State of the Debate || Should Free Speech Protect Racist Hate Speech?

As a Leftist in the United States, I am concerned about the power and influence of right-wing, racist, authoritarian groups and their ideas. Recent years have seen a spike in hate crime cases1, while recent news reports have indicated that the Klu Klux Klan and other racist, white nationalist groups have secured positions in state and local police departments.2 Far-right groups have taken over federal buildings, murdered protesters, and plotted to murder more.3 The march in Charlottesville, Virginia; the murder of parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina;4 and police violence against unarmed black men and women are all causes of immense concern. They demand serious legislation, changes in cultural attitudes, marches, peaceful protests, dialogue, community building, boycotts, and more. Black lives matter.

It is hard to imagine a society in which both black lives matter and racist and totalitarian groups are permitted to rain torrents of hatred down in forums online and off. How can black and brown children feel safe going to school if they are subjected to racial taunts and slurs from their peers? How can African-Americans participate in public discourse if they are threatened with lynching, just because of the color of their skin and their audacity to speak out? It seems, indeed, obvious that “a society that hates racism would not permit it to flourish,”7 even if that means restricting the legal speech of racist and totalitarian groups. Indeed, the defense of “free speech” rings hollow in the dead ears of George Floyd, as much as it did in the murdered ears of Emmett Till. The First Amendment provided nothing to the hundreds of thousands of African-American slaves, and little more to the sharecroppers of Reconstruction. To the thousands of lynching victims, what can be said about free speech?

Yet, at the same time as we condemn contemporary racism and seek to address the historical injustices of slavery, Jim Crow, and mass incarceration, we should not forego a support of broad free speech protections, even for those groups that refuse to condemn, even glorify, such barbarity.

The history of addressing racial injustice in America is a history of struggle, of which free speech forms an important part. The modern Free Speech Movement began on the Berkeley campus of the University of California when anti-segregation activists sought to distribute fliers to fellow students. They were denied the ability to flier where they wanted, in an area of high student traffic. Instead, the school administration forced them to the edge of campus, where their message would be dulled. The students refused and began to flier where they wanted anyhow, prompting the police to attempt to arrest them. Nearby students surrounded the police vehicle and sat down around it, until they agreed to release the arrested students. Later, one of those students, Mario Savio, would give his famous speech on the steps of the administrative building, Sproul Hall, in which he called for opposition to the establishment “machine.”

It was not merely white allies of the Civil Rights movement that used free speech to support the cause. In 1961, in Louisiana, students from Southern University were arrested for picketing a segregated restaurant.5 During protests against their arrest, a minister named B. Elton Cox urged the audience to participate in a sit-in at the segregated counters. The crowd was dispersed by tear gas and Cox was arrested. His case made it to the Supreme Court of the United States, in Cox v. Louisiana, ultimately resulting in Cox being freed and limiting the ability of the police to arrest peaceful protesters. In 1963, African-American students marched on the South Carolina state house to make peaceful demands of the state government.6 They were told to disperse but refused to do so and were arrested. The case once again made it to the Supreme Court in Edwards v. South Carolina, which resulted in the protesters going free and a reduced ability for police to disperse peaceful protests. In both cases, one of the major precedents was Terminiello v. City of Chicago, a case which defended the free speech rights of a racist, Catholic priest.7

To take a more contemporary example, the American Civil Liberties Union (ACLU) of Virginia came under intense criticism for defending the right of far-right organizers to protest in Charlottesville. In particular, the ACLU wanted to defend their right to have their protest at a particular statue, while the city police wanted to move the protest somewhere else they felt would be more manageable. After the violence there, the ACLU was partially blamed for the violence, even by then-Governor Terry McAuliffe. The Governor would go on, over fear of similar violence at a protest at a different statue in Richmond, to implement a new executive order. This order empowered the Governor to set a curfew at the Richmond monument – a statue of Confederate General Robert E. Lee – and enabled the police to disperse any protesters. That very executive order has recently been used by now-Governor Ralph Northam to disperse anti-racist protests at the Lee monument in the wake of the murder of George Floyd.

The legal benefit of broad free speech protections – those covering racist and anti-racist groups – is not merely that convictions are overturned, but that a new precedent is set that protects anti-racist groups in the future. This is important to bear in mind when considering the nature of free speech discourse. Those defending free speech may be dishonest actors wrapping odious beliefs in an insincere blanket of Constitutionality. They might be special pleading aficionados, concerned about free speech only when it impacts their cushy lives and jobs. But what matters for those of us committed to anti-racist actions is whether or not we have good reason to defend free speech, regardless of whether or not discourse about free speech is often a tool of the powerful. Given the utility of legal free speech precedent, it seems to me that yes, an anti-racist world can be one in which the speech of racist and totalitarian groups is legal.

The international context does bear consideration here. After all, America has a uniquely broad legal protection for free speech, and a uniquely high support for free speech publicly. Every other country has more restrictive laws regarding obscenity, association, hate speech, lese-majeste, and libel. International law provides for instances in which free expression may be justly limited. They are described in Article 19 of the International Covenant on Civil and Political Rights:

1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.8

Furthermore, relevant to our consideration here, speech can be restricted for the purpose described in Article 20

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

The First Amendment of the United States Constitution provides no specific instance in which free speech may be restricted, although the Supreme Court has found some restrictions on libel (“respect of the rights or reputations of others”) or regarding time, place, and manner (rather than content) of speech (“public order”) to be constitutional. However, the court has not generally found that speech advocating “national, racial, or religious hatred,” or “hate speech,” can be constitutionally restricted. Perhaps, it can be argued, that the only reason the legal strategy of establishing broad free speech protections is successful is because of the way the First Amendment is written. That is, such strategy is limited to the United States. If this is so, then there is a case to be made that it is the First Amendment or legal precedent that ought to change – that we should have our own Article 20. After all, if other countries have such restrictions, and they work there, then the examples of American jurisprudence are merely accidental, rather than a necessary outcome of the way free speech laws must work.

One instructive case to consider here is the recent expansion of the United Kingdom’s 2000 Terrorism Act. Initially designed for national security purposes, the law empowers the Home Secretary and Parliament to ban membership in certain groups altogether. At first, only militant Islamist groups were banned, but in the last two years, a few far-right white nationalist groups have been banned as well. The ban on one group, National Action, resulted in the trial and conviction of four members in June of 2020. So far, this law has not been used to target any left-wing or anti-racist groups. Still, the potential for abuse is there – and has been hinted at by prior, controversial applications of the law. Several high-profile cases involving the abuse of this same law include the arrest of two university students who were arrested under the same clause for materials they downloaded for class, and the detainment of a noted socialist and peace activist MP for shouting “nonsense” during a speech. Several of the laws sections have been invalidated as violating human rights by the European Court of Human Rights, such as those giving the police wide latitude to detain someone without bringing charges against them. Such a law would likely be unconstitutional in the United States – of particular relevance to the current situation in Portland, Oregon in which protesters have been detained in unmarked vehicles without charges filed against them merely for participating in anti-racist protests there. As this international example shows, the promise of stricter legal enforcement against the First Amendment rights of racist groups, comes with severe pitfalls for anti-racist groups.10

Laws intended to target hate speech can also be written too broadly and end up creating incentives to censor far more content than just hate speech. An example of this is the “NetzDG” laws recently passed in Germany. The law requires Facebook, Twitter, and other social media companies to remove “manifestly illegal” content within 24 hours. This included defamation, certain forms of insult, Nazi symbols, and other types of speech. Because the law only provided penalties for not removing content, companies were heavily incentivized to remove as much speech as possible that may conflict with the law. By granting the power of censorship to private entities, the law risked dramatically increasing censorship against speech of all kinds, including satire. The actual impact of the law has so far been unclear. Despite requiring companies to publish regular transparency reports about actions taken on their platforms, the lack of specific information on cases and the lack of consistency in reporting requirements, make it difficult to assess the full threat of the law to free speech. Still, the concern remains that such broad restrictions on the free speech of hate groups will come around to harm those the law intended to protect.9

This is not to say that free speech, or speech at all, is, by itself, a solution to racism. There are notable limitations to the “free speech precedent” strategy. Free speech protections alone are not sufficient to guarantee the victory of anti-racist protesters. Civil disobedience and boycotts are essential tools in any protest arsenal, as are electoral politics and community building. Such protections are often reactionary, and take extensive court battles to secure and defend. Victories are often narrow. The same law in question in the Terminiello case was in question in the Cox case, just in a different application. A key argument for free speech protections is that censorship laws end up targeting more than just the group they were designed to target – as the case regarding the Virginia ACLU and the 2000 Terrorism Act show. Yet, there is no guarantee that such laws will actually be expanded in such ways, nor that they won’t, on balance, more greatly limit racist rather than anti-racist groups. History can only show the frequency that such an expansion of even the most well-intentioned laws occurs. Perhaps, given the international context, there is room for the United States to move its speech laws a bit closer to the international norm, though to what extent and how I do not know. Given these limitations, an uncritical boasting of the “principle” of free speech seems unwarranted.

The matter of the free speech rights of racist and totalitarian groups also becomes murkier when one moves away from debating legal precedent and into other realms. How much freedom of speech should they have on private social media platforms like Twitter or Facebook? What sort of speech should be tolerated in the school classroom? What about in school instructional materials for English or History classes? These further questions require more thorough responses, and cannot be answered merely on the basis of legal precedent.

It remains true, however, that the broad protections offered by a century of legal battles around the First Amendment have been useful to anti-racist activists. And the evidence indicates that the price of enduring racist speech is outweighed by this protection.