Power over hate speech comes by ignoring it

Staff Report//September 18, 2017

In opposition to Andrew Blackwell’s Aug. 28 commentary, “It’s time to reconsider protection for hate speech,” I offer two alternative responses and then a brief commentary.

Alternative response number one

Mr. Blackwell argues that we should reconsider the “clear and present danger plus imminence” test by which we measure whether hate speech may be banned. He asserts that because in the real world that test is virtually impossible to meet, “hate speech flows virtually unrestricted in the United States.”

He further ties the hate speech of Charlottesville to its accompanying violence, and he suggests that restrictions on such hate speech will reduce violence and so are worthwhile.

He further argues that common sense restrictions on hate speech will not break new legal ground and in his final sentence he concludes that “we cannot allow that freedom to eclipse the right of other Americans to be safe from the violence hate speech produces.”

I begin my response with the history of the First Amendment as explained by Professor Akhil Reed Amar in “The Bill of Rights.” Professor Amar states that the original intent of the First Amendment was to protect the people from censorship by Congress.

This is transparent in the language “Congress shall make no law…restricting the freedom of speech…” He then says the sensibility of that concern was vindicated when the Federalists controlled the Presidency and Congress and they enacted the Alien and Sedition Acts which prohibited criticism of the government.

We were lucky that in the subsequent election of 1800 the citizens took matters into their own hands and pitched out of office those very Federalists. Amar then states that only in more recent times has the First Amendment’s “gravity…shifted to protection of unpopular, minority speech.”

While I agree with Mr. Blackwell that the speech in Charlottesville can reasonably be defined as “hate speech” and I acknowledge that the Charlottesville speech and similar speech have in recent days been accompanied by violence, I disagree with him on the cost benefit analysis.

It is my belief that the violence which accompanies such speech is a cost which we must bear in exchange for the greater benefit of avoiding the risk that today’s prohibited hate speech will be tomorrow’s prohibited dissenting criticism of government speech.

In other words, if we prohibit hate speech we invite another round of legislation along the lines of the Alien and Sedition Acts. This time the people might not be so wise as to throw out of office the elected officials who passed such nonsense.

In current days the slippery slope is not just an academic concern.

I also quarrel with Mr. Blackwell because I believe his concern that the “clear and present danger plus imminence standard” is virtually impossible to meet is first an overstatement and second not a material concern.

As to overstatement we see restrictions on speech pass muster all the time, the easy example being the prohibition on words directly calling for violence.

As to materiality the better approach of sensible citizens is to ignore hate speech.

The benefit of ignoring hate speech can be seen in microcosm in our parents’ admonitions to us to ignore bullies calling us names as we went off to elementary school, and in macrocosm in the power which ignoring speeches and parades by modern day Nazis and Marxists will actually have over those people.

Most of these knuckleheads are spewing their rot just to get attention, and ignoring them will undercut them more effectively than scorning them or beating them up.

Thus, while I share Mr. Blackwell’s concerns about hate speech inviting violence, upon consideration I suggest our nation is better off keeping the “clear and present danger plus imminence” test and just ignoring hate speech.

Alternative response number two

Mr. Blackwell, since you have no idea how this country’s laws work you really don’t even have a right to be here. Why don’t you get on a boat and go back to whatever lame totalitarian loving country you came from. Heaven is by favor; if it were by merit your dog would go in and you would stay out. If your head were an hour glass it could stow an idea, but it would have to do it a grain at a time, not the whole idea at once.

As to my first response I hope most readers will credit it as being at a minimum thoughtful and perhaps maybe even persuasive, but either way a welcome addition to the debate.

As to my second response I presume all readers discount its value to zero, precisely because while I hope it is a decent and even comic example of the use of insults, it is juvenile and has no basis in rationality. (Credit to Mark Twain for the latter two insults.)

I think all but a tiny percentage of citizens are perfectly capable of understanding the difference and responding appropriately.

When citizens do not understand the difference and so think hate speech is sufficiently important as to be worth committing violence to oppose it, we face a cost which is part of the price of a free society.

And I have great confidence that Mr. Blackwell is not on the way to my house to shoot me because I called him names.

As lawyers it falls to us to play a role in the never ending struggle to properly define the parameters of the First Amendment so as to secure the blessings of liberty for ourselves and our posterity. The way to do that, obviously, is by discussion between ourselves and others.

Meanwhile there is value in scorning those who engage in hate speech and we must prosecute those who commit violence against speakers and speech. But our greatest power over hate speech will come from ignoring it.