The Constitution, we have been told, is outdated. For the latest example from this cottage industry of latter-day alleged experts, see Richard Stengel’s Oct. 29 editorial for the Washington Post. Stengel argues that “the intellectual underpinning of the First Amendment was engineered for a simpler era.” Because of that we need to radically revise the Constitution. He contends that the First Amendment rests on the idea that the “truth will win out” in a “marketplace of ideas.” But with the rise of the internet, the truth will not always win out, and therefore we need a law allowing government to punish offensive, hateful speech.
Well count me out. Protecting freedom of speech, including speech that we find repugnant, is just as important today as it ever has been. In fact, it’s even more important. The list of problems with calls for punishing hate speech is long and well known. Most importantly, no one, as Stengel admits, can offer a coherent definition of what they mean by hate speech. That points to the most important problem. Today we have hate-speech inflation. Everything that might cause the slightest dyspepsia for the most sensitive among us is labeled hate speech.
Such proposals also invert the very idea of individual rights. If you have an individual right to speech, that is your right. It is not conditioned on how someone responds to that right. But now, people argue that any speech that they find offensive should not be protected. That makes your right depend on the subjective response of someone else, often the subjective response of someone who thinks that all opinions that they agree with should be tolerated but no others. The temptation, as the great civil libertarian Nat Hentoff put it is, “free speech for me but not for thee.” In case you need a hint, this is the spirit of tyranny not of liberalism.
Now, if you disagree with me, there’s a fantastic event where you can exercise your right to freedom of speech and tell me that I’m off my rocker. On Thursday evening, the comedy news channel We the Internet TV is bringing their fall “The Funny Thing About Hate Speech” tour to Phantom Canyon in Colorado Springs. If you’re perplexed by the title, you can look up semantic ambiguity. But if you have to do that, the joke might be on you. At the event, WTI TV’s head writer and producer Lou Perez will screen their minidocumentary, “5 Reasons Why We Need Hate Speech” and host a panel discussion, including yours truly, about the importance of the First Amendment. This documentary includes commentary from leading First Amendment advocates and scholars such as Nadine Strossen, the former president of the American Civil Liberties Union.
Let me go ahead and get one fundamental disagreement that I have with the documentary out of the way. A more accurate title would be “5 Reasons We Need Free Speech.” As the Supreme Court and anyone with a basic understanding of how democratic institutions function has consistently acknowledged, popular speech does not need protection. If it is popular, it will be protected through the political process. Thus, freedom of speech, if it’s not to be an empty gesture, must protect unpopular and offensive speech. That means that when you hear people confidently pronounce that the Constitution doesn’t protect hate speech, you can immediately assume that they are ignorant of constitutional law. This isn’t a close call. We’re talking 8-1 and 9-0 opinions by the court.
Let me also get a misconception out of the way. Defending freedom of speech doesn’t mean that you have to like it when people say hateful things. I certainly don’t. In fact, I know lots of people who say lots of hateful things about principles that I hold dear — for instance, the importance of protecting freedom of speech — but that doesn’t mean I like it. However, in the spirit of constitutional magnanimity, I will defend their constitutional right to say that the Constitution is wrong.
To learn more about Thursday’s event visit https://bit.ly/2PA2JSk.
Joshua Dunn (Ph.D University of Virginia) is professor and chair of the Department of Political Science and Director of the Center for the Study of Government and the Individual at the University of Colorado at Colorado Springs.