Chief Justice Roberts was right when he wrote in yesterday’s opinion protecting the speech of protestors at a military funeral that “debate on public issues should be robust, uninhibited and wide-open.” However, the particular speech in this case that he and the seven concurring justices ruled was protected by the 1st Amendment consisted of, “God Hates Fags,” “God Hates Your Tears,” and “Thank God for Dead Soldiers.”
As Justice Alito said in his lone dissent, these words are more like fighting words … a “vicious, verbal assault … brutalizing innocent victims.” For once I agree with Justice Alito.
The United States has a long history of upholding the most heinous forms of speech, so long as that speech does not directly incite violence or otherwise endanger people. Most of the countries of Europe and Canada, on the other hand, have laws that criminalize hate speech.
Why the difference? Part of the difference stems from Europe’s experience with the Holocaust. They understand more clearly the evil that hate speech can bring about.
But mostly the reason lies with the interpretation of our 1st Amendment, which prohibits any laws that infringe on the freedom of speech. Absent a “clear and present danger,” the courts have generally held that even the most vile and hateful speech is protected.
So the result, for example, is that while it is illegal to discriminate against someone on the basis of race, religion, etc., it is not against the law to encourage hatred against African-Americans, Jews, or any other group.
The question that must be asked is, why is discrimination prohibited but hate speech allowed? There is no rational answer. The answer is historical … the right of free speech has long been a sacred cow of American constitutional jurisprudence.
But hate speech does not foster reasoned debate on issues of national import. Rather it fosters just the opposite. It fosters at a minimum highly emotional positions that actually hinder reasoned debate, and at worst it fosters an atmosphere of fear that can lead to violence. Additionally, it tears apart our social fabric. Thus, even absent a “clear and present danger,” there is no reason to protect such speech.
The argument against prohibiting such speech is that it presents a “slippery slope.” Once you allow for one type of speech to be prohibited, where do you draw the line?
But the right already is deemed not to be absolute. Thus the question becomes whether such speech has value … “redeeming social value” in the context of the obscenity cases … to America’s marketplace of ideas, to the furtherance of rational discourse.
The answer is, “no.” We prohibit discrimination, we prohibit hate crimes, we should prohibit hate speech.
