Freedom of Speech When Americans

Freedom of Speech

When Americans think of what makes their country great, many will bring to mind the various freedoms guaranteed to them in the Bill of Rights. Among the most important is the so-called right to "free speech," protected by the first amendment to the U.S. Constitution. The text of the amendment reads, in part, "Congress shall make no law…abridging the freedom of speech, or of the press…." The writers of the Bill of Rights did not expand upon the nature of the freedom of speech, and for the past 200 years the Supreme Court, Congress and other local and state institutions have been deciding just how far-ranging that freedom is. The most famous restriction is that one cannot shout (falsely) "Fire!" In a crowded theater, from a 1919 Supreme Court decision. Other restrictions fall under the categories of slander and libel, which restrict free speech to protect other people's reputations and businesses (Larson). Certain kinds of obscenity have also been excluded from free speech protection, one Supreme Court justice famously that although it may be hard to define, but… "I know it when I see it" (Silver). One exception to the obscenity rule is if the speech has "merit." Today, the hot-button issues of free speech seem equally hard to define. Racial epithets, hate speech, and other kinds of degrading speech are protected by the first amendment, but how can one tell if such speech has "merit" and should be protected? In a Supreme Court case decided in March or 2011, this issue came to the forefront once again when the Court rules that the Westboro Baptist Church's protest at U.S. soldier's funerals, which include hateful, epithet-filled speech, is protected under the first amendment (Sherman). I agree with the court in this case, that the censorship of any American's speech should be infrequent and extremely rare, regardless of whether or not the speech is offensive and hateful. In addition, all forms of censorship, when necessary, should come from the Supreme Court, as they hold the responsibility for being the interpreters of the constitution.

The issue of protecting unpopular speech has been long debated. In 1989, Charles Lawrence wrote an article for the Chronicle of Higher Education on the debate over placing limits on racist speech. Lawrence argues that there are "very strong" reasons for protecting speech, even racist speech. Protecting racist speech, he argues, shows that as a society we hold tolerance as a value. In his view, that lack of government regulation will force our hands as Americans to come together as a community and fight the ugliness. In the case of Westboro Baptist Church, this has often happened. A special Patriot Guard has been formed by some motorcycle riders. They line the entrances to cemeteries and block the Westboro protestors from having a view of the family. When Matthew Shepherd was murdered for being gay, protestors, including Westboro, showed up at his funeral. Also on the scene were counter-protestors who wore giant angel's wings, shielding the mourners from the vile speech of the Church (Morton).

Lawrence's article was written in response to a spate of racist hate speech incidents on college campuses in the late 1980s. Campuses were, at the time, making various efforts ar regulating this harassing speech. As Lawrence saw it, however, the problem was framed incorrectly. The liberty of free speech was set in conflict with the elimination of racism. In Lawrence's view, this "placed the bigot on the moral high ground and fanned the rising flames of racism." Instead of focusing so much on the perpetrators, Lawrence advocates for more attention being paid to the victims of hate speech. The victims have been abandoned, he claims, and he has no appreciation for those who challenge every effort of universities to protect these students. His article seeks to strike the careful balance between free speech and the rights of the victims of free speech. In the past, free speech restrictions were seen only as a way to protect a reputation of a person or business. Slander and libel laws were not put into place because someone was offended by the speech of because someone's feeling were hurt. Navigating these waters is difficult. On the one hand, it is easy to see why the instinct would be to restrict offensive speech. What possible reason could there be to have it be protected? Wouldn't making it a legal offense serve the public good? Perhaps, but at what price? I agree with Lawrence that it should be a community effort, a community coming together to raise standards, that should be the prime "censor" of free speech. In some cases it has worked, as in the Westboro cases above, but there is also the risk that instead of squelching the speech, more people will be attracted to speaker's message. Unfortunately, this is the price we have to and the risk we must take to protect all kinds of speech. The dangers of the government restricting speech that is merely offensive but does not incite violence is the classic legal slippery slope. Prohibit one kind of hate speech that is "offensive" and then what happens when more middle-of-the-road speech is banned by the government? If we ban speech capriciously, all speech is in danger of being censored.

Lawrence recognizes that the real power comes in getting rid of the signs and symbols that point to the inferiority of different races, because these are the true enemies. In this vein, however, he argues that we should stop short of defending racist speech just because it does not escalate to violence. While University officials are being accused of being thought police for being so dictatorial about speech, Lawrence supports their efforts. Arguing that "racial insults are particularly undeserving of first amendment protection because the perpetrator's intention is not to discover truth or initiate dialogue but to injure the victim." The victims cannot fight back for fear of being charged with a crime of violence.

Lawrence is not advocating the full censorship of racist speech on college campuses. He recognizes that this kind of speech cannot be censored in public spaces where the listener can simply walk away. He does believe that dorms, as living spaces, should be free of this kind of speech. These restrictions fall under the purvue of previous court rulings that insist that all students have an equal right to education.

Unfortunately, I cannot agree with all of Lawrence's assertions about the dangers of racist speech. Minority groups do suffer pain as a result of racist and hate speech. No one denies that, regardless of which stance they take on censorship. However, what are the consequences to society for banning that speech outright? There may be no intrinsic value in the speech itself, but there is a value in upholding the idealism of free speech and unrestricted dialogue. Even though Lawrence sets up this kind of argument as a straw man which he knocks down, these arguments carry weight. Censoring the freedom of speech for racist groups also opens the door for censoring the speech of other groups, including minority groups themselves, who often have speech as the only weapon they can use to fight back. Also, I cannot imagine the legal minds who can formulate rules for censorship so precise that they can be effective. Either they will be too narrow and miss the intended target or too broad and censor speech no one had meant to silence. For the sake of the protection of all our rights, we should be unwilling to censor speech except in the most dire of cases, even when people are insulted or offended. Lawrence's assertion is that the pain is more significant for the victims is a powerful claim, but it does not tip the scales, in my mind, toward free speech restrictions. The examples that Lawrence cites of the supreme court acknowledging the psychic pain of racist speech also have other components to them. Yes, it was recognized that those who were proponents of segregation harmed their victims with speech, they also had intentions that went way beyond speech, including intimidation and threats of physical violence. Likewise the Civil Rights Act was not only about speech, although that fell under the umbrella of the act. The primary reason for the legislation was not to censor speech but to stop the action of discrimination. Laws that aim to merely censor speech fall into a different category, and I cannot help wonder if Lawrence would really support them.