Does freedom to speak in ways that others consider “offensive” or “hateful” threaten minorities or does it protect minorities? Before you answer, please consider one of the means by which abolitionists sought to change public opinion about slavery.
In the 1830s abolitionists were using the U.S. mail in their campaign to end slavery. In 1835 United States Postmaster Amos Kendall found one bulk mailing to Charleston, South Carolina, to be particularly objectionable. He believed the mailing to be part of “a wicked plan of exciting the negroes to insurrection and to massacre” and conferred President Andrew Jackson on how to handle the mailing, which was characterized by Charleston’s postmaster as “inflammatory and incendiary.”
Jackson’s response was to order the mail delivered only to “subscribers” and the names of abolitionists receiving the mail to be “published as supporters of ‘exciting the negroes to insurrection and to massacre.’” The abolitionists deserved, Jackson added, “to atone for this wicked attempt with their lives.”
It was the speech of abolitionists that some, including the President, considered offensive. In slaveholding states the speech of abolitionists was criminalized, with their speech considered “treason against slavery.” In Maryland, criminal libel laws were used against abolitionist William Lloyd Garrison.
Which is more dangerous: “Offensive” words or suppression of speech? Today, particularly on college campuses, many believe that words are the greater danger.
Pew Research Center survey data reveals that 40 percent of millennials believe that “government should be able to prevent people publicly making statements that are offensive to minority groups.” Overall, 28 percent of the U.S. population shares that views.
Social media has responded to the call of the minority for censorship. At the urging of the Southern Poverty Law Center, Twitter has recently suspended the accounts of those on the alt-right that they determine to be guilty of hate speech. In October, YouTube restricted access to a video on the First Amendment by Wall Street Journal reporter Kimberley Strassel on the grounds that it was “potentially objectionable.” The restriction was reversed after others exercised their right of free speech to expose YouTube’s decision as ludicrous.
This past spring when many in England were in an uproar about Donald Trump, the English author of the Harry Potter series J.K. Rowling offered this defense of the freedom to be offensive: “[Trump’s] freedom to speak protects my freedom to call him a bigot. His freedom guarantees mine.” She continued,
If my offended feelings can constitute a travel ban on Donald Trump, I have no moral grounds on which to argue that those offended by feminism or the right for transgender rights or universal suffrage should not oppress campaigners for those causes. If you seek the removal of freedoms from an opponent simply on the grounds that they have offended you, you have crossed a line to stand along tyrants who imprison, torture and kill on exactly the same justification.
In short, the best guarantee of our right to freedom of speech is our commitment to the right of freedom of speech for others. Without that mutual respect for our constitutionally guaranteed rights, government can quickly be used against anyone’s speech.
In 1789, the First Amendment to the Constitution of the United States was sent to the States for ratification. About speech, the First Amendment said, “Congress shall make no law…abridging the freedom of speech, or of the press.…” Law professor Eugene Volokh points out there is no hate speech exception to the First Amendment.
Also in 1789, the French Revolution produced Article 11 of the Declaration of the Rights of Man: “Every citizen may… speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.” The “but” is huge. Today the French live with an 1881 law that “prohibits anyone from publicly inciting another to discriminate against, or to hate or to harm, a person or a group for belonging or not belonging, in fact or in fancy, to an ethnicity, a nation, a race, a religion, a sex, or a sexual orientation, or for having a handicap.”
If hate speech was prohibited in the U.S., Volokh raises serious questions about “what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries, and prosecutors are supposed to distinguish the two?”
What might have been the consequences to the abolitionists movement had a French-type law been enforced in the United States in the 1830s?
Today, if a French-type law was enforced in the United States, what might be the consequences to liberal Muslim reformers such as Ayaan Hirsi Ali and Maajid Nawaz? Ali and Nawaz have been accused of hate speech and are prohibited from speaking on some college campuses. Ironically, Ali and Nawaz speak in defense of the rights of Muslim women. Interestingly, the Southern Poverty Law Center is among those who have labeled Ali and Nawaz as extremists. It may not be their intent, but those who want to prohibit speech may be helping to block reforms in the Muslim community.
“Oppressed and marginalized minorities by definition have little political power,” says law professor Tom Bell. Bell argues that “when we allow the open expression of hateful opinions, we create opportunities to publicly refute them.” In this process, with free speech, we “promote the progress of human understanding.”
Before we go further down the path of restricting free speech, we might join Bell and ask, do such restrictions “undermine the very principles of freedom and tolerance they claim to defend?”
[Image Credit: KHQ Today]