Tag: Hate speech

Free Speech and Stochastic Terrorrism

Howard Dean has been saying some remarkably dumb things about free speech this week. I can’t embed his tweets (his Twitter staff blocked me for some very low-grade C-level snark) but it essentially amounts to there being no right to “hate speech”.

You can read Mataconis above and the link therein to Volokh who are experts in the legal history. They point out chapter and verse where Dean has it wrong.

The idea that so-called ‘hate speech,” a term which is incapable of being adequately defined objectively and seems to depend entirely on the subjective reactions of listeners, is not protected by the First Amendment goes against the entire history of the First Amendment itself as well as numerous landmark Court decisions that have put the definition of ‘freedom of speech’ to the test. One of the most famous of those, or course, was National Socialist Party Of America v. Village of Skokie, a 1972 case that involved an effort by a predominantly Jewish Chicago suburb’s efforts to block a group of Nazis from staging a march through the town. In that case, the Illinois Supreme Court, acting after a reversal of an injunction against the march issued by the United States Supreme Court, ruled that the use of a swastika in the march was precisely the kind of symbolic speech protected by the First Amendment and that the government could not enact a prior restraint against such speech just based on the fear that it could provoke a violent response from on-lookers. More recently, in Snyder v. Phelps, the Supreme Court set aside a civil judgment issued by a jury in Maryland against the Westboro Baptist Church in favor of the father of a fallen Marine whose funeral was protested by Westboro with its all-too-familiar signs and rhetoric. In its ruling, the Court held that the fact that Westboro’s rhetoric was highly offensive and hateful was not, in and of itself sufficient reason to exempt it from the protection of the First Amendment. In these and other cases, the Supreme Court has made clear that the mere fact that speech is offensive is not, in and of itself, sufficient justification for banning it or punishing those who might utter it in either criminal or civil Court.

Proponents of hate speech bans argue that such speech is, in fact, a form of violence. But this argument has gotten very far since most people, rightly, regard it as obscene to equate speech with violence. They have also tried to argue that hate speech constitutes “incitement”. But Volokh gets into this:

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct — i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future. But these are very narrow exceptions. Dean’s post came in response to a Steven Greenhouse tweet saying, “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building”; but if Dean meant that such speech by Coulter is constitutionally unprotected, he’s wrong. Indeed, even if Coulter was speaking seriously (which I doubt), such speech isn’t unprotected incitement, because it isn’t intended to promote imminent illegal conduct. Compare, e.g., Rankin v. McPherson (1987), which upheld the right to say, after President Ronald Reagan was wounded in an assassination attempt, “If they go for him again, I hope they get him” — and that was in a case involving a government employee being fired for her speech; the First Amendment offers even stronger protection to ordinary citizens whose speech is more directly restricted by the government.

Returning to bigoted speech, which is what most people use “hate speech” to mean, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

There is one twist on this concept of incitement that I wanted to get into, however. One idea that has gained some credence on the Left in recent years is that even if “hate speech” doesn’t directly incite immediate violence, it can constitute stochastic terrorism. The idea of stochastic terrorism is that Right Wing politicians (and only Right Wing politicians) don’t actually incite violence directly but use charged rhetoric hoping that, in a nation of three hundred million people, this will motivate someone to engage in violence. It is most often applied to abortion foes, with critics claiming their cries of “murder” are deliberately designed to make people run out an shoot abortion clinicians (because, apparently, no one could honestly believe in their heart that abortion is murder). But we’ve seen it in other contexts as well: the Murrah Bombing being blamed on talk radio; the Giffords shooting being blamed on Sarah Palin; a census worker’s suicide being falsely attributed as homicide and blamed on census opponents. Hell, there were people who blamed the Kennedy assassination on his right-wing critics.

This theory of stochastic terrorism is, to put it mildly, manure. It is a theory designed but with one purpose: to tar the speech of people the theorists disagree with and, hopefully, silence them. And it is very easily proven.

Many years ago, talk show host Neal Boortz had a quiz on his website asking readers to figure out if passages about the environment were from Algore’s Earth in the Balance or the Unabomber’s manifesto. It was actually kind of difficult. They used the same language, the same extreme rhetoric, the same dire claims that the Earth was doomed. Yet no one would accuse Algore of “stochastic terrorism” because of the Unabomber (or any other eco-terrorist).

For the last two years, a large fraction of the Left has been calling Trump a fascist and comparing him to Hitler. If someone were to try, God forbid, to assassinate Trump, would they all be guilty of stochastic terrorism?

“Ah”, you might say, “But the difference is that this Left Wing rhetoric is right. The Earth is in danger. Trump is a fascist.”. Well, Islamic terrorism is a danger. Millions of potential human lives have been extinguished by abortion. Why is the danger you fear real and the danger others fear fake?

It is antithetical to the very concept of this nation for people to be afraid to using strong language when they fear that something very wrong is being done. I may not agree with them. And I will frequently think they are being needlessly hysterical. But if you think abortion is murder, you should be able to say so. If you think Trump is a fascist, you should be able to say so. Yes, there is always a risk that someone will take your words to heart and do something awful. But we can not let our political dialogue be set by a fear of maniacs. We can not allow a “gunman’s veto” on free speech. This is why the Courts have taken a precise view of what constitutes incitement. And it’s why they should continue to do so.

It’s strange for me to say this because I think that extreme rhetoric is a problem in American politics and that people do not need to back off and listen to each other. Debates about healthcare, taxes, terrorism, war and spending would be a lot better if they weren’t conducted in apocalyptic terms. But good manners, a sense of perspective and respectful dialogue can not be enforced with moral threats. And good dialogue does not begin with restrictions on free speech.

On Hate Speech

Ann Althouse riffs off of Kathy Griffin’s tweet on the Robertson issue with some thoughts about hate speech. I’ll pull a long quote here:

Hate speech similarly affects the minds of the members of the group against whom hate has been expressed, and it can produce the same kind of fear of violence that is caused by a report of a hate crime. Now, there is hate speech and there is hate speech. Think of the most virulent hate speech, and you should see how powerful it is, how justified and painful the fear is. In extreme cases, members of the targeted group should take alarm and even flee in terror. A purveyor of hate speech need not commit an act of violence to create a fear of violence. He might inspire others to commit those acts of violence, and even if he doesn’t, the threat of violence alone has an effect. False reports of hate speech work the same harm.

In the set of statements that could be characterized as hate speech, what Phil Robertson said was not that bad. Many would argue for a narrow definition of hate speech such that what Phil Robertson said would not be in the set at all. Defining the category very broadly is a political and rhetorical move, and it isn’t always effective. At some point — and perhaps with Robertson, we’ve hit that point — you’re being too repressive about what can be said on issues about which decent people are still debating, and it would be better to hear each other out and remain on speaking terms.

There is more good to be achieved by talking to each other and not shunning than by treating another human being as toxic. In fact, to treat another person as toxic is to become hateful yourself. It’s better to let the conversation flow, and if you really think your ideas are good, why switch to other tactics? What’s the emergency? Especially when your cause — like gay rights — is for greater human freedom, you ought to resist becoming a force of repression.

Since making his controversial remark, Phil Robertson has put out the message that as a Christian he loves everyone. Love speech is the opposite of hate speech, and it has so much more to do with Christianity than the reviling of sin in the earlier remark. He wants to speak against sin, but it’s a problem when you aim a remark at a kind of person who has, over the years — over the millennia — felt a threat of violence and the burden of ostracism. I think Robertson knows that.

Hate speech is an actual thing. I don’t think anyone would doubt that a KKK rally is meant to threaten, intimidate and frighten others. But I think, in the discussion of what does and does not constitute hate speech, a respect for open dialogue, mutual understanding and a robust debate requires us to draw the line as narrowly as possible.

If Robertson had said he thought gays should get the Matthew Shepherd treatment that would be hate speech (putting aside that the Shepherd killing may have had more to do with drugs than gayness). But he didn’t. He expressed a moral view that homosexuality is wrong (a view about half of Americans hold) and that he wishes that gays, like all sinners, would turn away from their sin. It’s simply not comparable to what, to pick an example almost at random, Alec Baldwin said about Henry Hyde. Or the insults he hurled at a gay man. In both cases, Baldwin was shouting violent threats at someone he didn’t like. That’s not even in the same ballpark.

Unfortunately, there is an effort in this country, especially from the Left, to define the bounds of “hate speech” as broadly as possible. I have even heard radio talk show hosts accused of hate speech because they have the temerity to vigorously criticize Democrats. Of course, the Left are never guilty of hate speech. No, sir. When they call Phil Robertson a bigot and a homophobe, that’s not hate. When they insult his looks, his family, his faith and his show, that’s not hate. When they compared Bush to Hitler, that wasn’t hate. When they mocked Romney for his temple garments, that wasn’t hate.

Needless to say, I oppose all attempts to outlaw hate speech. And I think speech codes on campuses and elsewhere are shameful. Your right to free speech does not mean your employer can’t fire you for saying something that embarrasses them. Or that you can’t be prosecuted if you provoke other people to violence. But I find the idea of any kind or prior restraint repulsive, especially when we’re talking about a moral debate we’re still having. That’s not “creating respect” or “stopping hate”. That’s trying to make the other side shut up.

There are tens of millions of people in this country who have changed their opinions about gays and gay rights. They didn’t change their minds because they were told to shut up. They did it because people debated them, talked to them, persuaded them. They did it because they got to know gay people as friends, family members and co-workers. They did it because, at bottom, they were decent reasonable human beings. They opposed gay rights not because of “hate” but because of their love of our traditional culture and values. When they are convinced that something is not a threat to that, they tend to come around. I know this because it’s a journey I myself went on 20 years ago when I was in college. That didn’t happen because of speech codes.