There is danger in the pandering of hatred that goes beyond the freedom of expression. Is there a right to profit from supplying the seeds of destruction to those who have the need to blame others for the poverty of their existence? Bar owners who continue to serve drunks can be held responsible for the deaths of those later killed in traffic collisions, but to what extend should those who peddle the rhetoric of hatred, bigotry, and violence be held responsible for the consequences of their merchandising?
These were some of the questions that confronted us in 1980 when I represented a survivor of Auschwitz against those who denied the Holocaust. Alleging an "Injurious Denial of an Established Fact," I argued that someone should not be able to grasp a blatant lie in one's hand and slap another person in the face with it. The matter was resolved when a Los Angeles Superior Court judge ruled: "this Court does take judicial notice of the fact that Jews were gassed to death at Auschwitz Concentration Camp in Poland during the summer of 1944 . . . . It is simply a fact."
The defendants were the Institute for Historical Review (IHR) and its parent company, the Liberty Lobby--which was a conglomerate of radical right-wing organizations that marketed individualized packages of hatred to those with particular proclivities. The IHR was attempting to move onto college campuses by circulating a slick "scholarly journal" that offered pseudoscientific theories denying the existence of the Nazi genocide of European Jewry. We were successful at blunting its collegiate campaign; however, 35 years later, these and similar organizations--now making full use of the Internet--continue to promulgate lies for profit. The danger of these lies threatens everyone, not just those targeted by the propaganda of violent hatred.
Freedom of Speech
James Madison, the author of the Bill of Rights, considered the First Amendment to be the most important, since without the freedom of speech all others are forfeit. The ink was hardly dry on the document before Congress enacted the Sedition Act in 1798 to punish "scandalous and malicious writings" about the president or the government which caused them to be held in "contempt or disrepute." The Act expired with the election of Thomas Jefferson in 1800, and President Adams later considered the Act to be the greatest mistake of his administration. Opposition by Jefferson and others, who encouraged nullification of the Act, planted the seeds of disunion that later led to the Civil War.
The Supreme Court never had a chance to review the Sedition Act, but it later held that the First Amendment protected all speech, except "the lewd and obscene, the profane, the libelous and the insulting or 'fighting' words--those which by their very utterances inflict injury or tend to incite an immediate breach of the peace." In a Ku Klux Klan (KKK) case in 1969, the Court allowed racist and hate-filled speech, unless it was directed "to inciting imminent lawless action and is likely to incite or produce such action." More recently, in 1992, the Court struck down an ordinance that criminalized racist and hate-filled nonverbal speech, such as cross burnings, as contravening the First Amendment. The Court focused on the mode of expression, rather than the content. Hate speech is protected unless it leads to imminent violence.
All of this legal activity concerned itself with the criminalization of speech, both verbal and nonverbal; however, civil litigation against hate speech brought by those who are offended or affected by the speech has a different legal history. Henry Ford, the automobile magnate, was a notorious anti-Semite who directed his newspaper to attack an agricultural cooperative movement as defrauding American farmers on behalf of an international Jewish conspiracy. He was personally sued for libel by the movement's leader, and two years of litigation ensued, during which it became apparent that Ford would be unable to prove the truth of his allegations. To avoid having to testify in the trial, Ford issued a generalized apology to the entire Jewish people that had been secretly prepared by the head of the American Jewish Committee. Ford was able to escape civil liability and, undeterred, went on to publish his collection of articles in an anti-Semitic pamphlet, The International Jew, which is still available on the Internet. He also funded the printing and distribution of 500,000 copies of The Protocols of the Elders of Zion, a fraudulent incitement to racial and religious hatred.
The Civil Rights Act of 1964 imposed civil liability on employers for tolerating "hate speech" by their employees, if it created a "hostile or offensive work environment." As a result, many universities adopted "speech codes" regulating the speech of students and faculty. In an attempt to avoid a hostile educational environment, university speech codes can also create a lack of tolerance for a diversity of opinion. Speech codes can cause nonconforming students to self-censor educationally valuable participation in discussions. It is a delicate balance, and some of the codes have been struck down as being an unwarranted infringement of First Amendment rights.
Among the first exceptions to free speech was the "lewd and obscene," usually referred to as pornography. Originally prohibited altogether, the portrayal of sexual subjects for the purpose of sexual arousal is no longer a crime--as long as it does not depict children, and minors are not exposed to it. There are parallels between pornography and hate speech in that, while offensive to many, if not most, people, they are allowable in order to preserve the greater good of free expression. In both cases, potentially harmful material is distributed for profit in order to satisfy the prurient and unhealthy interests of the consumer.
Free speech--even that which is repugnant to most people--is so important that the American Civil Liberties Union has defended the right of the KKK to distribute racist literature promulgated to preserve the purity of "white blood." Among the most alarming hate speech is the growing popularity of white power, racist, and anti-Semitic music. Primarily presented in the genres of rock and country, the music employs explicit lyrics to appeal to the unique prejudices of its listeners. While country hate music is primarily directed against the federal government and blacks--white power music targets Jews, homosexuals, immigrants, and anyone not considered to be "white." National Socialism heavy-metal music promotes white supremacy, racial separation, anti-Semitism, and Nazi paganism. In the vernacular of hatred, nonwhites are "mud people," and Jews are the "devil's spawn."
Internet Hate Speech
With the advent of the Internet and social media, hate groups have extended the range and ferocity of their attacks. The radical right-wing organizations we confronted in the 1980s now have colorful and dynamic web pages to attract visitors and new members. The Institute for Historical Review maintains a website and page on Facebook, where it is "liked" by 674 friends. Willis Carto--who founded the Liberty Lobby and IHR and later lost control to staff members during a palace coup--has rebounded with The Barnes Review, which peddles hate literature on the Internet in competition with his former organizations. In addition he launched the American Free Press, which promotes anti-Semitic conspiracy theories and publishes online articles by Ron Paul, Pat Buchanan, and other conservative writers.
Internet websites and social media were in the news following the three most recent mass shootings. On social media, Chris Harper-Mercer, a college student, described himself as a conservative Republican with a disdain of organized religion. He expressed an admiration of the on-air murderer of two television employees in Virginia, and he posted a photograph of himself with a rifle on Facebook. Regarding the Virginia shooter, Harper-Mercer wrote, "Seems the more people you kill the more you're in the limelight." His gmail address was IronCross, a seeming reference to Nazi Germany, and he was found to have shared Nazi videos on the Internet. Harper-Mercer, clad in body armor, carried six guns onto a college campus in Southern Oregon on October 1st, where he confronted students and faculty in classrooms. Forcing students to state their religion, he killed those who responded "Christian," saying "you're going to see God in just about one second." Eight students and their professor were murdered and nine wounded before Harper-Mercer committed suicide.
Hoping to start a "race war," Dylann Roof, massacred nine African Americans as they attended services in a historic black church in South Carolina in June 2015. The twenty-one-year-old had created a website, the Last Rhodesian, on which he promoted racial apartheid. He researched his views on the website of the Council of Conservative Citizens (CCC)--formerly known as the White Citizen's Council--the Nation's largest white nationalist group. He also posted comments on the neo-Nazi website, Daily Stormer. Roof was indoctrinated to believe that "Niggers are stupid and violent," and "someone has to have the bravery to take it to the real world." Roof demonstrated his bravery by firing (and repeatedly reloading) his semi-automatic handgun into his helpless victims as they were praying.
Another racist predator, John Russell Houser randomly sprayed patrons with bullets in a Louisiana movie theatre in July 2015, murdering two people and wounded nine--before killing himself. Houser had adopted the Nazi flag as a symbol of his resistance to the government, and he supported KKK Grand Wizard David Duke. Writing on a neo-Nazi political website, Houser emphasized the "power of the lone wolf." On other websites, he expressed anti-Semitic thoughts and supported white power. He wrote that "Hitler is loved for the results of his pragmatism" and discussed the "role of Blacks in building and maintaining this alliance of evil that literally grips the globe." On another, he commented, "It is a shame Tim McVeigh [the Oklahoma City bomber] is not going to be with us to enjoy the hilarity of turning the tables with an IRON HAND."
The Greatest Terrorist Threat to Americans
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