How much free speech do we need?

The United States is a ‘dramatic outlier’ when it comes to the protection of inflammatory speech.

The US Supreme Court is seen in this Mar
If free speech laws in the United States are to be altered, the Supreme Court would need to face public pressure [AFP]

The tragic events of the past week have reminded us that freedom of speech can have deadly consequences. In the United States, many journalists, jurists, and academics believe that we must robustly defend freedom for the thought that we hate. This view is obviously not shared in most Muslim countries. But the current American stance on free speech is also not popular in other established liberal democracies, nor has it always been the prevailing wisdom in the United States. It is time to rethink the rationale behind America’s radical free speech absolutism that protects the promotion of hatred.

Reacting to the slaughter of American representatives in Libya, Secretary of State Clinton asserted, “There are, of course, different views around the world about the outer limits of free speech and free expression, but there should be no debate about the simple proposition that violence in response to speech is not acceptable.” That is true. Yet pivoting toward an emphasis on violence downplays the fact that the United States stands virtually alone on the world stage in permitting speech that deliberately provokes hatred along racial, ethnic, or religious lines.

The difficulty with banning the controversial film

Even Denmark, known for its commitment to wide open public discourse, has a longstanding law that forbids “threatening, insulting, or degrading” speech that targets people because of their race, skin colour, national or ethnic origin, faith or sexual orientation. Denmark declined to prosecute the journalists and illustrators whose 2005 portrayal of Muhammad led to major international protests and violence. But in the same breath, its Director of Public Prosecutions emphasised that it was simply untrue that religious groups had to be ready to put up with “insults, mockery, and ridicule”, as suggested by the Jyllands-Posten editor. As evidence of its standards, Denmark removed the broadcast license from a radio station whose announcer called for exterminating fanatical Muslims and pursued criminal charges against a politician who compared Muslims to a cancer on society that had to be cut out. Countries like Denmark have managed to maintain a firm commitment to freedom of expression while enforcing provisions against the most destructive forms of hate speech.

The United States itself has also restricted hate speech. The First Amendment of the Constitution seems categorical when it asserts, “Congress shall make no law… abridging the freedom of speech.” This injunction only applied to state and local laws starting in the 1920s, however, and even after that point, local, state, and federal authorities often disagreed over what types of inflammatory expressions were subject to restriction. Most significantly, in its 1952 Beauharnais decision, the Supreme Court upheld an Illinois state conviction of a man who publicly decried the “the aggressions… rapes, robberies, knives, guns and marijuana of the negro”. It is not a given that the United States Constitution protects aggressive racist speech.

The free speech stance that Americans now take for granted was a product of the Civil Rights era. At that time, a progressive Supreme Court sided with blacks against Southern jurisdictions that attempted to use speech restrictive laws to curb protest.

Americans now find themselves entangled in a system that was the product of a particular era and that no longer necessarily reflects its citizens’ values. According to First Amendment Center surveys from 1997 through 2008, a majority of those polled believe that people should not be allowed to say things in public that might offend racial groups.

Freedom of speech is a core liberal democratic value. It must be upheld even when words cause offence. And no amount of violence should intimidate the United States into changing its laws. But it is vital to recognise that America is a dramatic outlier when it comes to the freedom to express inflammatory, hatemongering, racist speech. In this regard, we are different from virtually every other liberal democracy; we are different from what we used to be; and we are different from what many Americans want us to be.

It will take a bold Supreme Court to change the current interpretation of the First Amendment. But Supreme Courts respond to public pressure. It is worth having a national debate about whether we want to protect aggressive speech designed to exacerbate tensions across racial, ethnic, and religious lines. It turns out that preserving the freedom for these thoughts that we hate may not be an American value after all.

Erik Bleich is Professor of Political Science and Director of International Politics and Economics at Middlebury College and is the author of The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism, published by Oxford University Press.