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OpEdNews Op Eds    H2'ed 3/5/21

What can we do about hate speech?

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Hate speech is defined by the Cambridge Dictionary as "public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation". Hate speech is "usually thought to include communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation". There has been much debate over freedom of speech, hate speech and hate speech legislation. The laws of some countries describe hate speech as speech, gestures, conduct, writing, or displays that incite violence or prejudicial actions against a group or individuals on the basis of their membership in the group, or which disparage or intimidate a group or individuals on the basis of their membership in the group. The law may identify a group based on certain characteristics. The United States does not have hate speech laws, since the U.S. Supreme Court has repeatedly ruled that laws criminalizing hate speech violate the guarantee to freedom of speech contained in the First Amendment to the U.S. Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected free speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.

Some limits on expression were contemplated by the framers and have been defined by the Supreme Court of the United States. In 1942, the issue of group defamation was first most explicitly brought up in Chaplinsky v. New Hampshire, which surrounded the issue of a Jehovah's Witness, Walter Chaplinsky, who verbally attacked a town marshal for restricting his use of a public sidewalk to protest organized religion by calling him a "damned fascist" and "racketeer." Later, when the court heard Beauharnais v.Illinois, establishing the narrow traditional exception to the first amendment covering those words which by their very utterances tend to inflict injury or tend to incite an immediate breach of the peace. About a decade later in 1952, in Beauharnais v. Illinois, the Supreme Court upheld the constitutionality of the state of Illinois's group libel law, which punished expression attacking the reputation of racial, ethnic, and religious groups. In 1969, the Supreme Court protected a Ku Klux Klan member's speech and created the "imminent danger" test to determine on what grounds speech can be limited. The court ruled in Brandenburg v. Ohio that: "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action."

In short, there is no legal definition of "hate speech" under U.S. law, just as there is no legal definition for evil ideas, rudeness, unpatriotic speech, or any other kind of speech that people might condemn. The First Amendment says that "Congress shall make no law " abridging the freedom of speech, or of the press." For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.

At first glance, the text of the speech and press clauses might appear to prevent Congress from imposing any restrictions on expression. But this reading can't be right, and it never has been. Every functioning government needs to restrict some speech. Laws against committing perjury, disclosing classified information, and making terrorist threats, for example, all restrict "speech," but no one seriously doubts their constitutionality.

With only peripheral exceptions, however, modern judicial decisions about expressive freedom do not consider original meaning at all. Only a decade after the Constitution went into effect, Americans vehemently disagreed over whether Congress could pass the Sedition Act of 1798, which banned false and malicious criticisms of the federal government.

Rights were rooted in a philosophical system of social-contract theory. Virtually every American political leader in the late 18th century agreed about its core features. The founders recognized two crucial limitations that this theory imposes on governmental power to restrict rights. First, natural rights can be restricted only when the people themselves consent, either in person or through their political representatives. This was a rallying cry for American colonists rooting for independence rather than submitting to British taxation when they had no representation in Parliament. Second, the government could restrict rights only when doing so promoted the public good, that is, the aggregate happiness and welfare of the entire political society. Natural rights were all the things that we could do simply as humans, without the intervention of a government. As Thomas Paine put it, "A natural right is an animal right, and the power to act it, is supposed " to be mechanically contained within ourselves as individuals." Eating, walking, thinking, and praying were all things that individuals could do without a government, so they were all easily identifiable as natural rights.

Meanwhile, positive rights were defined governmental authority. The right to a jury trial and the right to habeas corpus were positive rights because they were procedures provided by the government.

Individuals entering a political society, John Locke explained in his widely read Second Treatise, surrender "as much " natural Liberty " as the Good, Prosperity, and Safety of the Society shall require."

The concept of natural rights define who could restrict individual liberty (namely, a representative legislature) and why they could do so (namely, to promote the public good). But natural rights are not determinate legal privileges or immunities that the government could not abridge. Natural rights, it bears emphasis, could be restricted by law to promote the good of the society. "[T]he right to speak and act," American patriot James Otis explained at the onset of the colonial conflict, "is limited by the law Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther." This put the legislature, not judges, in primary control over how far to restrict expression. The freedoms of speech and of the press were a primarily philosophical concept, not a strictly legal one.

The founders also appreciated that certain regulations of speech were not in the public interest and were beyond the scope of legislative power. The famous "rule against prior restraints" prohibiting the government from requiring preapproval of publications, is one example. Another is that well-intentioned criticisms of the government could not be punished. (Deliberately misleading the public was an entirely different matter.) The First Amendment thus prevented temporary legislative majorities from abandoning settled principles.

Sedition Act of 1798, under which people could be fined or imprisoned for writing, printing, uttering or publishing "any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States."" From the standpoint of law in the 21st century, that's plainly unconstitutional. But in the founding era, most people seemed to think that it was fine. Engagement with the historical materials raises hard questions for free-speech enthusiasts. Going with the original understanding, Citizens United (the Supreme Court's decision protecting the right of corporations to spend money on political campaigns) would likely have to go.

In other words, the debate still rages as to what can be done, legally, about the law and hate speech. But, knowing what hate speech is, and why we've had such a hard time dealing with it, how do we as a people actually fix it?

Countering hate speech begins with a realization that while freedom of expression is a fundamental human right, and social media has created multiple platforms for hate speech. Education should focus on the rights and freedoms of people and their role in creating and promoting peaceful societies.

Awareness must be raised on the political, social and cultural rights of individuals and groups, including freedom of speech, as well as the responsibilities and implications that come with it. People must be equipped with the knowledge and skills to identify hate speech and counteract hate speech.

Dispel the 'us' against 'them' fallacy. Journalists should be taught conflict sensitive reporting skills. Multicultural awareness campaigns should emphasize on knowledge and respect for the diversity of cultures and traditions. Journalists must use professional standards in this and write articles, air programs and even speak with people without taking sides.

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Franz Wohlgemuth Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

Franz has been studying political science for almost 30 years and is very passionate about his nation. He bends no knee to party or personality (which means he infuriates both sides of the aisle). He is blunt, to the point, and will call out (more...)

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