Point The Outrage Override
by Carl Cohen
Counterpoint End Hate Speech
by Cristina Ley
Should hateful speech be forbidden?
In Saskatchewan, just a few years ago, a man peacefully distributed pamphlets that denounced the introduction of homosexuality into the curriculum of the Saskatoon Public Schools as sinful. Currently in Canada, one has the right not to be offended. Their Human Rights Code prohibits speech that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons.” Four gay citizens complained to Canadian authorities, and (pace Leviticus 18:22) the pamphleteer was firmly punished and obliged to pay those complainants $17,500 because their feelings had been hurt.
The Saskatchewan Human Rights Commission tells us that it is permissible to express the opinion that homosexuality is sinful, but this message must be delivered in a way that does not come across as hateful to one’s listeners. In Canada, any speech is hate speech when some folks are offended by it. But consider, as Justice John Marshall Harlan wrote, “one man’s vulgarity is another man’s lyric.”
Speech, no matter the content, should be protected.
Canada is not unusual: France, Ireland, Norway, Poland, Germany, South Africa, the United Kingdom, and many other countries have similar laws. Over most of the globe, what you may lawfully say or write is sharply restricted by the sensibilities of others. You may neither insult groups nor offend them. Being nice is held more important than being free.
If you find this disheartening, as I do, take some consolation in this: by formally defending the freedom of speech, our country is unique, even when what is said or written is truly hateful. The classic case was when the American Nazi Party in 1978 sought to march in the streets of Skokie, Illinois, a predominately Jewish city. The American Civil Liberties Union defended in court their right to march and ultimately prevailed.
Immediately, membership in the ACLU of Illinois fell by nearly half. Freedom of speech? Of course! We treasure it, but not for those obnoxious and outrageous opinions! The identity of the intolerably outrageous group changes over the years: atheists, anarchists, Nazis, communists – and now the latest batch of scoundrels: racists, spewing hate speech. Freedom, yes – but not for them! I call this effect the “outrage override.”
But the freedom to speak on matters of public concern is not divisible by topic or party. There must be no outrage override. We must protect that freedom for everyone, including the nastiest and most disgusting folks, or we will lose it.
At the University of Michigan a few decades ago, three faculty members were famously dismissed for their hateful political views. Now, in self-punishment, we hold an annual lecture on free speech issues in their honor. More recently we tried to enforce a speech code here at Michigan to protect the sensibilities of vulnerable women against hateful words. If a male student were to remark in class “Women just aren’t as good in this field as men,” that remark (given explicitly as an example in the written code) would create a “hostile environment” and be punishable. The Federal court gave a very stern, well deserved, lecture on free speech to us when our speech code was struck down. (Doe v. University of Michigan, 1989).
But as a country we are not doing badly in this arena. Nowhere else in the world is there protection for speech as forthright and as forceful as that given by the First Amendment of our Constitution. This does have some rough consequences, because speech can insult, belittle, incite and offend. Our Canadian brethren are protective, but unwise. There can be no right, in a free and open society, not to be offended. If you think Jews are pushy, you are free to say that publicly in our country; and if you think blacks are lazy, or Polacks are dumb – and so on – you may say that too. You may publish views that are stupid and mean, and you may parade through public streets proclaiming your favorite hatred. This is a critical part of what it means to say, as we rightly do say, that “we live in a free country.” Freedom can hurt, and it often does – but it is far, far more important in the body politic than being nice.
In every generation that lesson must be re-learned. This very year our Supreme Court was obliged to teach it again, in a vexed dispute about some truly despicable public speaking that was protected here as it would have been protected nowhere else. For the Court majority Chief Justice Roberts wrote:
“[S]peech cannot be restricted simply because it is upsetting or arouses contempt. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.’”
(Snyder v. Phelps, 2 March 2011)
The best response to nasty speech is more speech, not laws or codes to restrict speech. Of course we don’t welcome hate speech, or commend it. But when we confront it Americans may take pride in the fact that even those outrageous views may be expressed in our country. We tolerate no override.
Everyone knows how important freedom of speech is. Allowing both individuals and communities to express their opinions on any issue is one of our most celebrated constitutional rights. The presence of diverse voices allows for dynamic discourse that is essential in creating fair laws in our government. However, with this right comes the danger of hate speech. Wikipedia defines hate speech as “any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic.” We should no longer justify hate speech, under any protection, because doing so absolves conduct that has the effect of insulting or harming a specific person or people.
There are strong arguments as to why this kind of speech should remain legal and backed by the First Amendment—namely, to allow for all opinions, whether or not they are popular. This is understood as a foundation of American democracy. People may feel deterred from speaking their own point of view if restrictive hate speech laws and codes are in place, limiting the scope of discourse. Some don’t even believe that offensive speech can cause serious harm.
Hate speech should not fall under the protective umbrella of free speech. It incites violence and negativity, not civil discourse.
Permitting hate speech presents even greater perils to our democracy and safety. Contradictions in our legal code even reflect the danger of having no restrictions on speech by categorizing defamation as an illegal act. Defamation is defined as “the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, product, business, group, government, or nation a negative image.” How is it that hate speech (which denigrates a particular individual or group) may be made legal, while slander (which also portrays a particular individual or group in a negative light) is illegal? This reveals the deep contradiction in our conception of what free speech entails. One cannot credibly argue that disallowing hate speech will dissolve the foundation of our democracy in a political environment in which we already disallow and punish some types of speech.
Moreover, we cannot quantify the differences in harm between the two. There is little distinction between “unintentional harm” that one may associate with hate speech and the “serious harm” linked with defamation because no matter the intention, both types of speech cause damage. To some, hate speech may appear to be a divergent category of speech separate from slander, which conveys false and negative statements, where as hate speech is just someone’s opinion. But is the difference really that clear?
Last year former Assistant Attorney General Andrew Shirvell made vicious statements, “exercising [his] First Amendment rights,” against our then MSA President Chris Armstrong. Shirvell accused Armstrong of being Satan’s representative, a pervert, and a racist - all with no factual evidence. These statements are defamation, receiving no protection from the government. Shirvell’s speech, however, was protected under the First Amendment and the ACLU scolded the University for barring him from campus. So, how do we understand the difference between Shirvell’s statements as his own opinions (only as hate speech) rather than libel committed against Armstrong? In all honesty, there is no difference. Both should be banned.
If society continues to allow hate speech, a culture of negativity will only proliferate, impacting our global relations, domestic capital and general well being. Quality relationships are built on trust and the ability to share ideas without fear of being targeted because of one’s social or group identity. If we as a community cannot recognize the importance of this, we will continue to suffer. Organizations such as the United Nations and the European Union are based on an ideology of maintaining positive relationships. There is no surprise they have been successful in promoting world order and peace.
Studies have shown that a negative work environment causes expensive problems for organizations. A 2008 Gallup poll estimates that low productivity from 22 million “negative” workers costs the United States between $250 and $300 billion dollars every year. Maybe instead of blaming people of color, Jews, or homosexuals for the economic crisis in America, as many social radicals do, perhaps those participating in hate speech should only blame themselves for smearing pessimism and bitterness everywhere. It is time for citizens to exercise their right of free speech in a positive way and suppress hate speech parasites, slanderers, and the media for placing negativity everywhere.
The only reason that hate speech still exists is because the public tolerates intolerance. In this day and age, people are generally becoming more aware of the varying cultures of the world. Globally, we are becoming more tolerant and understanding. If we aspire towards peaceful relationships with one another, hate speech cannot be tolerated in any way. We must overcome our differences and disarm hate speech. We must cherish the fact that we are all human beings who have accomplished great things throughout history and who can achieve even greater things if we respect one another and work together.
About the Issue
Point author: Carl Cohen is a professor of Philosophy at U of M.
Counterpoint author: Christina Ley is currently a sophomore dual-enrolled in Screen Arts Culture and the School of Art and Design.
Edited by: Lexie Tourek, Rachel Blumstein and Melanie Kruvelis
Cover by: Bekah Malover