Politics of hate speech

Can freedom of speech be extended to freedom of hate speech?

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 by Dr Ruwantissa Abeyratne-Oct 6, 2018

I disapprove of what you say but will defend to the death your right to say it – attributed to Evelyn Beatrice Hall (1906).

( October 6, 2018, Montreal, Sri Lanka Guardian) Article 14 of the Constitution of Sri Lanka guarantees three sets of rights: freedom of speech, expression and the right to publish.  Sarath Mathilal de Silva in his article published on August 28, 2018 in the Daily News said: ‘Freedom of speech and expression means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or by any other mode. It includes the expressing of one’s ideas through banners, posters, signs etc. It includes the freedom of discussion and dissemination of knowledge. It includes the freedom of the press and the Propagation of ideas; this freedom is ensured by the freedom of circulation. The right of the people to hear is within the concept of freedom of speech”.

Can freedom of speech be extended to freedom of hate speech? Amila de Silva in his article of 11 September 2018 on Facebook titled Does Sri Lanka really need new hate speech legislation? says “Hate Speech legislation is something that should be approached with extreme caution. At the end of the day it is a decision to be taken by society as to what degree of control over speech it is willing to give up in the name of security. History and culture often play a role in attitudes towards this – and Europe’s more restrictive laws on speech can be explained by its colonial and WW2 past as opposed to the US’ more free speech centered, first amendment approach”.

The operative question is therefore whether hate and hate speech should be resisted by censorship. The United States Constitution, in its First Amendment states the: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.  The freedom of expression, as enunciated in the First Amendment, has been considered sacrosanct and inviolable by censorship laws that prohibit opinions and points of view.  In Beauharnais v. Illinois, the Supreme Court of the United States viewed with disapproval a decision of the Illinois Supreme Court, invoking a defamation statute and considering a petition protesting against racial discrimination as calculated to cause violence and disorder.

In New York Times v. Sullivan the Supreme Court rejected the argument that defamation cases are not limited by the First Amendment.  In the 1971 case of Cohen v. California which came before the United Sates Supreme Court, the facts of the case were that the appellant was convicted of violating a  part of California Penal Code § 415 which prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person . . . by . . . offensive conduct,” for wearing a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse. The Court of Appeal held that “offensive conduct” means “behavior which tends to provoke others to acts of violence or to in turn disturb the peace,” and affirmed the conviction.  The Supreme court held that in the absence of a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. The Fourteenth Amendment guarantees that no state can make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor can any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  The Supreme Court held that the constitutional right of expression is powerful medicine in a society and that it was designed to obviate restraints by the government on public discussion.

In the United States, hate speech is constitutionally protected unless such speech corresponds to what is called the “emergency test” where speech would directly cause imminent and serious harm.  This includes slogans such as “Black Lives Matter” or “White Power” if such expressions are publicly stated and are calculated to cause disruption in schools.  The 1969 decision, at the height of the Vietnam war, in Tinker v. Des Moines School District is a case in point where the Court considered the wearing of black arm bands in protest of the Vietnam war to be sufficiently contentious to potentially cause disruption or harm in the school.  It must, however, be mentioned that the constitutional protection of hate speech applies only to governmental action and not to the private sector, which is free to censor hate speech that violates company policy.

Professor Nadine Strossen, in her book HATE: Why We Should Resist it with Free Speech, Not Censorship says: “Hate speech” censorship proponents stress the potential harm such speech might further: discrimination, violence and psychic injuries.  However, there has been little analysis of whether censorship effectively counters the feared injuries”.  Hate speech can be actionable only if such incontrovertibly leads to disrupting of society and harming others.  A good example is the 2016 Anti Semitism Awareness Act which states inter alia that Anti-Semitism remains a persistent, disturbing problem in elementary and secondary schools and on college campuses and that Jewish students are being threatened, harassed, or intimidated in their schools (including on their campuses) on the basis of their shared ancestry or ethnic characteristics including through harassing conduct that creates a hostile environment so severe, pervasive, or persistent so as to interfere with or limit some students’ ability to participate in or benefit from the services, activities, or opportunities offered by schools.  Any speech in a school or other public place that would endanger the safety of a race or ethnic community could analogically, along with epithets or other expressions against the Jewish community, be judicially reprehensible on the basis of the “emergency test”.

To quote Martin Luther King Jr., “Returning hate for hate multiplies hate, 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”.