April 10, 2018 | Student Affairs

By Philip Pecorinomegaphone held by a protester

Hate Speech is “speech that is intended to insult, offend, or intimidate a person because of some trait (as race, religion, sexual orientation, national origin, or disability)”.   

Such speech upsets many but Hate Speech is speech and as such to be accorded all the protections as for any other forms of speech.  The Constitution’s First Amendment is not a luxury but a necessity for the support of our nation’s Constitution, and the welfare and opportunities it provides.

Fire and Other False Alarms
However heinous Hate Speech may be, it is not to be denied, limited, or punished unless or until such speech becomes an action directly threatening the life and wellbeing of individuals or groups. The court which is the defender of the Constitution admits to only the narrowest range of speech turned to action as speech that is to be denied the protection of the constitution.  Such speech has been identified by the Supreme Court when Justice Oliver Wendell Holmes in Schenck v. United States (1919) declared that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Beyond this he stated that “The question is in every case whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The other limitations on freedom of speech involve knowingly making false statements of fact, such as in libel, fraud, perjury, and false invasion of privacy. In addition there is the Stolen Valor Act 2013, which makes “fraudulent claims about military service subject to a fine, imprisonment or both for an individual who, with intent to obtain money, property, or other tangible benefit, fraudulently holds himself or herself out to be a recipient of” some formal recognition for military service as authorized by the Congress.

Challenges to Free Speech: A Bibliography
The First Amendment has faced a long history of challenges which Floyd Abrams provides in The Soul of the First Amendment. He describes the need to protect free speech, privacy and national security and the need in a democracy to regulate money in politics and the threats posed by hate speech. Several books have also appeared studying questions raised by free speech on campus: Speak Freely: Why Universities Must Defend Free Speech , by Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University; Free Speech on Campus by Erwin Chemerinsky, who wrote the book as law dean at Irvine and is now in that role at the University of California, Berkeley; and Howard Gillman, chancellor and professor of law, political science and history at Irvine; Free Speech on Campus , by Sigal R. Ben-Porath, professor of education, political science and philosophy at the University of Pennsylvania; and Safe Spaces, Brave Spaces: Diversity and Free Expression in Education, by John Palfrey, head of school at Phillips Academy, Andover, and formerly professor and vice dean at Harvard Law School.

Defending their Right to Say It
While noting the real causes of concern for those who are protesting speakers and calling for the removal of those whose speech they find disturbing, insulting and even threatening there is no cause for using pejorative descriptions of those calling for restriction on speech.  College campuses can find ways to protect the community from actual physical assaults and battles while at the same time providing space and time for vigorous exchange of ideas and criticisms of positions and what should remain verbal battles in the premier forum for ideas. “We bind ourselves to an impoverished choice set if we believe that we can either punish speech or validate it,” writes Frederick M. Lawrence, secretary and CEO of Phi Beta Kappa.

Academic Freedom
Academic Freedom is a particular instance of freedom of speech and granted to the Academy under law as recognized in the first amendment in order to enable faculty to act upon academic judgment free of duress and interventions from entities outside of the Academy.  To realize the basic mission of the university there needs to be freedom of inquiry and that cannot exist without freedom of speech and with it a value placed on intellectual diversity and tolerance for disagreement as part of the process of critical inquiry.  The university cannot advance human knowledge without a consideration of all points of view.  Neither can a university advance communicating knowledge without freedom of expression.

Where would our progressives be, who hold for the values of equality and justice for all if they could not advance their causes using various forms of expression that espouse their causes?  Whatever may be claimed as advances for humanity or for advances for Americans could not have occurred without the exercise of freedom of speech granted to the people by the people. To now speak of limitations on speech due to the impact speech may have as others is a severe threat to the freedom that is needed to advance all social reforms and human advance.

Hate Speech: Acceptable Harm?
Hate Speech causes harm to others. Yet harm alone is not the legal basis for action against speakers or speech. In The Contours of Free Expression on Campus: Free Speech, Academic Freedom, and Civility, Frederick Lawrence has argued that intent in the main factor that should be considered.  “Punishment is only appropriate…when the purpose of the behavior is to instill fear of imminent serious harm.” Although there is mounting evidence of such harms, such evidence is a long way from popular acceptance, and so will not likely be grounds for legal action until, for example, the Physiological & Psychological Impact of Racism and Discrimination for African-Americans are as widely recognized as the dangers of second-hand smoke.

A Slippery Slope on Campus
Some signs of the dangers in considering limitations on speech have already emerged in the appearance of actions to limit speech not thought to evidence the appropriate “tone” according to would be censors of freedom of speech.  A new Gallup/Knight Foundation report on student attitudes towards freedom of speech indicates that students may now value a diverse and inclusive environment over freedom of speech.

This is an ominous note of concern for those who fear that to which the suppression of speech often leads.

Hate Speech should be seen as a price paid for the preservation of a freedom necessary for the preservation and advance in all human freedoms.  Hate Speech identifies those who speak It is a great benefit to identify those who speak against the rights of others and against their status as humans.  Knowing who they are, having them out in the open presents opportunities to speak back to them in a public forum, rather than allowing them to  fester and grow beneath the surface.. Freedom of speech cannot be preserved when actions limiting its exercise are justified by subjective evaluations.

Civility and Free Speech: Better Pedagogy, Too
This is particularly and acutely so when the standard for repression of speech becomes judgments over what is “civil” and of proper “tone”. Emily Lawsin, a senior lecturer at Michigan, accuses her college administration of “tone policing”: devaluing a message by focusing on how it was delivered.  In Lessons in Censorship,  Catherine Ross, a professor at the George Washington University Law School argues that civility is not a self-evident concept, but rather can used to justify punishment in the name of a social or political status quo.  (Consider the speech of those who worked for civil rights and women’s liberation and many other causes that led to social advance.   Racists and misogynists might well have deemed their speech as hateful.)

In Does the speech of students warrant the same First Amendment protections enjoyed by adults?, Joan Wallach Scott, professor emerita at the Institute for Advanced Study’s School of Social Science, and an adjunct professor of history at the Graduate Center, CUNY, argues that “…A democratic pedagogy must go beyond a consideration of students’ individual rights. It requires an awareness not only of the expressive power of ideas, but of the larger historical, social, and political contexts within which ideas are formed and take effect. This critical pedagogy is not neutral in its outlook; nor is it totalitarian. Its ethos is not that anything goes, but that ideas have consequences that need to be subjected to critical interrogation—not in the interests of conformity or normative regulation, but in order to guarantee the very future of democracy…”

What then is to be the Hate Speech that would justify restriction?  Is such judgment to be left with those who currently hold power to legislate and then adjudicate violations of the restrictions enacted by the presently powerful against those less powerful and out of favor?  Hopefully not.  It is a set of circumstances seldom seen elsewhere that have given those who live under the US Constitution the protections afforded to minorities against the will of majorities. Hate Speech, even when uttered by a majority, is to be protected for the sake of the minority who would be targeted by such speech but are at the same time protected from it by the same Constitution, not by the silencing of voices but by the protection of all voices.

Philip Pecorino is a professor of Philosophy at Queensborough Community College, where he chairs the Faculty Executive Committee, and a member of the UFS Executive Committee.

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 Image: By Fibonacci Blue from Minnesota, CC BY 2.0