Is Hate Speech Free Speech?

Is Hate Speech Free Speech?

by Ted Miller

(originally published September 2017 in Tumbleweird)

It was advertised as a Free Speech Rally. They arrived with assault weapons, tear gas, knives, and torches. Were the Charlottesville white supremacists really just protecting their first amendment rights? Or were they spreading hatred and inciting violence? When one of them used his vehicle as a weapon of terror, plowing into a crowd of peaceful counter protesters, killing Heather Heyer and injuring dozens more, was that an expression of protected free speech? Of course not.

The white supremacists, sure in the superiority of their western European race, brandishing swastikas and confederate flags, are a hateful, divisive group. That they want to resurrect the purist, Aryan Nazi fascists that we defeated in war seventy years ago angers me. It should have no place in the country I swore my allegiance to.

But do we have the right to silence them? Should hate speech be protected? Does the first amendment allow us to sow hatred? Should we allow un-American, divisive speech? Who decides?

When the Westboro Baptist Church protests military funerals with their “God Hates Fags” signs, it is disgusting hate speech, but it is protected speech. Football fans may object to Colin Kaepernick taking a knee during the National Anthem, ironically claiming his actions are an insult to the veterans who died for his right to protest, but his protests are constitutional. Even burning the flag is considered a first amendment right.

Speech that we find offensive, distasteful, or abhorrent is still protected speech. The U.S. Supreme Court has upheld that right time and again, most recently in Matal v. Tam this June. Justice Alito wrote that “speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

But not all speech is protected. You can’t yell “fire” in a crowded theatre and cause panic. The Supreme Court decided that in Schenk v. United States in 1919.

Similarly, inciting violence is not protected speech. And that’s what the white supremacists, neo-Nazis, and Ku Klux Klan members were doing in Charlottesville. Violence is not speech. And when a group of men full of hatred gather in the public square, armed for combat, shouting hateful rhetoric against anyone who is not a straight, white, Christian male, taunting everyone who disagrees with them, and inciting one of their own to murder in the name of their cause, they must be held accountable.

But how? Should we just “punch a Nazi,” responding to violence with more violence? Do we become like those we oppose? No. We use our voices and the law. We use the same first amendment rights that allows them to spew their hatred.

Violence should never be the response to violence or intimidation. Political violence only leads to more violence, never to justice and peace. We who believe in fairness and equality, who believe that those principles embodied in the constitution apply to all, must use our voices, our actions, and the law to counter hate. Our right to freedom of speech and freedom of assembly gives us the tools we need. Counter-protests are important, but they must be peaceful. Those who commit violence in the name of hate must be held accountable through our legal system, not through vigilantism or mob justice.

A week after the violence in Charlottesville, white supremacists gathered in Boston for another so-called Free Speech Rally. This time, however, the much smaller group of white supremacists showed up were met by more than 40,000 people who were there to peacefully counter their message of hate. There were no injuries and no property damage. This is the power of the message of peace and love. The response to the previous week’s violence was public outrage, consequences for the hatemongers (who lost jobs and friends), and a suppression of hate speech through peaceful counter-protests.

Dr. Martin Luther King Jr. wrote:

"The ultimate weakness of violence is that it is a descending spiral begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it. Through violence you may murder the liar, but you cannot murder the lie, nor establish the truth. Through violence you may murder the hater, but you do not murder hate. In fact, violence merely increases hate.

Returning violence for violence multiplies violence, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that." – Where Do We Go from Here: Chaos or Community, 1967 

So, let us continue to speak out forcefully against hate. Let us continue to peacefully assemble with counter-protests. Let us block the Westboro hate with angel shields, overwhelm the white supremacists with counter-protests of love and peace, and show through our words and actions equality and fairness for all. When we live the principles of our constitution, when we use our first amendment rights to speak the truth, and when we use the law to hold accountable those who cross a line into violence, we uphold the constitution and make the world a better place.