Regarding "Hate Speech" [View all]

[H2O Man]

“The problem in the world today is not one of ignorance; it’s of people knowing so darned much that just ain’t so.”
-- Mark Twain

Some of the most interesting OP/threads on DU:GD in recent days have focused on “hate speech” versus Amendment 1. It is a societal conflict that rightly demands our attention. As such, I think it deserves a serious review. Perhaps now that emotions have begun to subside, this will be an opportunity to do so.

Most people are somewhat familiar with the Bill of Rights, and perhaps have their strongest beliefs on what Amendment 1 provides for. Obviously, there can be strong disagreements among good people as to the exact interpretation of any of these rights. An obvious example is found in the heated debates of how Amendment 2 applies today.

Likewise, the issues addressed in Amendment 1 can and should be debated and contested on an on-going basis. For the Constitution only has value if it is perceived and experienced as a “living” document -- to be applied to current social circumstances. While the concept of “original intent” has value, it too is open to interpretation. More, the Constitution can be altered, as evidenced by not only the addition of that Bill of Rights, but all of the amendments that have followed.

I find the right-wing view of “original intent” to be a giggle much of the time. Let’s consider the concept of a “free press.” The Founding Fathers could not have imagined a corporate-owned, commercially-controlled news media such as we are subjected to today. The notion of journalists being an elite group, which excluded those who didn’t have a degree in journalism, is silly. Any reading of the “press” from our nation’s early days shows that the journalists resembled nothing if not today’s “bloggers” on the internet.

Attempts to silence, and indeed to punish journalists were resolved in court. This brings us to perhaps the most important point in the understanding of such issues: What does the Constitution of the United States mean? That meaning is defined by Constitutional Law. And that, for better or for worse, is what the federal courts decide at a given time. Primary among the various federal courts is, of course, the Supreme Court.

Although it has been rare historically, the Supreme Court has altered previous decisions, and in some instances, actually reversed earlier precedent. In most instances, these provided examples of the expansion of rights to populations previously excluded. This has been correctly viewed as solid evidence of the Constitution being a living document. In such instances, Supreme Court decisions -- Constitutional Law -- reflect society’s growth beyond the biases, prejudices, and hatreds that have denied rights to various groups of citizens under the guise of local, state, and federal law.

The potential for the Supreme Court to do “good” is unfortunately matched exactly by its potential to do “bad.” Two obvious recent examples come to mind. The first is, of course, when the Supreme Court selected George W. Bush to be president, after he lost the 2000 election to Al Gore. Their decision was not based upon anything in the state or federal laws, nor in the Constitution. Rather, it was an entirely political decision, influenced in part upon the economic interests of several of the Injustices. And the second example was when the Court ruled that corporations are people, endowed with an unlimited right to “free speech.”

The issues involving “hate speech” are not new. By no coincidence, they tend to be most contested when they involve the overlapping issues of free speech, free press, and the right to assemble in public. Indeed, the tensions associated with controversial “speech” -- especially that which is advertised in advance, and involves a public assembly -- is often viewed as a fuse that has the potential to ignite a powder keg. While events such as Martin Luther King’s public protests were consider “at risk” of sparking violent reactions from his enemies, “hate speech” events pose both this potential, and more importantly, the very real possibility of the “hate speech” advocates engaging in violence.

Now, let’s look at a few cases that, at one time or another, defined Constitutional Law as it applies to “hate speech.” Because a critic of mine recently attacked me for writing about progressive-liberal candidates being betrayed by moderate-conservative Democrats in the past 50 years -- why, she demanded, did I limit my essay to 50 years? -- I have decided to expand the period covered here, to 63 years. Should anyone feel an impulse to react with a hateful post, I nonviolently request they first listen to the Beatles’ song, “When I’m 64,” as I believe the solution to many disagreements common to DU:GD are found in the Cosmic Law expressed upon the Sgt. Pepper’s LP.

In the year 1952, the USSC heard an appeal of Beauharnais v. Illinois; the case centered upon a Chicago man’s leaflet that urged white residents to fight the “invasion” of their “neighborhoods and person” by black citizens. The leaflet implied that organized group violence was necessary to ward off black people. In a 5 to 4 decision, the Court ruled that this constituted “hate speech” that caused an unacceptable risk of violence being perpetrated upon people for simply being black.

Now, you or I may have agreed with that decision, or disagreed with it. Either way, however, it was Constitutional Law. As such, it could only be changed by a future USSC decision; such changes might involve a case with very similar issues at stake, or one that appeared very different on the surface. In this instance, many legal scholars believe that a very different case would begin the changes in Constitutional Law as it applies to “hate speech.”

The 1964 case of New York Times v. Sullivan, according to Anthony Lewis’s outstanding “Freedom for the Thought That We Hate” (MJF Books; 2007; page 159) would reverse the “logical premise” of the Beauharnais ruling. In this instance, the USSC “ended the exclusion of libel from the protection of the First Amendment.”

This was followed by the 1969 case of Brandenburg v. Ohio, in which the Court placed severe restrictions upon the possible criminal charges that could result from “hate speech” that targeted people based upon race, religion, or ethnicity. This would serve as the basis for the 1977 ruling by the US Court of Appeals (7th Circuit) involving the repulsive plans by Nazis to “demonstrate” in Skokie, Illinois.

There are numerous other, related cases that define Constitutional Law as it applies to “hate speech.” Because I am attempting to write an essay that will take the average reader less than 50 years to read, I think that the three I’ve mentioned should suffice to show that the Courts’ rulings on “hate speech” have been fluid over the years. Differing circumstances can result in different definitions of Constitutional Law.

Let’s consider what those differing circumstances may involve. In general, the determing factor is not how offensive the “hate speech” may be. Unlike the art of pornography, “hate speech” is not judged upon any measures of socially redeeming value. Indeed, it is society’s willingness to allow the most toxic of hateful expression, that adds value to our culture -- by allowing good people to utterly reject the ideas expressed, without imposing criminal sanctions upon the idiot expressing them.

The potential for restrictions upon “hate speech” are thus found in a more limited area: is that “hate speech” likely to result in an immediate reaction that causes a violent public disruption? Again, such incidents are most likely to involve press, speech, and public assembly. More, it involves not only the potential for a violent response to the hateful group, but also the likelihood of the hate group’s advocates of engaging in violence.

The dynamics in our current culture, while similar in many ways to times past, present a different picture than before. An example of this is, obviously, that instant communications can potentially play a large role in cases involving the press/internet, speech, and the ability to assemble groups of people. But the most troubling aspect, in my opinion, is the quality of too many individuals who sit on the bench in federal courts.

As Vince Bugliosi has pointed out, the public tends to be suspicious of lawyers and politicians, but trusting of judges. A $20 black robe does not elevate the ethical standards of a judge. And there ae several on the USSC who are opposed to a democratic society, who are motivated by money and power, and who are self-righteous snakes. That court has become as much of a corporate lap dog as the mainstream media.

The amount of hatred being communicated today creates a tense atmosphere. There are definitely some who take a perverse pleasure in seeing reports of violent incidents on the news, and who will invest their energy in trying to provoke further violence. “Hate” is, of course, a purely human concept, and its energy force is not found elsewhere in the natural world. Yet, in our culture, we are witnessing the fact that hatred demands existence, in the sense that hateful individuals perpetuate more hatred.

The line between hateful thoughts and hateful actions, including physical violence, is not always clear. The hateful female who promoted the cartoon contest was both attempting to push the boundary, yet remain protected by law. Those who would use this to justify violence are also a destabilizing force in our society. Neither offer anything positive to society in this sense.

It would be wonderful if the federal court system had “the answer.” But a culture that is infected with such high levels of hatred also tends to promote republicans to the federal bench. That fact concerns me, because I do not believe that Antonin Scalia or his ilk would decide a “free speech” case in a manner that would only impact extreme cases. Rather, the current USSC would be far, far more likely to act in a manner that would seriously restrict our rights to a free press, free speech, and the right to assembly in public to voice our disagreements with elected and appointed government officials.

In conclusion, I believe that the best alternative available to us today is to confront “hate” and “hate speech” in a firm, non-violent manner.

Peace,
H2O Man