closed-minded, intolerant, or uncharitable, say. But I
cannot be accused of undermining your right to free speech, for if your charge
was legitimate, this would in turn mean that I had an obligation to allow you to
use my property for your purposes. To repeat, I could have no such
obligation unless I made you a promise to this effect beforehand. And
even then, non-performance on my part would not constitute a violation of your
free speech.
First, if our agreement was informal—a
handshake, say—then while I may be guilty of a moral offense, I still act
legally.
Second, even if our agreement
was formal or contractual, the only violation of which I could be guilty is a
violation of the contract. This, though, is not a violation of your right
to free speech.
All of this being said, it is
of course true that any public or quasi-public institution, like a college or
City Hall, that denied a citizen the right to speak on its premises—whether
directly or by way of “the heckler’s veto”—would indeed be guilty of infringing
upon that citizen’s First Amendment rights. A public institution, after
all, is a government institution. As such, it has a
Constitutionally-delineated obligation to not impede its citizens’ free
exercise of speech.
More can be said here.
For now, though, let’s turn to “hate speech.”
Hate
Speech
The
first point of which to take note is that the concept of “hate speech” is a
political, not an intellectual, construct. More specifically, “hate
speech” is a politically partisan or Ideological invention,
an ominous-sounding phrase that can be easily packaged into a bumper sticker or
splashed onto the front of a t-shirt. It is a slogan with talismanic
effects that its architects can use as an instrument by which to label and
dismiss speech that they dislike, i.e. speech that threatens their agenda.
That this is so is gotten
easily enough by several considerations:
(a)It is only ever those on
the left who brand the speech of their political opponents as “hate speech.”
Not only do those to their right refuse to reciprocate in kind; rarely do those
on the right even use the term “hate speech.”
(b)The
selection of examples of “hate speech” is blatantly arbitrary. For
instance, white heterosexual men could declare from the rooftops their hatred
of one another and yet this wouldn’t
be regarded as “hate speech.” One friend or lover, in a moment of anger, could
express “hatred” of another, and neither would this be considered “hate
speech.”
Hordes of Black Lives Matter
activists can block traffic and call for the murder of police officers, and yet
this does not constitute “hate speech.”
Kathy
Griffin can hold an image of a bloodied, decapitated head of the President of
the United States—a Republican President—and
yet this is not branded as “hate speech” (or, in this case, more precisely,
hate expression).
Those who revile President
Trump can gather in the streets and call (in some instances) for his death, a
rapper can openly threaten to turn the First Lady into a prostitute, and those
60-plus million Americans who voted for Trump can be dehumanized by a
Democratic presidential candidate as “irredeemable,” “deplorable,” “racist,”
“sexist,” “homophobic,” “transphobic,” “anti-immigrant,” “xenophobic,” and
“Islamophobic”—and yet none of this is regarded by the self-styled opponents of
“hate speech” as, well, “hate speech.”
This list of examples could
be extended ad infinitum.
Free
Speech vs. Hate Speech: A Bogus Distinction
The distinction between free
speech and hate speech is a piece of sophistry, much like the distinction
between “human rights” and “property rights” that also became commonplace among
leftist activists. Whereas the latter was used as a rationale to suppress
property rights, so the former invention is being used now as a rationale for
suppressing free speech.
Of
course, everyone can find some speech to which they take offense, and there is
some speech, doubtless, the majority of people will deem indecent. No
matter: As long as those who lend offense express themselves legally (in
accordance with the Constitution) and peacefully—as long as they refrain from
behaving violently—then their speech is free and,
thus, protected.
And this in turn means that
those (like so-called “Anti-fascists” and “anti-racists”) who attempt to shout
down those exercising their free speech, to say nothing of besieging them with
violence, act criminally.
Jack Kerwick [send him mail] received his doctoral
degree in philosophy from Temple University. His area of specialization is
ethics and political philosophy. He is a professor of philosophy at several
colleges and universities in New Jersey and Pennsylvania. Jack blogs at Beliefnet.com: At the Intersection of Faith
& Culture.
Previous
article by Jack Kerwick: Bush
Lies