The Fine Line Between Free Speech and Provocation.

Kurt Lykke Lindved Ph.D
Culture and Development – UN
Lecturer and Writer
Honory Dutch Counsel
Former CEO in EAC
Entertainer and Event Management

The Fine Line Between Free Speech and Provocation

Hate speech is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits. Should hate speech be discouraged? The answer is easy—of course! However, developing such policies runs the risk of limiting an individual’s ability to exercise free speech. When a conflict arises about which is more important—protecting community interests or safeguarding the rights of the individual—a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker.

In this country there is no right to speak fighting words—those words without social value, directed to a specific individual, that would provoke a reasonable member of the group about whom the words are spoken. For example, a person cannot utter a racial or ethnic epithet to another if those words are likely to cause the listener to react violently. However, under the First Amendment, individuals do have a right to speech that the listener disagrees with and to speech that is offensive and hateful.

Think about it. It’s always easier to defend someone’s right to say something with which you agree. But in a free society, you also have a duty to defend speech to which you may strongly object.

acebfcd6f4636a638c21e85e364245e23111128eActs Speak Louder than Words
One way to deal effectively with hate speech is to create laws and policies that discourage bad behavior but do not punish bad beliefs. Another way of saying this is to create laws and policies that do not attempt to define hate speech as hate crimes, or “acts.” In two recent hate crime cases, the U.S. Supreme Court concluded that acts, but not speech, may be regulated by law.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), involved the juvenile court proceeding of a white 14-year-old who burned a cross on the front lawn of the only black family in a St. Paul, Minn., neighborhood. Burning a cross is a very hateful thing to do: it is one of the symbols of the Ku Klux Klan, an organization that has spread hatred and harm throughout this country. The burning cross clearly demonstrated to this family that at least this youth did not welcome them in the neighborhood. The family brought charges, and the boy was prosecuted under a Minnesota criminal law that made it illegal to place, on public or private property, a burning cross, swastika, or other symbol likely to arouse “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The case went all the way to the Supreme Court, which ruled that the Minnesota law was unconstitutional because it violated the youth’s First Amendment free speech rights

Note that the Court did not rule that the act itself—burning a cross on the family’s front lawn—was legal. In fact, the youth could have been held criminally responsible for damaging property or for threatening or intimidating the family. Instead, the law was defective because it improperly focused on the motivation for—the thinking that results in—criminal behavior rather than on criminal behavior itself. It attempted to punish the youth for the content of his message, not for his actions.

In the second case, Wisconsin v. Mitchell, 508 U.S. 476 (1993), Mitchell and several black youth were outside a movie theater after viewing Mississippi Burning, in which several blacks are beaten. A white youth happened to walk by, and Mitchell yelled, “There goes a white boy; go get him!” Mitchell and the others attacked and beat the boy.

In criminal law, penalties are usually based on factors such as the seriousness of the act, whether it was accidental or intentional, and the harm it caused to the victim. It is also not unusual to have crimes treated more harshly depending upon who the victim is. For example, in most states battery (beating someone) is punished more harshly if the victim is a senior citizen, a young child, a police officer, or a teacher.

Under Wisconsin law, the penalty for battery is increased if the offender intentionally selects the victim “because of the race, religion, color, disability, sexual orientation and national origin or ancestry of that person.” The Supreme Court ruled in Wisconsin v. Mitchell that this increased penalty did not violate the free speech rights of the accused. The Court reasoned that the penalty was increased because the act itself was directed at a particular victim, not because of Mitchell’s thoughts.

Libertarian and Communitarian Perspectives
There is a range of approaches to when hate speech might be regulated. On one end is the libertarian perspective; on the other, the communitarian. In both R.A.V. and Mitchell, the Supreme Court took the libertarian approach.

Libertarians believe that individuals have the right to free speech and that government should be able to limit it only for the most compelling reasons. Most libertarians recognize fighting words as an example of a sufficiently compelling reason to limit free speech. Notwithstanding the libertarian viewpoint, the courts have been careful to interpret this exception narrowly.

Communitarians take a different approach. They believe that the community’s well-being is society’s most important goal and that an individual’s right to free speech may be limited in the interests of community harmony. They believe that treating people with fairness and dignity justifies at least some free-speech restrictions-that eliminating or reducing hate speech is a sufficiently compelling goal to justify government regulation. Communitarians would expand the fighting words doctrine to allow for increased government regulation.

Can a middle ground be found—a way to accommodate both the communitarian and libertarian perspectives? Perhaps so. Government has the obligation to protect speech by disallowing laws that are too restrictive, yet it can also encourage individuals to respect each other.

Success on Campus
Here’s how one community recently approached an incidence of hate speech by calling attention to it rather than attempting to suppress it—by encouraging speech that pointed out how out of place the hate speech was in a community that values the dignity of all.

Matt Hale, a notorious racist, was recently asked to speak at the University of Illinois at Springfield. Hale is the leader of the World of the Creator, a white supremacist group. His presence on campus was controversial. Several students, faculty, and community members thought that the university should cancel his appearance. Instead, he was allowed to speak. Hale’s audience was not impressed. He came across as having a confusing set of beliefs that were out of place in a democratic, multicultural society. Several faculty and students spoke out against his message of hatred.

By allowing Hale to speak, the university recognized free speech rights but also provided a means for community members to respond. Communitarian and libertarian goals were both met.