Speaking of Hate Speech

     This is obviously not the best time to defend the right to engage in hate speech.  The murders of George Tiller in Kansas and Stephen Johns at the Holocaust museum and fear of more ideologically inspired killing is enough to raise concern about extremist rhetoric even among people who defend its legality.  How can free speech advocates condemn inflammatory anti-abortion rhetoric and racist, anti-Semitic diatribes?  Very carefully, with an understanding of the discretion required to denounce what people say without undermining their rights to say it.    
     "Extreme, overheated rhetoric can have dangerous consequences," Michael B. Keegan, interim president of People for the American Way asserts in a June 8th email alert.  PFAW does not advocate censorship  (it has a strong civil liberties record,) and Keegan dutifully notes that "Freedom of speech is one of our most cherished constitutional values and rights -- and should always be protected."  Then comes the "but," ---"just because speech might be constitutionally protected does not make it right or decent," Keegan adds, immediately qualifying his commitment to free speech:  the "overheated rhetoric" he is about to condemn "might" be constitutionally protected, meaning that it might also be unprotected.  He continues: "There can be little doubt that the irresponsible, inflammatory, dehumanizing and violent speech of some around the abortion debate -- much of it targeted at Dr. Tiller himself -- contributed to this tragedy. The reaction to the assassination by some of these same people has been pretty shocking." Keegan then offers examples of the "fear mongering and hate that drive people inclined towards violence to take action."    
     So in a relatively lengthy email devoted to exposing the "dangerous consequences" of "overheated," far right rhetoric, Keegan includes one brief sentence defending freedom of speech.  Given PFAW's record, I assume that he doesn't intend to condone censorship, but his impassioned certainty that "dehumanizing and violent speech" contributes to murder is probably more persuasive than his qualified acknowledgement of the right to indulge in it.   
     Still compared to other critics of right-wing hate speech, Keegan might pass for a First Amendment absolutist:  In a post at the Daily Kos, assailing Bill O'Reilly for his "jihad" against George Tiller, Jed Lewison notes, "you don't have to actually pull the trigger to help sponsor terrorism."  That is the logic of the Patriot Act.  Meanwhile, a June 12th, weekly email report from Media Matters decries O'Reilly's "long history of inciting violence against Dr. George Tiller."
     Actually inciting violence is not protected speech, as journalists presumably expert in "media matters" should know.   Advocacy of violence may be prohibited when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action," the Supreme Court ruled in the landmark 1969 case of Brandenburg v Ohio.  But, as the people at Media Matters should also know, Bill O'Reilly's rants, however loathsome, do not constitute incitement to violence under Brandenburg.  In fact, Brandenburg struck down the conviction of a Ku Klux Klan leader prosecuted for racist, anti-Semitic rabble-rousing pursuant to a "criminal syndicalism" statute that prohibited advocating violence.  The Court invalidated the statute, citing its ban on "mere advocacy," in an important victory for free speech - a victory that protects O'Reilly and his cohort today, as it protected Klan leaders 40 years ago.     
     It should be needless to add that this ruling also protects activists, advocates, and provocateurs on the left, whose rhetoric is apt to be labeled dangerous or subversive by their opponents on the right, who are, after all, occasionally in power.  Criminal syndicalism statutes like the one struck down in Brandenburg were used to prosecute communist party members and suspected sympathizers during 20th century red scares. But if you expect liberals and progressives - especially those who talk for a living -- to be especially sensitive to the dangers of casually equating speech with violence, you're apt to be disappointed:  "Words can kill" was the caption under George Tiller's picture during a segment of MSNBC's the Ed Show, with Ed Schultz.  
     "Words wound," anti-pornography feminists used to say (and perhaps still do.)  They were not simply speaking metaphorically.  (Years ago, I debated a rabid anti-porn crusader who compared the production of pornography to the manufacture of unsafe cars and dismissed First Amendment rights as "red herrings," in the debate about controlling it.)  To anti-porn feminists, pornography was not just incitement to violence; pornography was violence.  They failed in their efforts to define and regulate it as a civil rights violation but succeeded in fashioning "progressive" arguments for censorship that infect today's debates about hate speech (so broadly and variably defined.)
      I hope it's obvious that I'm not excusing vicious and maniacal, extremist rhetoric or denying that it constitutes a problem.  But it is not a problem we should invite the law to solve, or try to alleviate, unlike, perhaps, the problem of guns.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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