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The Scarlet & Black

An Unsolicited Opinion: On free speech


By Katherine Moody

The freedom of expression granted by the First Amendment has long been part of the United States’ origin story and mythos. But support for that right seems to be wavering. An April 2018 article in the Washington Post acknowledged that recent polls indicate that many young Americans are “leery” of free speech. The article references several polls including a 2017 survey by the Cato Institute, which found that 40% of Americans believe that the “government should prevent people from engaging in hate speech against certain groups in public.”

In the United States, hate speech is free speech. That is, the right to express hatred toward anyone, including any minority group, is protected by the First Amendment. However, it’s important to note that while some defend free speech by sanctifying it as part of the Founding Fathers’ vision for the country, the United States’ current rule of law regarding free speech is governed by the decisions of the United States Supreme Court.

The American Civil Liberties Union’s website notes that the precedent set in 1969 in Brandenburg v. Ohio is the standard by which we judge speech today. The ACLU notes that this standard, set when the U.S. Supreme Court overturned the conviction of a Ku Klux Klan member, protects speech that advocates violence. According to the ACLU, under the Brandenburg standard, “[s]peech can be suppressed only if it is intended, and likely to produce, ‘imminent lawless action.”’

This rule of law stands in contrast to that of many other liberal democracies around the world. Countries like France, Canada and the United Kingdom have restrictions that criminalize forms of hate speech, and it seems that a sizable number of Americans would prefer that the United States follow suit. This impulse is understandable. Those who defend free speech rights in the United States tend to speak about them as if the right to spew hate and advocate violence is the only thing stopping us from descending into tyranny, but Canada doesn’t seem so bad.

The Anti-Defamation League stated that every single extremist murder in the United States in 2018 had some connection to right-wing extremism. In 2017, there were more than twice as many murders committed by white supremacists in the United States than in 2016, and from 2007-2016, right-wing extremists committed 74% of extremist murders.

While the President of the United States does not appear to be worried about right-wing extremism, most people connected to reality are. The harm done to those targeted by hateful speech should not be underestimated or dismissed. This burden is disproportionately shouldered by minority groups frequently subjected to hate speech.

Taking this into account, should the United States follow Canada’s lead? With some hesitation, I say no. The more power the government has to protect people from speech, the more power the government has to censor and punish speech. While the burden faced by minority groups under free speech protections today is undoubtedly unfair, the questions is: can we trust the government to determine rightfully and responsibly what speech is acceptable?

A look at our current government and our country’s history does not inspire an optimistic answer. I agree with those who believe that our free speech law is the best way we can defend the rights of the vulnerable in the long term. While the “imminent lawless action” standard might seem unreasonably high, it protects the right to protest and to protest angrily. Without this standard, it would be much easier for the government to charge angry protesters with a crime.

First Amendment cases are frequently litigated because the government frequently tries to curtail free speech. It’s important to note that while free speech law offers equal protection to everyone, the United States Government has a long history of holding different groups to vastly different standards of behavior. A recent example, reported by The Hill in September 2018, was former United States Attorney General Jeff Sessions’ attempt to blame gun violence in Chicago on activism by Black Lives Matter and the ACLU, who opposed stop-and-frisk policing because it discriminates against people of color. A strong defense of First Amendment precedent allows for a strong defense of groups that are penalized more stringently than others.

In a 2018 interview, the president of the ACLU, Susan Herman, said “the whole idea of the first amendment is that it’s about the relationship between the individual and the state.” In the United States, where the government’s power to limit speech is weak, individuals have great power to determine public discourse. For this reason, in the United States, it’s the patriotic duty of each individual to exercise their free speech to effect positive change

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