A couple weeks ago, longtime reader and commenter Jim Benton emailed me a set of questions about the limits of liberty. I told him I would give them the attention they deserve and answer them as competently as I can. Here are those questions and my attempt to answer them. They aren’t complete answers, of course; others may well provide more compelling reasons than I do for my position.:
1: Free speech advocates do differ on details. Thus Justice Black argued that the 1st Amendment should make suits for slander and libel unconstitutional. Without getting into your opinion of Justice Black — which I don’t know — do you accept or reject this position, and why?
My opinion of Justice Black is generally very favorable, but this is an opinion I was unaware of. I would disagree with him on this because I think our libel and slander laws are drawn narrowly enough that it provides for consequences only for that speech that A) has the clear intent of harming another person’s rights and interests and B) actually does so. If our libel laws were as broadly worded as the UK’s, on the other hand, I would oppose them.
2: I feel that, because of historical factors and particularly the result of this sort of speech, three specific types of rhetoric MAY deserve less protection than others — some yes, but not as much. I refer to rhetoric that is anti-black (not ‘racialist’ but specifically anti-black), anti-gay, and anti-semitic rhetoric. These have so consistently lead to violence against the specific groups that they may be in a special category. (And other negative statements do not have a similar record, even if some specific examples of violence can be imputed to them, such as anti-Catholic rhetoric, so comparing them would be a false equivalency.)
I think this is a rather arbitrary distinction. Catholics have been the victims of violence in this country, as have Mormons, Jehovah’s Witnesses and other religious groups. And that violence was just as often accompanied by rhetoric against those groups; indeed, how could it not be? Those who seek to commit violence based on prejudice rarely do so without first announcing that prejudice in some manner. But of course, most people who have prejudices do not commit violence, so it’s difficult to make a compelling argument that prejudiced speech leads to violence, rather than sometimes, but only sometimes, accompanying it.
I have several reasons for opposing laws against so-called “hate speech.” First, because any attempt to draw a line between which group is to be protected and which groups it is okay to express one’s hate toward is bound to be arbitrary, as I think your formulation above was. Second, because hated minorities, of all groups, should be profoundly aware of the dangers of giving the government the power to decide which ideas may be expressed and which may not.
Remember that we are only a couple generations removed from a time when advocating the normalcy of homosexuality could get you thrown in jail in many jurisdictions in America on charges of corrupting the public morality. Remember also that once we give that power to government, the content of such laws is determined by legislative majorities, not minorities. And remember that the nature of government is to grow inexorably beyond the limits placed upon it; laws which are intended to only do X often end up doing X, Y and Z, often to our detriment.
We have some experience with such hate speech laws already in this country, principally on college campuses. That experience shows clearly the validity of this last argument I made above. Rules that were initially intended only to prohibit racist speech have been used to attack speakers and organizations that oppose affirmative action, for example, or who advocate laws to restrict illegal immigration. They are almost always used by those in the political majority on a college campus to try and shut down the speech of those in the political minority.
Time and time again we’ve seen campus rules against “demeaning” or “exposing to vilification” a person or group used to punish those who expressed what was an unpopular viewpoint within the campus community. Such rules inevitably get broadened in scope so that they end up punishing anyone who is to be motivated by bias rather than those who explicitly express such bias. Lastly, I would argue that as a practical matter we should oppose such laws because we should want people to express such ideas publicly, if for no other reason so we know who they are and what they are doing. Outlawing bigoted speech will not outlaw bigotry, it will only make it harder to identify and track.
3. Coughlinites in the 30s used a specific tactic. Sellers of SOCIAL JUSTICE would see a Jew coming near them and specifically make inflamatory comments, hoping to provoke the Jew into reacting to them and expecting this would lead their followers to beat the Jew — and it worked, many times. Some people consider that the Westboro people do the same thing, only they respond with lawsuits rather than physical violence. Is there any way to counteract these tactics other than counseling the hearers to remain calm?
I think the notion that the Westboro Baptist Church is doing the same thing is rather silly. If they’re really trying to provoke a response to spark a fight, they’re the ones who are gonna end up bleeding, not those they provoked. Wherever they protest they are counter-protested by Rolling Thunder, a group of biker vets. They are hopelessly outnumbered everywhere they protest and if they provoked anyone, it’s not the others who would get beat up, it’s them.
One way to counteract those tactics is exactly the way Rolling Thunder has done it – by showing up and outnumbering them. We’ve seen the same thing happen with KKK rallies here in Michigan. We give them permits to hold their rallies and then 5 times as many counter-protesters show up to show them several things – that they are a tiny minority and that society will not be cowed by their bigotry and history of violence. Indeed, I would argue that this is one of the best things about allowing such groups to preach their hate openly. It galvanizes opposition to them and it motivates people to band together to show them that we’re not intimidated by them or scared of them. As the old saying goes, sunshine is the best disinfectant.
4: On the billboard case you mention recently, how do you distinguish this from the question of college and other newspapers accepting ads from Holocaust deniers? If a government official saw a holocaust-denial ad and told the paper that if they ran the ad again, the state or city would pull its legal advertising because they chose not to be associated with such comments, would you feel they were justified? — I am taking the position that, in ad placement they are acting as — in effect — a private company and not a governmental agency. Again, do you agree, and if not, how do you distinguish the case? Equally, does a college have a right to sanction a school newspaper that ran such an ad?
These are really narrow questions. We know that the government cannot punish a private company for doing something that is constitutionally protected, but that doesn’t mean that the government has to keep giving their business to a company either. There are many laws around the country requiring the government not to do business with companies or groups that engage in discrimination and such laws are constitutional. I would make a distinction, though, between a government pulling their own business from the billboard company or newspaper, and the government taking legally punitive action against them.
5: We also differ on the question of ‘teaching the controversy’ on evolution vs. creationism. I feel that the BEST way of teaching evolution (on a HS or JHS level) would be to bring up the controversy and have part of the class research each position. By developing the evidence that shows how nonsensical creationism is, I feel that the students would, far better, teach themselves about evolution. I also feel that the current way puts students in a position of saying “Teacher said; Preacher said” without challenging them to discover which is right. Comment?
I think this sounds like a very compelling position unless one is aware of how little evolution is actually taught in high school science classes. In the vast majority of high school biology classes, in a full semester they spend less than a week on evolution. We can’t even get enough time in classrooms to adequately teach the most basic things about evolutionary biology, much less try and introduce alternatives to it. I think in a college course, this would be a great idea; in high school as its now taught, it would only water down the already vastly insufficient instruction in evolutionary biology.
6: (This story was, in fact, the final push to get me to write this.) JEWS ON FIRST has run a story on ‘ex-gay’ groups demanding ‘equal time’ and even clubs equivalent to GSAs, and even suing to achieve this. Would you support or oppose such suits, and if so, why?
I would say the same thing I’ve said when it comes to the anti-gay Day of Truth in response to the pro-gay Day of Silence: they have exactly the same constitutional right to express either opinion and to organize for that purpose. Under the Equal Access Act, students who wanted to form such a group would have exactly the same right to do so that the GSA clubs do.