Freedom of expression in all its forms, no matter what is said and to whom, is an absolutist argument for the best possible marketplace of ideas. While free speech is incredibly important for a functioning democracy, the protection of hate speech not only perpetuates discrimination, but can also incite violence or lessen an individual’s dignity.
It may seem quite extreme to modify parts of the First Amendment, but there have been multiple court cases in the past that have set precedents for limiting speech; for example, falsely shouting “fire” in a crowded theater is not protected speech because of the clear and present danger that would result from that statement. But could the same chaos erupt from yelling hateful words targeted at people’s culture, race, religion, or sexual orientation? Many would argue that it most definitely could. If there is any basis to restrict hate speech, it would have to be on the grounds that it’s offensive beyond any reasonable doubt, which many instances of hate speech prove to be.
Logically, and in constitutional tradition, the freedom of speech outlined in our First Amendment rights is not going to change. Even though it’s been contested time and time again, no ultimate change has influenced new laws that diminish types of speech. Although this is true, it is also valuable to realize that the First Amendment does have its limitations and even some exceptions; statements that have been labeled as obscene, incitement, perjurious, defamatory, or simply offensive have all had cases brought to court in which the majority of Supreme Court justices have ruled in favor of those fighting for limitations on speech.
Chaplinsky v. New Hampshire, for example, dealt with the use of “fighting words,” and made the decision that any statement that is obscene, profane, libelous, insulting, or said with the intention of inciting hatred and violence and causing an immediate breach of the peace, is not protected and is a limitation of the First Amendment. Although that definition is up for interpretation and would have to face the jurisdiction of the court, it can easily be seen that hate speech fits neatly within the definition of what “fighting words” are.
This specific precedent, among others, has already established exceptions to the traditional freedom of speech mindset, so why is there no check on hate speech in the United States? Certainly statements that directly attack a person or group on the basis of either race, religion, ethnicity, sexual orientation, disability, gender, or a combination of these should be means for an evaluation of legality, just as issues of incitement, defamation, libel, etc. are debated in a court setting. With the knowledge that other types of speech have been limited in the past, it is evident that harmful speech that poses an imminent danger should be allowed the same kind of consideration.
However, many argue that hate speech will be drowned out through the work of the marketplace of ideas. This theory is quite flawed in practice, as inciteful speech will not always magically outweigh the harmful. Although an exact description of hate speech would take time to create and would include a trial and error process, it would be beneficial for all people and for the advancement of the United States.
Hate speech can quickly and unexpectedly turn into hate crimes, one of which occurred early this summer on a train in Oregon when a man shouted discriminatory words toward two Muslim women. The three men who told him to stop were stabbed, the perpetrator showed no remorse, and the incident left two dead. This is only one example, and a fine line worth avoiding at all costs. If our market of ideas continues to go unregulated, there is no telling what could ensue. When all speech is protected, it pushes the issue on the people to figure out what is allowed in the social contract and what is not. This causes misconstrued ideas among different groups of people about what is considered hateful, instead of relying on the government to aid in describing what exactly hate speech entails.
This way of thinking is practiced in some European countries, and has been effective in ensuring that the most powerful people in the government, business, and entertainment sectors do not influence the average person’s thoughts. Europeans’ intolerance of hateful speech and their steps to criminalize such statements or symbols stem from their history of dealing with Nazism. Their nations have endured the consequences of a failed marketplace of ideas, and they are smart for turning to hate speech regulation by the government to ensure that the tragedies will not be repeated on any scale. In the U.S., meanwhile, the narrative is noticeably different, shown specifically and most recently in Charlottesville, Virginia. This tragedy was heightened by hate speech from neo-Nazis and white supremacists, who marched that day and were later mentioned by President Trump himself when he said that there were “very fine people” on both sides of this particular battle.
The blurred lines that differ from person to person are often based on contradicting ideas of right and wrong dependent on one’s personal experience. No matter the side, both freedom of speech absolutists and progressives pushing for amendment reform should be able to recognize, in light of this recent crisis, that it may be best for us not to be free to be hateful and cause members of traditionally marginalized groups to suffer.