In part 1, I noted that hate speech appeals to emotions, not logic. One can possibly see the need for hate speech laws in the abstract if the speech leads to violent actions. But, the evidence for such outcomes is scant if existent at all. The gunman who shoots at an abortion clinic, for example, is likely not led there by hate speech. No one- even the most radical pro-life person- tells anyone to go out and shoot at abortion clinics. Unfortunately, some elements on the Left do actually and openly promote violence.
The goal of the Leftist proponent of hate speech laws equates words with actions. They seek to plant in the minds of the “vulnerable population” the belief that others do not want them around. Therefore, those thoughts thus planted are akin to action even in the absence of action. And the Left is good at phrasing their argument. However, one should be wary of what comes after the inevitable “but.”
For example, they will tell you that they are not advocating for laws that would punish speech that may be offensive to some, BUT hate speech is radically different. They will tell you that it is fine to criticize Islam, BUT we must be mindful of the dignity of Muslims. And the list of examples goes on.
Failing that argument, they will tell you that today’s interpretation of the First Amendment differs from previous interpretations in that it is more expansive. Therefore, regulating “hate speech” may not greatly upset precedent. As proof they offer up the Alien and Sedition Act 1798 and the Espionage Act of 1917 and its 1918 amendment. If that is the best they can do, they fail miserably since neither is a shining example in American history, nor are some of the prosecutions under those laws.
It is true that starting in the 1930’s the Supreme Court’s jurisprudence in this area began to take on a more expansive, liberal view of free speech. However, an argument can be made that prior to the 1930’s the Supreme Court largely got it wrong and the current interpretation is the better of the two. Yelling “fire” in a crowded theater is the best example they offer up followed by speech restrictions in the areas of consumer product safety and libel/slander laws. In those cases, we are dealing with business regulation and speech directed at public figures, not whole groups of people whose feelings may have been offended.
During her confirmation hearings, it was revealed that current Supreme Court Justice Elena Kagan had written an academic paper that best encapsulates the Leftist strategy on the legal front. Noting that banning speech some may get you labeled a First Amendment tyrant, she instead suggested that words that may be “harmful” or “fighting words” could be used. More ominously, she noted that words that did not offer a “contribution to social deliberation” could likewise be possibly banned. In other words, to create a more equitable society in the view of the Leftist, government censorship may be the best strategy.
And this extends to symbolic speech. The Supreme Court has ruled twice now that laws which prohibit the burning of the American flag are protected symbolic speech. They likewise have ruled that the burning of a cross is symbolic speech and thus protected. It is only when it is used as a means of intimidation that it loses its protection. If someone burns a cross on the front lawn of an African-American neighbor, that is clearly intimidation. But, if a bunch of KKK members dress in robes in the woods and burn a cross, that is clearly not intimidation. Likewise, the burning of a flag is symbolic hate speech- hatred against the American government and way of life- yet it is protected and rightfully should be. It is, because of the First Amendment the Left wants to eviscerate, what sets this country apart from other democracies.
We have an example in American history which provides an analogy to the current circumstances. It illustrates that the logic and thinking of the Left today is really no different from that of the antebellum South in the 1800’s. John Quincy Adams was an ardent opponent of the House “gag rule.” So as not to offend the South, anti-slavery petitions were banned in the lower chamber. To introduce such petitions was an affront to the dignity and honor of the South. One could say that Southern legislators were “triggered.” In effect, the House of Representatives became one big “safe space” for Southerners. And by Adams drawing attention to “slave power” or the more proper “peculiar institution,” he was effectively engaging in a microaggression against the South. In effect, Adams “trolled” the Southerners in the House.
What is so different from the mindset and logic of the Antebellum Southerner in the 1800’s and today’s social justice warriors? Today’s youth and millennials have been raised to understand that signaling their virtue is the way to end debate. Deviation from the accepted standard is met with the acronym STFU. Justice can be secured only when debate has been shut off and contrary views are squelched.
Adams’ actions elicited unhinged reactions from Southern representatives. Along the way, he stiffened northern opposition to slavery. More importantly, he demonstrated how the hate speech charge is really just an excuse to stifle free and open debate about a subject that would eventually tear the country apart. John C. Calhoun in 1837 said the Northern “aggression” was one of moral and intellectual opinion. In the Senate, Preston Brooks was “triggered” by a “hate speech” by Charles Sumner so badly that he beat the latter to a pulp. If not for the hate speech as the South viewed the words of Adams, there would have been no Abraham Lincoln.
These actions are very much like those of today’s social justice warriors who do not target Senators with canes, but pizza shop owners and florists for action because the views of these business owners do not mesh with their’s.
It is all well and good to revisit history and criticize our Founding Fathers for their perceived hypocrisy when it came to slavery. Washington, Adams, Jefferson, Hamilton, Madison, John Marshall and others knew that slavery was inherently wrong. It would have to be abolished at some point if the Nation was to live up to its founding principles enshrined in the Declaration of Independence. They also had the wisdom to realize that to address the issue at that precipitous time around 1787 would tear the country apart and there would be no United States of America.
Thus, they argued that the dismantling of slavery should proceed slowly and cautiously- or, conservatively. Their view is not far off the mark from that of Martin Luther King, Jr. who centuries later viewed the Declaration as a “promissory note.” What is not a promissory note, however, is the Constitution and the Bill of Rights. And within that very first amendment is the right to free speech- printed, spoken, recorded and symbolic. Hate speech laws make those words meaningless and it is then when democracy suffers.