“Suffer you mother-*#&@%<~ son-of-a-!%*&$. I hope you rot in Hell.” Not a nice thing to hear. Especially if you're being kicked at the same time. It's assault, and it's punishable as such.
But what about “I pray that you are forgiven.” Said to a homosexual, as the speaker knocks the wallet from his hand while he is preparing to make a contribution to an LGBTi charity, it's hate speechii and it may also deemed assault,iii but more than that, because of what was said, in this instance it's also a hate crime.
The First Amendment, it seems, has become a framework for various pressure groups to use when promoting their aims. Thus:
“In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court.”iv
Free speech had to be protected irrespective of the consequences, but in an age of diversity and multiculturalism
“Islam and Freedom of speech has become a contentious issue in recent times. The limits of what is, and what is not, acceptable speech is becoming a new battleground between Islam and the west. The issue came to a head in September 2005 a few days before Ramadan when the Danish newspaper Jyllands-Posten printed insulting and blasphemous cartoons of our noble Prophet.”
That statement, and its explication of “acceptable speech,” as printed in the blog of Caliphate Online, doesn't come as much of a surprise. The fact that important American publications refused to publish those cartoons, however, is a little more troublesome. Although there are loud protests whenever their own actions are criticised, and accusations that other parties would abridge their First Amendment rights, “Major American newspapers, including The New York Times, The Washington Post, The Los Angeles Times and The Chicago Tribune, did not publish the caricatures. Representatives said the story could be told effectively without publishing images that many would find offensive.”v They chose, in this instance, to practice self censorship. Free speech was less important than not offending others. Sensitivity was the prime consideration in reporting this piece of news. When it comes to expressing editorial policy, however, the same papers are not at all reticent about stating views that many will find offensive. First amendment rights and free speechvi are for those who can afford it, and they can exercise it whenever they choose to do so. And, as they have demonstrated, they can eschew it whenever they choose to do so. Notwithstanding any protestations of virtue and concern, their agendas seem to reflect politics rather than sensitivity.
And some publishers had other motives. “John Donatich, the director of Yale University Press, said the press has a long history of defending free expression, but the risk of violence in this case, outweighed the benefit of including the images, which can easily be found on the Internet.”vii The same fear of violence motivated other publishers to take the same course.
“Congress shall make no law ... abridging the freedom of speech, ... ” That was the take on speech in 1789viii But that has since been viewed as more a theory than as an appropriate reality. Though the Constitution said nothing about judicial interpretations of that or other mandates, nor about legislative measures that respond to the Court's decisions, it's clear that the First Amendment (as well as the remainder of the Constitution and its amendments) is flexible.ix It shouldn't be taken too seriously. It's not an absolute. It is more important that we not risk the possibility that emotional harm that might come to anyone who is in a preferredx group. That, of course, is not everyone, as the ACLU has shown.
And the definitions of “free speech” and one's First Amendment rights are also somewhat fluid. They include both the requirement that one be able to express his views, even if othersxi may find them hateful, and that he be able to prevent those othersxii from expressing theirs. It may not be clear from a simple reading of the Constitution that these “rights” exist, but executive, legislative, and judicial practice reflect the fact that they have a significant presence in the American ethos. Surely they're in the Constitution. How could it be otherwise? If we haven't found them, we haven't looked hard enough.
We are left with a language of sensitivity and euphemisms. We are reluctant to “call a spade a spade.” So we deny the language we learned as children and substitute code words when we suspect precision will cause discomfort (without always asking those we see as “victims” whether they agree). Later, however, we'll have to substitute other code words when we feel that the ones we have been using have taken on the pejorative tone at which we cringe.xiii We practice self-censorship and the censorship of others with whom we disagree. And if we cannot censor, we punish. Somewhere along the line “hate speech” has become more offensive than any crime it might accompany. And the ACLU seems to take note only of certain “offenses” while ignoring others. It is clearly inappropriate to defend those who would insult Muslims, blacks, homosexuals, or others who might be offended. That would show a lack of sensitivity for their feelings, and the Constitution certainly shouldn't protect that. But if Nazis want to affront Jews or others, stopping them would be in violation of the same Constitution.
I know it's wrong of me to think so, but from my perspective there should be a single standard – either all speech designed to express opinion is permissiblexiv or it isn't. If the latter position is to be adopted, then it should apply to every instance in which an individual takes exception to what is being said or done. It should not be made the rule only for some preferred people of groups. But in any case, I don't think that was the intent of the Founding Fathers. If the media are free to express opinions, so are individuals. And a crime is a crime. It is the crime that should be prosecuted, irrespective of the motive. If the opinion of the perpetrator is the decisor of the significance of the crime, we have lost the freedom to form our own opinions, and the Constitution and Bill of Rights are meaningless. However attractive that may be to many among us, we will all lose by it. “Acceptable speech” is not acceptable.
Next episode: “Mom, Pop, And Jack The Killer Giant” – Burnt fat and me.
i Lesbian, Gay, Bisexual, Trans-gender.
ii The previous declaration, since it mentions “mother” and “son,” clearly expresses family values and represents a statement of love, not hate.
iii And it's probably a few other crimes as well.
v U.S. Says It Also Finds Cartoons of Muhammad Offensive, Joel Brinkley and Ian Fisher, New York Times, February 4, 2006
vi Ditto propaganda.
vii Patricia Cohen, The New York Times, August 12, 2009. The view, apparently, was that others should take any risks involved. Yale was playing it safe.
viii That's when the Bill of Rights was submitted to the new states. It wasn't ratified until 1791.
ix I'll comment on the Judiciary in a future essay – a continuation of the ongoing series on proposals for changes in the Constitution.
x Read “minority,” although that is a political, not a mathematical term.
xi Who are not in one of the favored groups.
xii See note x. It is permissible, indeed appropriate, to shout down those who would espouse a contrary view.
xiii I recently heard on the radio about a politician who was taken to task for using the word “disabled.” Some felt that this was too harsh. Presumably they preferred “differently able” or “challenged,” but the individual who had been careful not to specify the disability (lest it be considered insensitive) was berated.
xiv Holmes's exception for speech intended to cause danger – he mentioned “fire” in a crowded theater – however, makes sense. I'd also make an exception for speech (or publication of material) that threatens pubblic or national security. Some governmental secrecy is necessary if we are to be able to deal with other nations.
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