The Freedom to Hate
‘’This is America; here the first amendment protects my right to say what I want — you cannot censor me.” While I’m sure this line is related to more than one individual, I am not quoting a specific person but instead simplifying a common argument used by the radical right when someone dissents and battles an extremist belief. Well, as we all know, the Declaration of Independence specifies America’s founding principles: all people have an equal right to life, liberty, and the pursuit of happiness. Our Bill of Rights goes on to declare that freedom of speech is the chief protection of these rights by making it the first amendment. That said, what does the guarantee of freedom of speech actually entail?
First and foremost, Geoffrey Stone and Eugene Volokh’s article, Freedom of Speech and the Press, states that freedom of speech restricts our government so that it “may not jail, fine, or impose civil liability on people or organizations based on what they say or write.” While morally incorrect, neo-nazis hold and maintain the legal right to preach whatever rhetoric they see fit — regardless if they use it to abuse marginalized groups. However, there are stipulations. As the Cornell Law School explains in their breakdown of the First Amendment, “fighting words” and “advocacy of illegal action” are not protected by the law and can be subject to punishment. This explanation may prompt one to ask, “What do we consider “fighting words” and “advocacy of illegal action;” Where do we draw the line?” Cornell Law School chose to use the lawsuit of Terminiello v. Chicago to clarify: “Words which produce a clear and present danger are unprotected (and are considering fighting words), but words which invite dispute and causes unrest are protected (and are not considered fighting words).” To be considered a clear and present danger, the speech in question must “impose a threat that a substantive evil might follow, and [show that] the threat is a real, imminent threat.”
My point is — according to the law, freedom of speech does not equate to freedom to threaten, harass, and violate another person in the spirit of “saying what you want.” Yes, I can’t restrict neo-nazis from rallying to preach their out-dated doctrine — but if they run-up to a Jewish person in the streets, screaming that they are going to assault/kill them, that is punishable by law. If a group of white supremacists with rope in their hands make public statements that they will lynch the next black person they see, that is punishable by law. All have the freedom to hate as much as they want, but their freedom to hate does not mean there will be no consequences.
To expand on my last sentence, these “consequences” are not limited to legal action on behalf of the government. One is free to advocate for what they want or believe, but systems such as schools, workplaces, and restaurants are allowed to handle these situations according to their own policies. At school, it may be detention; at work, it may be the termination of employment; for restaurants, it may be a refusal of service. It is up to the public to decide whether or not to act. Jane Haskins explores the legal right of refusal of services: “The entire United States is covered by the Federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.” “Public accommodation” includes places such as “hotels, restaurants, theaters, banks, health clubs and stores.” So, if a restaurant were to reuse to service someone on the basis of them being a Republican or Democrat, that is both wrong and illegal. However, if someone is sporting swastikas and talking about white nationalism walks in to have a meal, the restaurant can essentially kick them out. White nationalists may be free from legal restrictions on their beliefs but are not shielded from public opposition.
Similarly, social media stands as a battleground for people of all opinions, radical or not, and it is here that I often see racist, sexist, homophobic, ableist, classist, etc. beliefs — far too often, in my opinion. It is also on social media that many alt. right (and some radical left) advocates find some of their content removed. As stated by the American Bar Association, “The first justification, the marketplace of ideas, is a pervasive metaphor in First Amendment law that posits the government should not distort the market and engage in content control.” Interestingly enough, this quote is an excerpt from an argument that social media companies should not be able to limit their content as much. But that’s beside the point — maybe I’ll address it some other time. Social media does not just regulate their content in terms of legality but by the industry’s own moral code as well — an example being Trump’s tweets regarding mail-in ballots and voter fraud. Trump has not only made false accusations about the legitimacy of the use of mail-in ballots, but he has also encouraged his followers to engage in voter fraud by attempting to vote twice to “test” the system. In retaliation, Twitter and Facebook have both “moved to limit the visibility of President Donald Trump’s recent remarks encouraging supporters to try to cast two ballots for the November election, which the social media companies said violated their election integrity rules” (Lima, Politico). Not even the president can make careless remarks without retribution by the people and the corporations connecting them.
Essentially, “freedom of speech” does not necessarily protect one from punishment for speaking ill-meant things, neither legally nor socially. I will respect one’s right to speak, and I will, in turn, speak back and follow my own moral compass — whether it points me towards legal action or to simply face conflict head-on. If I witness a violative act that is a breach of the First Amendment, I will report it without hesitation. As I said before, all are free to hate, but I am also “free” to challenge the convictions I find morally wrong. Whether it be legal or vocal action — responding to ignorant statements is not censorship: it is reason.
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