When Does ‘Hate Speech’ Encroach on ‘Free Speech’?

boundaries-of-free-speech

 

Protests Wednesday night at UC Berkeley prompted university officials to cancel the scheduled speech by Milo Yiannopoulos. This self-proclaimed “supervillain of the Internet” and reckless provocateur at Breitbart News does not discuss or exchange differing viewpoints with the audience; he simply spews incendiary and extremely offensive vitriol (a.k.a. ‘hate speech’) to stir up his base of bigoted, like-minded haters.  Two weeks ago on Friday, January 20th, the University of Washington in Seattle capped off its “MLK Week 2017“–in honor of Martin Luther King, Jr.–by holding a discussion with Kathleen Cleaver, Civil Rights activist and African American law professor, at the Kelly Ethnic Culture Center. In 1967, Cleaver was the first woman to join the Central Committee of the Black Panther Party. Juxtaposed to this “signature event”, which was cosponsored by Seattle Office for Civil Rights ‘Race and Social Justice Initiative’, was a speech by Yiannopoulos held at the same start time just 1,600 feet (500 meters) away at Kane Hall. UW College Republicans received official approval to invite this overt misogynist, racist, and homophobe (ironic given he is an openly gay man). Just the day before, he was scheduled to speak at Washington State University in Pullman. WSU cancelled the speech, not due to the outrage and protest of his hateful rhetoric; it was because of inclement weather.

 

If this hatemonger is so verbally abusive, why do universities and colleges allow him to speak at their halls and auditoriums? What are the responsibilities of an institution in letting a controversial figure speak publicly, whose beliefs are based prominently if not solely on hatred and antagonism? What are the vetting criteria and discretion of guest speakers in regards to the guiding principles and restrictions pertaining to ‘free speech’ under the First Amendment? With regards to public safety, what is the justification of allowing harmful and inflammatory speech, especially in light of a current climate of divisiveness and hostility?

 

There is no definitive answer, at least not one that has been unambiguously defined under the First Amendment, or unanimously agreed upon by the Supreme Court of the United States. You would have to look at individual court decisions to determine which cases ruled in favor of or against the use of ‘hateful speech’. Here is an excerpt of the U.S. Constitution First Amendment ‘Permissible Restrictions on Expression‘:

 

Fighting words—defined as insults of the kind likely to provoke a physical fight—may also be punished, though general commentary on political, religious, or social matters may not be punished, even if some people are so upset by it that they want to attack the speaker. Personalized threats of illegal conduct, such as death threats, may also be punished.

No exception exists for so-called hate speech. Racist threats are unprotected by the First Amendment alongside other threats, and personally addressed racist insults might be punishable alongside other fighting words. But such speech may not be specially punished because it is racist, sexist, antigay, or hostile to some religion.

 

I have not studied law—let alone Constitutional law. As a layperson, my understanding and interpretation of the First Amendment is that ‘hate speech’ is not explicitly or implicitly defined. The phrase “might be punishable” under the ‘Permissible Restrictions on Expression’ gives latitude to “so-called hate speech”. Consequently, persons and groups can speak publicly about their superiority or denigrate another group’s race, sexual or gender orientation, political affiliation, or religion so long as it does not incite violence or threaten the livelihood of people.

 

Erik Tucker, who covers the Justice Department for The Associated Press, wrote this piece on the not-so clear delineation between ‘free speech’ and ‘hate speech’ as it pertains to how federal law defines ‘hate crimes’: “How federal law draws a line between free speech and hate crimes“. Searching the web, you are more likely to find an article like the one by Eugene Volokh which explains why “hate speech” is permissible under the First Amendment: “No, there’s no “hate speech” exception to the First Amendment“. If hate speech was clearly defined and deemed unlawful then the former Republican nominee and current U.S. President would be guilty of engaging in hateful speech and incendiary tweets many times over.

 

 

A week following the right-wing provocateur’s speech at UW, host of Seattle’s KUOW ‘Week in Review’, Bill Radke, brought up the controversy on the Friday, January 27th show with guest panel: Hanna Brooks Olsen, Seattle writer/feminist; Randy Pepple, Republican strategist; and Seattle Council Member Lorena Gonzalez. The debate about ‘free speech’ versus ‘hate speech’ begins at 18:30 into the show, but it’s worth listening to the full 53-minute podcast “This week we’re rehashing the first days of Trump’s presidency“.

 

Upon playing a clip of the hateful speech at Kane Hall, Radke started by asking Olsen if the University of Washington “should have allowed this man to speak.” The crux of Olsen’s argument for why UW should have cancelled the event is because “it’s a false equivalency to say ‘we allow free speech on both sides’ when one [side] is demonstratively hate speech.” Olsen added “there’s a difference between things I disagree with, and things that are actively hurtful. And things that create an unsafe space on campus.” When Radke argued that “Milo Yiannopoulos would say it’s not actively hurtful to say obnoxious tired jokes,” Olsen responded: “Telling women to kill themselves is actively hurtful.” [Notwithstanding the assertion of telling women to kill themselves, there are many other extremely misogynistic, racist and abhorrent things he’s written (on the conservative fake news site of Breitbart), and tweeted–so offensive, in fact, that Twitter permanently banned him. Here is a sample of what went on at Kane Hall.]

 

It was the Council Member’s turn to give her perspective. CM Gonzalez, who is trained in Constitutional law and as a Civil Rights lawyer, urged to “look at the First Amendment with the understanding and context that there are restrictions. It’s not an unfettered right to free speech.” She also raised the concern “about whether the University of Washington went through the rigor it should have in its First Amendment evaluation of this particular event.” With regards to public safety CM Gonzalez offered “Your tactical response in that environment has to be commensurate with that level of heat and passion that is coming from both sides.”

 

When Radke asked if his “speech was too threatening to be allowed”, CM Gonzalez did not go as far as Olsen in saying UW should have prohibited him from speaking, but she went on to explain “If… you know what the contours and the depth and the significance and the weight of that speech is going to be then you, as a public institution, have a responsibility to make sure that everybody is safe. Not just the people who are delivering the speech, but also the people who are there to protest the speech.” Gonzalez thought “the mark [with regards to the university’s public safety preparedness] was not met.” [Note: There was a large presence of protesters at Red Square, outside Kane Hall. One of the protesters got into a heated altercation with a Trump supporter, who reportedly was trying to get in to see the sold-out speech. During the scuffle, the Trump supporter shot the protester.]

 

Radke asked the Republican strategist his thoughts on the topic. Repple thinks Yiannopoulos is “obnoxious and stupid”, but he does not feel his contemptible and vile rhetoric should be restrained. He basically said ‘it’s only hurtful if you allow it to hurt you’.  Repple’s solution to protesting ‘free speech’ that you don’t agree with is to “vote with your feet. Don’t go [to the event].” In other words, he thinks we should dismiss callous and hateful speeches as nothing more than inane and distasteful talk, whether or not it is directed at us. And if we let it affect us–if we let it get under our skin–then it is our fault for being fragile and insensitive. In Repple’s mind, the verbal offender has no accountability for the vicious things he says. Moreover, he thinks we should demonstrate our First Amendment right to protest by ignoring the offensive antagonist and staying home. It is an absurd and dismissive argument for allowing ‘hate speech’.

 

Putting Milo’s harmful and irresponsible venom into perspective: Yiannopoulos is so extremely racist, misogynistic, xenophobic, transphobic and homophobic that the Twittersphere gods could no longer tolerate his hateful and reckless tweets so they permanently revoked his Twitter license. Yet notorious Islamic hater, Pamela Geller, is allowed to espouse her unbridled anti-Islamic propaganda in the Twittersphere via her verified Twitter account.

 

So what is ‘hate speech’? It doesn’t just offend a person or group; it is deep-seeded antagonistic hostility consistently expressed and aimed at a persons’ race, gender, lifestyle, religion, and/or ideology. It is not just the targeted venom and weight of a verbal assault; it is a repetitiveness of a maliciously sharp-tongued attack –no matter whether explicit harm is intended or not. Words–like actions–have consequences. Cyberbullying is just as harmful as bullying. And psychological violence is as destructive as physical violence.

 

To say ‘hate speech’ is free speech’ is no different from claiming ‘cancer cells‘ are ‘normal cells’. Why? Because early signs of cancer, when left unchecked, become tumors–often malignant. And untreated cancer–especially aggressive forms–eventually kills the patient. Unfettered hate speech will proliferate and spread like cancer. However, illnesses and diseases do not always manifest into cancer; and combative dialogue does not always escalate into hate speech. The empowerment and self-regulation of social media, cloaked in anonymity, beckons a closer look at the diagnosis and accountability of hate speech. Part of the solution in curtailing hurtful speech is to be more civil, open-minded, and accepting of our differences. Is that so difficult?