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"The best test of truth is the power of the thought to get itself accepted in the competition of the market. I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe." Justice Oliver Wendell Holmes, Abrams v. United States (1919)
Recently, as an amendment to a defense appropriations bill, the US Congress passed and President Barak Obama signed into law the Matthew Sheppard Hate Crimes Prevention Act (HCPA), previously known as the Local Law Enforcement Hate Crimes Act. There are 45 states that already have hate crimes enhancement legislation allowing that a crime may carry a higher penalty if it was perpetrated against someone based, at least in part, on the victim’s race, religion, culture, gender, or sexual preference. So why is the federal law necessary? There may be a couple of reasons:
1) many state laws do not include the enhancement in the case of the victim’s sexual orientation;
2) if an alleged perpetrator is acquitted in state court, the federal courts can take jurisdiction and try him again for violation of the HCPA without the impediment of a double jeopardy claim.
The reason this act had to be amended to a defense bill is because Congress has been unable to get it passed in previous years. The big concern with this legislation, in the past and now, is that it can be used to silence those opinions that some find objectionable. Is a Christian minister who preaches in his church against homosexuality now liable for prosecution under the HCPA? Is a 9/11 victim’s family member now liable for prosecution if he speaks out against Muslim extremist bombers? Will this legislation be used to prevent or prosecute what the government considers to be “hate” speech by simply claiming that this type of speech has the potential to incite people to violence and is, therefore, a hate crime?
While this may seem farfetched on the surface, remember that we already have campus speech codes throughout the country and the United Nations has been discussing for some time now the inclusion of “hate speech” as a human rights violation. It is well accepted in this country that we are entitled to freedom of speech based on the 1st Amendment. It is also well accepted that the government is entitled to restrict some forms of speech because they do or can cause harm to others or ourselves. The concept of legal paternalism allows the government to regulate actions that hurt or endanger the actor himself, as well as allowing the government to restrict certain actions of people in order to protect the welfare of a class of people.
Libertarian icon, John Stuart Mill, would find restrictions on the use of certain words abhorrent. Yet even he would allow that some speech is not protected speech: slander, defamation, invasion of privacy, provoking violence, inciting panic or criminal action. But he believed, as do others in his same class of civil libertarians, that liberty is paramount and restrictions on liberty should always be suspect. Additionally, those who would restrict speech have the burden of proving that there is an imminent harm that will be caused by such speech and that the harm done by restricting it does not pose a greater danger than the speech itself. The restricting of speech that causes harm brings up another conflict involving the type of harm that would allow speech to be restricted.
There is a difference between intangible harm versus tangible harm that can occur depending on whether you agree with the way in which the civil libertarians see the world as opposed to the way the civil rights advocates see the world. The former believe that only the tangible harm to physical persons or property justifies the restricting of speech. Those who take the civil rights approach believe that there is a psychological or emotional harm that justifies the restricting of speech.
There is a difference between intangible harm versus tangible harm that can occur depending on whether you agree with the way in which the civil libertarians see the world as opposed to the way the civil rights advocates see the world. The former believe that only the tangible harm to physical persons or property justifies the restricting of speech. Those who take the civil rights approach believe that there is a psychological or emotional harm that justifies the restricting of speech.
If we return to the idea of legal paternalism, it seems that government might be justified in restricting the freedom of speech of those who would cause harm by emotionally or verbally abusing others in society based on characteristics of race or class. And if we were talking about speech that was creating an environment so hostile that a reasonable person would not be expected to tolerate such abuse, then a little government paternalism would almost be expected. A hostile environment does not promote equal treatment and is unlawful wherever it is found. However, restricting the speech of those in society who would hurl insults and make offensive remarks in public places would create a system of regulations that the courts would view as “highly suspect” because such regulations would be aimed at the content of the speech rather than at the harm or potential for harm caused by the speech.
Speech codes, mostly found on college campuses and outlining those words deemed to be hate speech, would fall into this category of suspect regulations. Hate crimes laws, while attempting to punish, more severely, those who physically hurt others solely on the basis of class, race, religion, etc. have the great potential to be over-used to the point of prosecuting not just “hate” crimes but “thought” crimes as well. By referring to offensive remarks and personal insults as verbal harassment in need of restrictions, we paint with much too broad a brush. An opinion has the potential to be insulting, but that does not make it dangerous. To claim that speech, which is insulting to someone as a member of a class or race or religion, can be restricted is also too broad.
The law must be color-blind, and it must be consistent, and it must provide equal protection of the law to all people. We cannot offer more protection to one class of people than we do to the others. This would be a violation of the 14th Amendment’s guaranty of equal protection. We cannot allow some insults and not others. We cannot allow some opinions and not others. It is the height of hypocrisy when college campuses allow the opinions of the ideological left while trying to suppress the opinions of the ideological right. These are the places where, we claim, all opinions are welcome – or should be.
For those who feel they have been unfairly insulted or defamed, we have laws in place to handle that; tortious speech is against the law and the courts are available to provide relief to those who have been injured by speech. To criminalize certain speech or to attempt to restrict speech in exactly the venues where freedom of expression should be paramount – on college campuses – is a grievous error and an insult to all that America stands for. For the government to attempt to censor certain expressions because they are insulting is not what the Framers envisioned when they wrote the 1st Amendment. What we refer to as hate speech may be abhorrent, but it cannot and should not be suppressed. In order for speech to be justifiably restricted it must cause physical harm or it must provoke or incite imminent lawlessness or violence. Hate speech does not meet the criteria; speech alone is simply not violent.
Maryann Zihala, J.D. is a political scientist and author of:
Rights, Liberties & the Rule of Law (2004) and
Democracy: The Greatest Good for the Greatest Number (2003).
