In today’s Academic Minute, Dr. Corey Brettschneider of Brown University explores American society’s ongoing struggle to minimize hate speech while preserving the First Amendment.
Corey Brettschneider is a professor of political science at Brown University where he teaches courses in political theory and public law. He is also professor, by courtesy, of philosophy at Brown and in 2012 he published,When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality. He holds a Ph.D. from Princeton University.
Dr. Corey Brettschneider – Hate Speech and Free Speech
“If all mankind minus one were of one opinion,” wrote John Stuart Mill, “mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” This perspective reflects the exceptional American commitment toward free speech enshrined in the First Amendment and the subject of so much controversy today.
In American jurisprudence, although threats can be banned, viewpoints cannot be. Thus even hateful ideologies enjoy equal rights of expression. Think the Ku Klux Klan’s right to burn a cross during a rally, or the Nazis’ right to march in Skokie, Illinois.
But recent academic debate has challenged the American exceptionalist approach to free speech. Political theorist Jeremy Waldron, for instance, argues for limits on hate speech that degrades minority groups. Much of the world beyond American borders grounds Waldron’s position in law by banning the hate speech America permits.
Although John Stuart Mill opposed laws limiting the expression of opinions, he also hinted at a third way of thinking about hate speech that avoids simply protecting or banning it. Mill emphasized the importance of citizens persuading one another on behalf of equality even if law protects the rejection of this value. He demonstrated how equality underlies free speech rather than opposing it and how persuasion can be necessary to protect equality.
We defend free speech in a democracy precisely because we value citizens’ decision-making capacities equally. It is often important not only for citizens to speak out for equality, but also for the state to take a stand. This responsibility is realized when government officials give voice to the state’s own values by criticizing protected hate speech.
In accord with these seemingly paradoxical state duties, the State Department recently offered an example, in a denunciation of the anti-Muslim video, “Innocence of Muslims,” of how we can both protect hate speech and condemn it. I suggest in my recent book that groups such as the homophobic Westboro Baptist church should be protected but that there should be official state criticism of that group’s continual hate speech against gays.
While to speak without fear of punishment is fundamental in democracy, so too is the government’s role of speaking in favor of the ideal of equality that underlies this right.