Ian Boyne | Should racist speech be free?

One of the issues that have again resurfaced in light of the Charlottesville uprising is whether the white supremacists and neo-Nazis should have been granted the permit to march in the first place and whether people should be free to engage in racist speech.

No one is making any fuss or claiming that the organiser of that demonstration who was shouted down the following day and had to be rescued by police after attempting to hold a press conference had his constitutional rights trampled. It is taken for granted that racist speech should not be allowed. It is certainly reprehensible and grossly offensive, but should it be banned?

The American Civil Liberties Union has been defending the right of the white supremacists to have their march to chant their anti-Semitic rhetoric. The ACLU staunchly defends First Amendment free-speech rights even in cases where that speech is obnoxious and would easily be classified as hate speech in Europe and Canada. (As well as on many American university campuses, ironically.)

Europe and Canada are far more restrictive with speech. In Belgium, a member of parliament was found guilty of a crime for simply distributing leaflets urging people to "stand up to Islamification of Belgium". In England, a man was similarly convicted for carrying a poster that read, 'Islam out of Britain - Protect the British People'. These convictions were upheld by the European Court of Human Rights.

 

Criminal speech

 

In Canada, when one religious zealot became incensed that schools in Saskatchewan were about to teach about homosexuality, he placed flyers in mailboxes, stating, "If Saskatchewan's Sodomites have their way, your school board will be celebrating buggery, too." His speech was deemed criminal and in violation of a statute that forbids any expression that "ridicules, belittles, or otherwise affronts the dignity of any person or class of persons".

The Supreme Court of Canada flatly rejected First Amendment-type arguments given in defence of free speech. The court reasoned in a way similar to the manner some learned attorneys and human-rights advocates have been arguing against offensive free speech: "The speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.

"Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy."

The court said further that "the benefits of the suppression of hate speech and its harmful effects outweigh the detrimental effect of restricting expression which, by its nature, does little to promote the values underlying freedom of expression".

I have read the best scholarly defences of free-speech restrictions and I remain unconvinced. I think free-speech libertarians are on good grounds in advocating for the right of offensive speech. I stand with American over the European and Canadian jurisprudence on this matter of free speech. Racists, anti-gay bigots, Islamophobic, anti-Christian people must have the right to offend, though not to directly incite violence. I reject the view that purely offensive, bigoted speech is necessarily an incitement to violence. In a democratic society, even crude, repulsive ideas have a right to existence and expression.

There is the famous case of the Westboro Baptist Church in America, known for its virulent anti-gay rhetoric. While Americans were mourning over the deaths of their soldiers in Afghanistan, that church was saying America was being punished for its tolerance of gays. Members mounted demonstrations with placards that read, 'God Hates Fags', 'Fags Doom Nations', and 'Fag Troops'. The case reached the Supreme Court.

In that Snyder v Phelps case, the court concluded: "While these messages may fall short of refined social or political commentary, the issues they highlight - the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military - are all matters of public import ... . (The) speech is fairly characterised as constituting speech on a matter of public concern."

Then the court made a pivotal point that sharply conflicts with the thrust of hate-speech legislation and the aversion of many to offensive speech: "Such speech cannot be restricted simply because it is upsetting or arouses contempt." Racist speech is contemptuous and vulgar. Free citizens must judge and censor such speech, but free-speech libertarians would insist that it should not be criminalised.

In Poland, it is a criminal act to cause "offence to religious feelings". In 2010, a singer was convicted for giving "intentional offence to religious feelings" for saying that she believed "more in dinosaurs than the Bible". And in that country, which produced a recent Pope, a rock musician was accused of that crime for calling the Catholic Church "the most murderous cult on the planet".

 

Balance free speech

 

I like the contemporary American jurisprudential rejection of the view of "balancing free speech against social costs". In United States v Stevens, the Supreme Court rejected a view proposed by the Government that would balance free speech against supposed societal costs. The proposed statement was as follows: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."

The court ruled instead that the test was "startling" and "dangerous" because "First Amendment guarantees of free speech do not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. ... Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

I fully concur with Supreme Court Justice Robert H. Jackson, who said in 1945: "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, religion. In this field, every person must be his own watchman for truth because the forefathers did not trust any government to separate the true from the false."

Now, it is a fact that powerful classes and interest groups exert enormous socialising pressure on individuals, and that as Karl Mark said, "the ideas of the ruling class are the ruling ideas". One can't adopt a naive, atomistic view of free, unattached, autonomous individuals deciding their own fate apart from brainwashing by the dominant ideology. But individuals still have some agency, however limited. The State must be restricted as to what its proscribes.

We have to accommodate ideas and expressions that are obnoxious. We have white supremacists groups, but we also have black-supremacists groups. I have brought out black supremacists on my show Religious Hardtalk who have asserted that God will destroy white people, that He hates them, and that He will set up a kingdom on Earth where blacks will rule over them. These Hebrew Israelite cultists oppose interracial marriage and teach segregation and black supremacy. They freely teach on street corners in white America. Their teachings are reprehensible. But I allowed them on my television show. They have a right to their repulsive views.

My role as a journalist is not to protect people from offensive ideas. There was a time when atheists did not have the freedom to say God did not exist without being charged for a crime. Militant atheists must be free to say blasphemous things about Christ without being locked up for blasphemy. Atheists must be free to mock and ridicule us Christians, and Christians must be fee free to say homosexuality is an abomination punishable by hellfire. Christians and gay people must toughen up. That's the price you pay for living in a liberal democracy.

- Ian Boyne is a veteran journalist working with the Jamaica Information Service. Email feedback to columns@gleanerjm.com and ianboyne1@yahoo.com.