The Freedom of Speech vs. Racism

The freedom of speech is an effective tool for the discovery of truth and the exposure of falsehood. The freedom of speech also uses central importance to a democratic government. The right to cast a vote means nothing if the vote is not well informed. Citizens can only make a confident decision when faced with two competing policies if they are certain that they have heard the strongest possible arguments for both positions. Freedom of speech, of the press, of association, of assembly and petition are protected by the First Amendment, and together they comprise what we refer to as “freedom of expression.” Benjamin Cardozo has written that this freedom is “the matrix, the indispensable condition of nearly every form of freedom. Without it, other fundamental rights like the right to vote, would wither and die.”

Government however, can limit some protected speech by imposing “time, place and manner” restrictions. Requiring permits for meetings, rallies, and demonstrations are the most common ways to do this. But a permit cannot be unreasonably withheld, nor can it be denied based on content of the speech. That would be what is called viewpoint discrimination–and that is unconstitutional. When protest crosses the line from speech to action, the government can intervene more aggressively. Political protesters have the right to picket, to distribute literature, to chant and to engage passerby in debate. But they do not have the right to block building entrances or to physically harass people.

Censoring so-called hate speech also runs counter to the long-term interests of the most frequent victims of hate: racial, ethnic, religious and sexual minorities. We should not give the government the power to decide which opinions are hateful, for history has taught us that the government is more apt to use this power to prosecute minorities than to protect them. At the same time, freedom of speech does not prevent punishing conduct that intimidates, harasses, or threatens another person, even if words are used. How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most.

Speech that deeply offends our morality or is hostile to our way of like warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one is of us denied this right, all of us are denied. One type of communication that is not protected by the First Amendment is called “fighting words”. This type of intimidating speech directed at a specific individual in a face-to-face confrontation amounts to “fighting words,” and the person engaging in such speech can be punished if “by their very utterance (the words) inflict injury or tend to incite an immediate breach of peace” as written in the Black’s Law Dictionary.

Racism is the mistreatment of a group of people on the basis of race, color, religion, and national origin, place of origin or ancestry. The term racism may also denote a blind and unreasoning hatred, envy or prejudice. Some expression of racism is obvious, such as graffiti, intimidation or physical violence. Being prejudice literally means to “prejudge” based on preconceived ideas about one another. No law can prevent prejudiced attitudes. However, the law can prohibit discriminatory practices and behaviors flowing from prejudice. Hate speech in this country, mainly racist and anti-Semitic speech, has always been recognized as protected by the First Amendment. There is no First Amendment exception for hate speech, so unless it fits into one of the other pigeonholes ― libel, obscenity, or fighting words ― it receives the same guarantees as any other speech.

U.S. courts have not always privileged white racists to express themselves at the expense of the safety of African Americans and other people of color. A pertinent Supreme Court case was decided in 1952 after two race riots in Illinois, in which more than one hundred men, women and children were killed, forcing another 6,000 African Americans to flee the state. In that case, Beauharnais v. Illinois, the head of the White Circle League distributed a leaflet declaring that African Americans would terrorize white neighborhoods with “rapes, robberies, knives, guns and marijuana.” The pamphleteer was convicted when the court decided that libelous statements aimed at groups of people, like those aimed at individuals, fall outside First Amendment protection. While it was certainly a victory for the anti-racist movement, this decision did not go far enough in banning the activities of racist individuals, largely because the government was not yet ready to outlaw its own racist policies. The Brown v. Board of Education school desegregation decision occurred two years later in 1954.

On the other hand, the current Supreme Court is dominated by the right wing. Its interpretations disconnect racial terrorism from the harm inflicted on victims. In 1992, the court decided in R.A.V. vs. St. Paul that a cross burned in the front yard of an African American family by white teenagers was a form of protected symbolic speech. This decision effectively trumped the family’s right to live in their home free from racial terrorism. Using the artificial distinction between speech and action, the Court decided that the act of burning a cross to intimidate a black family was equivalent to freedom of speech.

Free speech, of course, protects and should protect all speech and all writings (except of yelling fire in a movie theatre, assaulting an individual with threats, and so on). Free speech therefore protects and should protect the words of a demagogue, or a group of demagogues. It applies to purveyors of racist claptrap and to advocates of social justice. Except for extortion, libel, and the like, free speech makes no reference to content. Whether something should be said may be a matter of responsibility, context, purpose, accuracy, and so on. That things may be said, is a matter of right.

No right is more fundamental than freedom of speech. Without freedom of speech you cannot communicate your ideas and feelings, discredit a social injustice, pursue an artistic vision, investigate scientific truth, practice a religion, or criticize government. If freedom of speech is destroyed, self-development is crippled, social progress grinds to a halt, and official lies become the only “truths.”