Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the Newhouse School at Syracuse University.
The answer to offensive speech is more speech. The “more speech” doctrine is part of our democratic view of how government regulates (or does not regulate) speech.
At a time when there are more ways to communicate to more people, offensive speech, so-called hate speech, is in full bloom. This has not only been part of the national political landscape but also recently in our own backyard.
As we confront the harsh reality that there is plenty of discord, divisiveness and hate in the world around us, the First Amendment ensures that much of this offensive speech is not restrained, punished or otherwise censored by the government.
Though hate speech is protected under the First Amendment, that only means the government cannot prosecute or punish speakers who spew offensive, hateful or vile speech. Yes, we have our First Amendment rights to say awful, even hurtful things. Does that mean we should say all this awful stuff? It depends on the venue and it depends on dealing with the reaction.
As much as the government cannot punish a hateful or offensive speaker, the private sector can, and sometimes does. A private employer may discharge or punish an employee for offensive speech. A private school or university can adopt standards on speech issues that would violate a speaker’s First Amendment rights had it been set by a government entity.
A state penal code, like New York’s, can consider bias or racist motives as an aggravating factor to crimes. And, there is a range of criminal activity that may involve elements of speech that would not be protected under the First Amendment, such as graffiti, speech inciting a breach of the peace or a true threat.
Though the Supreme Court has never adequately defined hate speech or categorically prohibited it, the court has come close to guiding us in cases involving true threats and fighting words. True threats are threats that specifically target an individual or group for violence or harm. Fighting words are words that can elicit only a violent response. These narrow categories leave many invoking the terms as a proxy for hate speech. But both require specific statements in a context that could lead to a specific act of violence.
The standard for fighting words largely comes from a 1942 Supreme Court decision where the court wrote that “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality.”
As clear as the statement is, it is equally vague. The language at issue in the case involved a religious pamphleteer calling an arresting police officer a “racketeer” and a “damned Fascist.”
In 1942, those specific words may have carried more weight. The concerns were just as ripe and the country’s and courts’ acceptance of offensive, anti-government and even hateful speech was different. Today, as we wrestle with multicultural issues and deep political divides, hateful speech is finding refuge not only in social media, but tacit approval when officials at the very top refuse to condemn it or even propagate tropes themselves. While social media and the internet has fueled some of the vitriol, it has also expanded our marketplace of ideas.
As much as social media fuels hate speech and gives a global platform to speakers who, decades earlier, would have been a muttering curmudgeon, it has also served to expose haters and also provides a platform to answer speech.
These are difficult issues to reconcile. Even the ACLU, long a champion of all speech, including famously defending the Nazis who wanted to march through Skokie, Illinois, has stepped back from defending some contemporary hate speakers.
It might be difficult to find value in hate speech. Analyzing it in the abstract requires separation from the words. Our knee-jerk response is to censor, punish or even physically retaliate against the speaker, which is an inherently human response. Nobody wants to be on the receiving end of hateful or hurtful content. But such responses also minimize the value of the competition of ideas and the vital role of counter-speech.
Counter-speech and protests can lead to exposing ignorance and a public discussion of issues can influence public policy.
In Snyder v. Phelps (2011), Chief Justice John Roberts wrote: “Speech is a powerful tool. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. [W]e cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The offensive and potentially hurtful messages we have confronted at Syracuse University in the past months has actually fueled protests, community-wide discussions, classroom dialogues and a wide range of counter-speech. These discussions and counter speech serve as an educational opportunity, and possibly a spur of change of some public policy. And, much of this was fueled by free, independent media.
It may be difficult to rationalize a silver lining from hateful messages, but perhaps there is one.
In her recent book, “Hate: Why We Should Resist It With Free Speech, Not Censorship,” Nadine Strossen, the former president of the ACLU and the daughter of a Holocaust survivor, fiercely defends free speech, particularly hate speech. Strossen concludes: “The progress we already have made – through more speech, not less – should encourage us to stay the course. All of us must exercise what is the most essential right of all, for promoting the vital causes: the right not to remain silent.”
In other words, more speech.
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