In the never-ending battle to preserve free speech, there is always good news and bad news. There are triumphs and setbacks. The struggle for liberty always encounters the will to power, and often the will to power is cloaked in terms of “compassion,” “justice,” and “equality.”
And so it is with the quest to censor so-called hate speech. First, let’s address the good news. Earlier this week the Supreme Court ruled 8–0 against the U.S. Patent and Trademark Office (PTO), which had refused to register a trademark for a band called “The Slants.” The PTO claimed that the band’s name violated provisions of the Lanham Act, which prohibits registering trademarks that “disparage . . . or bring into contempt or disrepute” any “persons, living or dead.”
As I wrote immediately after the decision, it would have been shocking if the Court hadn’t ruled against the PTO. After all, there are literally decades of First Amendment precedents prohibiting the government from engaging in punitive viewpoint discrimination, even when the viewpoint expressed is deemed hatred or offensive. Justice Alito made short work of the notion that the government has an interest in preventing speech that expresses offensive ideas:
As we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”
But not even a ruling joined by Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor can persuade determined, far-left censors, and just as sure as night follows day, Laura Beth Nielsen, a research professor for the American Bar Foundation, took to the pages of the Los Angeles Times to make the case for viewpoint discrimination. I’ve seen enough pieces like this to recognize the type. They always begin with misleading statements of the law, declarations that free-speech protections aren’t absolute, and then move to the core pitch — in this case, that the state should regulate hate speech because it’s emotionally and physically harmful:
In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.
This is the very close cousin of the “speech as violence” argument sweeping campuses from coast to coast. It’s the heart of the argument for the campus speech code — that subjective listener response should dictate a speaker’s rights. The more fragile the listener, the greater the grounds for censorship.
And there is no limiting principle. If “How does this speech make you feel?” is the core question, it incentivizes victim politics and overreaction. Robust debate triggers robust emotions, and robust debate on the most sensitive issues — issues like race, gender, and sexuality — trigger the most robust of responses.
Lest anyone wonder about the actual definition of “hate speech,” look to campus and liberal activist groups. At Evergreen State College in Washington, a progressive professor’s statement against racial separation and division was deemed so hateful that he couldn’t safely conduct classes on campus. Influential pressure groups such as the Southern Poverty Law Center label the Ku Klux Klan and other genuine racists “hate groups” but also apply the same label to mainstream Christian conservative organizations such as the Family Research Council. The SPLC has branded respected American Enterprise Institute scholar Charles Murray a “white nationalist.” Moreover, it’s far more forgiving of leftist extremism than of moderate speech that is conservative or libertarian.
In a stinging piece in the Wall Street Journal, Jeryl Bier notes the double standard:
Kori Ali Muhammad allegedly murdered three white people in California in April. The SPLC reports that on Facebook Mr. Muhammad wrote of “grafted white devil skunks” and repeatedly referred to the mythical “Lost Found Asiaiatic [sic] Black Nation in America.” Yet in contrast with its unequivocal (and false) tagging of Mr. Murray, the group describes Mr. Muhammad as a “possible black separatist.”
Got that? One of the Right’s most important scholars stands condemned, while a man who shot and killed three people is just a “possible” separatist. That’s the through-the-looking-glass world of the anti-“hate speech” Left. The definitions are malleable, but one thing you can count on — the Right will always lose.
Interestingly, the day before Nielsen’s call for censorship appeared in the Los Angeles Times, German police raided the homes of 36 people accused of hateful social-media postings. That’s where prohibitions against hate speech lead. Indeed, wannabe American censors often extol Europe as a model for their proposed American laws. Do you trust the government to decide when your viewpoint is unacceptable?
Left-wing censors discount voices like mine, claiming that it’s easy for me to pontificate on free speech while basking in my white privilege. Yet my family has been exposed to more vile and vicious rhetoric than most people will experience in ten lifetimes. Yes, it’s painful. Yes, it has consequences. But it is far more empowering to meet bad speech with better speech than it is to appeal to the government for protection even from the worst ideas.
To paraphrase Alan Charles Kors, co-founder of the Foundation for Individual Rights in Education, no class of Americans is too weak to live with freedom. Rather than indulging weakness and fear, activists left and right would do well to cultivate emotional strength and moral courage. The marketplace of ideas demands no less.