Re-posts: On Hate Speech (October 2017)

Hello! This is a series which I re-upload a number of selected writing assignments I’ve done during my university years to both share them with the world (after some edits here and there, of course) and archive some of my most memorable ones. Enjoy.

The red banner of the US Confederacy flew in the Summer breeze and by its side, were a variety of re-imagined designs of the Nazi Germany Swastika flags. Neo-Nazis, white supremacists, nationalists, racists gathered amass in one of the most controversial demonstration in recent history of the United States. This was the sight of Charlottesville, Virginia in August 2017.

After the Charleston church massacre in 2015, an act of terror by a white supremacist, a series of nationwide Confederacy statue removals began to take place. The city of New Orleans was the first to do so in May 2017, followed by the city of Baltimore, Lexington, and Charlottesville a couple of months later. In opposition to the removal of the statue of the famous Confederate army commander, Robert E. Lee, the Unite the Right rally was gathered in Emancipation park, Charlottesville. The following results include violent clashes between the local counter-protesters, the police forces and the white supremacist group, a vehicle-ramming attack, and consequently, the declaration of state of emergency by the governor of Virginia before the complete disperse after two days.

However, despite how the event was finally resolved, an intimidating message has already been sent towards the public and especially, the American minorities, Jews, Muslims and the African-Americans communities. Some of the Unite the Right marchers chanted racist and anti-Semitic slogans like “One people, one nation, end immigration” and “Jews will not replace us,” before turning to downright slurs and insults at the end of the protest. Widespread fear and hatred are undoubtedly some of the most critical damage done by the demonstration. In addition to President Trump’s failure to condemn the white supremacist groups in his public statement regarding the conflict, the Alt-right became increasingly emboldened in its radical use of hate-induced free speech while the concerned American public began to look for order and retaliation. Thus, the grand debate over the American style freedom of expression, hate speech, and censorship riddled the national headlines once more.

With said context, this essay will now provide constructive arguments as to why the author believes that the legal protection of free speech in the United States is designed to prioritize maintaining the openness of public expression rather than the decency or respectfulness of the expression. It is impractical and deemed politically dangerous, especially in the United States’ extremely divided political nature to enforce such restrictive law on a vague yet highly essential right. However, a balance is still needed to be struck for the sake of civil discourse, academic and scientific researches. For reasons provided in this essay, the author would like to suggest a ‘fight fire with fire’ strategy and encourage the majority to engage in counter-speech, counter-demonstration and constructive anti-hate arguments of their own through social campaigns instead of pursuing juridical upheaval to implement censorship thus, ending the conversation completely regardless of how hurtful the content may be.

Unfortunately, the possibility of lawfully censoring hate speech or any kind of speech at all is dim from the start. In a historical remark, the United States Bill of Rights, the First Amendment to the United States’ constitution have been acting as a groundwork for the nation’s free exercise of religion, the freedom of speech, the freedom of press, the right to petition, and the right to peaceably assemble ever since 1791. Every change to the principle have always been additions or extensions of the its protection and never any restrictions. If hate speech is to be removed from the revered first amendment and enforced, strong opposition, the debate of governmental authoritative rights, and the upheaval of the American belief are to be challenged along with the law, rendering the change to be unfeasible. While hate groups such as what made up the Unite the Right rally in Charlottesville will oppose the proposal due to how the law is fundamentally being used in their favor, larger academia non-profit organization such as the American Civil Liberties Union (ACLU) would undoubtedly act against the change as well due to its commitments and ideology. The elements of the underlying complexity of any restrictions regarding speech and expression in the end boil down to the handling of two subjects, definition and enforcement.

Hate speech is speech which attacks a person or group on the basis of attributes such as race, religion, ethnic origin, sexual orientation, disability, or gender.” (Nockleby, 2000)

Along with the advent of the Internet and the information era, the line between a harmless joke, comedic parody, reference or recreational statement and hate speech became more and more blurry. One person’s acceptable ‘dark humor’ might be an outright discrimination to another and when hundreds or thousands of people are accessible to the exact same statement via social media, a never-ending controversy would be inevitable. Holocaust imagery, ISIS footage, 9/11 acts of terror, mass shootings, these tragic moments in history have all been used as a source for an abundance of ironic retelling in forms of Internet memes and reaction images which have occupied the culture in the many corners of popular Internet forums and social media since the dawn of Internet and they’re certainly here to stay. Despite their mutual core function to offend others, it is arguably impossible to detect and tell apart between those who simply had fun pretending and those who unironically assume the jokes’ dangerous agenda given that the government and law enforcement must have the ability and power to spy the user’s private browsing data en masse in the first place as well.

On the other hand, European countries like Britain and Germany consider hate speech forbidden by law as well as other means of gestures which incite violence or prejudicial action against a protected group or individual on grounds of intimidation.

“In the law of some countries, hate speech is described as speech, gesture or conduct, writing, or display which is forbidden because it incites violence or prejudicial action against a protected group, or individual on the basis of their membership of the group, or because it disparages or intimidates a protected group, or individual on the basis of their membership of the group. The law may identify a protected group by certain characteristics.” (Kinney, 2008)

And the enforcement of such laws is often categorized by the target of the offense.

“Hate law regulations can be divided into two types: those which are designed for public order and those which are designed to protect human dignity. Those designed to protect public order require a higher threshold to be violated, so they are not specifically enforced frequently. Those meant to protect human dignity have a much lower threshold to be violated, so those in Canada, Denmark, France, Germany and the Netherlands seem to be frequently enforced.” (Bell, 2009)

By this standard, the citizens’ rights to express themselves will fall under the jurisdiction of the state. While the European governments have been tame regarding their enforcement of speech and expression, in June 2017, a series of 36 police raids over accusations of social media hate in Berlin has raised both perceived public safety and paranoia. According to an article by The New York Times, the social media users are subject to a range of punishments for posting illegal material, including a prison sentence of up to five years for inciting racial hatred under German law. In 2015, France’s highest court ruled that a group of pro-Palestinian activists violated the restrictions against hate speech by wearing T-shirts portraying messages in advocating of boycotting Israel, “Long live Palestine, boycott Israel.” The activists then faced a fine of up to $50,000 or imprisonment for provoking discrimination, hatred or violence toward a person or group of people on grounds of their origin, their belonging or their not belonging to an ethnic group, a nation, a race or a certain religion, reported The Forward, a Jewish-American news outlet. The ban against hate speech is a powerful option to maintain peace and public order but such control in the hand of the state could bring about a slippery slope unto media suppression, chilling effect, and power abuse.

Despite how the odds are undeniably slim for the supporters of legal crackdowns on hate speech in the United States, there are ways to combat the terrible side of free speech without the European rulebook. Fortunately, the most egregious and harmful forms of hateful speech such as threats and incitement to violence are already regulated as unlawful “fighting words” or a form of a breach of peace which is considered unconstitutional and unprotected by the first amendment under the Chaplinsky v. New Hampshire ruling. It was based on the idea that such language did nothing to further public discourse, and instead inflicted harm on people. Thus, what’s left propping up the hate groups’ rhetoric are arguments and hopefully civil discourses and that’s where the citizens must take up their signs, speakers, social media pages and websites, and exercise their own part of free speech.

“The central principle of the First Amendment — and of academic freedom — is that all ideas and views can be expressed. Sometimes they are ideas and views that we might consider noble, that advance equality. Sometimes they might be ideas that we abhor. But there is no way to empower a government or campus administration to restrict speech without allowing for the possibility that tomorrow, it will be our speech that is restricted,” said Erwin Chemerinsky, an author of the book, “Free Speech on Campus” in an interview with The New York Times.

Under the laws of the United States, public expressions are merely mediated. The outcome or the content they produce are a matter of the people who will have to strike a balance between a society that champions freedom of speech and a society which leave its members vulnerable to discrimination and intimidation. Therefore, it is highly important to inform and educate the mass of said responsibility to their fellow citizens, and the fact that the American freedom of speech is by no means an armory of the likes of the Charlottesville far-right groups but an encouragement for everyone to speak out and march against hate. On May 13, 2017, white nationalist Richard Spencer led the ‘Take-Back Lee Park’ rally, a protest in Charlottesville against the city’s plans to remove the statue of Lee. The event involved protesters holding torches near the statue. That same night, a candlelight counter-protest took place. On the 8th of July, a Ku Klux Klan rally was held in Charlottesville under the same goal but only 50 Klan members showed up as opposed to approximately 1,000 counter-protesters. The Unite the Right rally was largely countered by both the locals and anti-racism organizations and while hate speech will never be completely eradicated from the United States or anywhere else in the world, the people will always be there, using speech to create a better society.

Beans juice enthusiast and feline management expert. Currently in Bangkok, Thailand. My opinions are my own.