On April 19, UC Berkeley announced that they were canceling the scheduled speaking appearance of Ann Coulter, the controversial conservative political commentator, and writer, citing several previous violent protests by students, including the recently canceled speaking event featuring former Breitbart writer Milo Yiannopoulos. Berkeley claimed that because of these past protests turning violent, it was best to cancel the event because they expected more of the same protests of this kind, during which, according to The Washington Post, “some protesters set fires, threw rocks and Molotov cocktails and attacked members of the crowd to try to shut down the event.” Berkeley did offer to move the date of her talk to May 2 at an off-campus venue, but Coulter declined.
This instance as well as many others, some of which I have spoken about previously, seems to be another example of a trend on college campuses. This one, again, is worrisome if one is a proponent of democracy, free speech, personal autonomy and the idea that everyone should be safe from violent mobs. This question of what hate speech is, what constitutes it, whether or not it is protected by the First Amendment and whether or not it should be protected by the First Amendment has been debated for several years now. First, the argument that it is not protected by the First Amendment is, in my opinion, fairly cut and dry and really a dead issue. However, there are still prominent people who disagree, like former governor of Vermont and 2004 Democratic presidential candidate Howard Dean.
Soon after the Berkeley-Coulter controversy, he tweeted simply, “Hate speech is not protected by the First Amendment.” First, it should be noted that the concept of “hate speech” is without any real consensus on what forms of speech it entails specifically, but in the ways that it is usually defined in certain — the “I know it when I see it” way — hate speech seems to be unambiguously protected by the First Amendment. In fact, according to the American Civil Liberties Union (ACLU), “The First Amendment to the United States Constitution protects speech no matter how offensive its content. Speech codes adopted by government-financed state colleges and universities amount to government censorship, in violation of the Constitution.” Well, that should effectively close the case. For future reference of exact SCOTUS cases that support this interpretation by the ACLU, there are several that range from a 1969 case in which an Ohio law prohibiting public speech promoting illegal activity violated a Ku Klux Klan member’s First Amendment rights, according to PolitiFact, to the more recent case of the Westboro Baptist Church protesting a gay soldier’s funeral with homophobic slurs.
The really interesting question is whether or not hate speech should be protected by the Constitution. This question has two major schools of thought supported by political philosophers. The first is John Stuart Mill’s Principle of Harm, who states in his book On Liberty that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” This is a very strong defense of free speech by one of the most prominent utilitarian philosophers. To emphasize just how strongly and how literally he means this, he goes on to say, “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” Notice, Mill doesn’t add any caveat saying except in the cases in which one person is saying something outrageous about a certain ethnic group or people of a certain sexual orientation.
Still, however, the question might be asked, “What sorts of speech cause harm? The case could be made that there are plenty of ways that saying something like what Ann Coulter herself said about Latino culture — “these are cultures where women help the men rape kids” — is patently disgusting and indefensible. That is from a standpoint of evaluating whether or not actions as such mentioned in the statement are true or characteristic of Latin American cultures. But when talking about political speech, things can get class black and white. As inheritors of the traditions of liberal democracies, we generally believe that political and religious speech is very important and should be jealously guarded. Yes, it is never desirable for people to be hurt by the words of others, but there is first the issue of what actually constitutes being offended and whether or not that is a viable criterion to write into law. Frankly, anything, especially in today’s world, could be considered offensive, not all of which most people would want to be found offensive, and if we pushed this criterion back in history, most people would be appalled at what sorts of things would be prohibited from being said.
Speaking from today’s point of reference, if offense is the standard of what constitutes prohibited speech, someone could be charged with a criminal offense for saying that Trump supporters are all fascist thugs and hate minorities. It may well be the case that many are fascists and some may hate all minorities, but this is very likely to offend many Republicans and Trump supporters. If this were illegal to say, then many people at UCSB would be guilty of criminal hate speech, yet we find this sort of speech perfectly permissible because we might think it is largely true. Conversely, if someone said something like “There are only two genders or feminists are all misandrists,” we would be much more likely to be fine with calling this hate speech. However, all of these statements could arguably have similar amounts of truth to them. That’s part of the problem. Many people think it is, in fact, their own views that are the correct ones and it is the person sitting across from them in the MAGA hat that is the science-denying bigot. Likewise, to that conservative person, it is you who are the bleeding-heart liberal who would prefer to see your own people displaced by immigrants and will not rest until foreigners have taken all of your jobs. Furthermore, people from every time period have thought they had the right answer to everything, but history has shown us this is almost never the case.
This is a textbook example of hubris and arrogance on our part to think that we are infallible in even these cases that seem so cut and dry. It might benefit us to imagine what our grandchildren and great-grandchildren might think of us with 100 years of hindsight. Given this uncertainty, perhaps we might have the humility to consider that we might be wrong and prosecuting hate speech based on the extremely subjective criteria of offense is a bad idea because, while we might be in the political majority now, especially in California, that might not be the case several years or several decades down the road. Then, we might wish desperately that we did not choose to criminalize and justify censuring offending others with speech.
If this isn’t convincing, consider that universities are precisely the place at which people are meant to exchange and debate ideas, even radical and extreme ideas. In a Facebook post responding to the breaking news that Coulter was canceled at Berkeley, Robert Reich, former labor secretary under Bill Clinton and professor at UC Berkeley, said, “How can students understand the validity of Coulter’s arguments without being allowed to hear her make them and question her about them?” Reich went on to criticize Berkeley for anticipating possibilities of violence and choosing to back down in the face of fear rather than stepping up security. “It’s one thing to cancel an address at the last moment because the university and local police are not prepared to contain violence … it’s another thing entirely to cancel an address before it is given when police have adequate time to prepare for such eventualities.” Finally, he said, “Free speech is what universities are all about. If universities don’t do everything possible to foster and protect it, they aren’t universities. They’re playpens.”
To say that someone being offended is criteria for censoring speech is an arbitrary and dangerous metric. Even so, we don’t need to necessarily resign ourselves to such hard protections of speech as John Stuart Mill recommended. Australia seems to strike a good balance between protecting free speech and properly protecting people’s safety. Section 18C of their Racial Discrimination Act 1975 states, “It is unlawful for a person to do an act, otherwise than in private, If: (a) the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people, and (b) the act is done because of race, colour or national or ethnic origin.” This is further tempered by Section 18D, which states, “section 18C does not render unlawful anything said or done reasonably and in good faith.” This effectively means that we should be able to prosecute people if we can prove that they are deliberately trying to hurt others based on their nationality, race, sexual identity, whatever, so long as they are doing this with the intent to harm and to cause distress and disturb the peace.
However, there is a lot to be said about protecting political speech when people are trying to do so in good faith, that is, honestly trying to work for the public good, which includes honestly presenting a political position. It is in the best interest of a society not to censor this person’s speech. Yes, this may hurt some people’s feelings or make them feel attacked or depressed, and the views being expressed by the person speaking may be legitimately hateful and woefully misinformed. But when we start deciding what sort of political views can and cannot be expressed, this opens us up to all manner of political repression on the grounds that these views incite hate. Whatever our intentions are now, the criteria of people being offended by certain kinds of speech is simply too malleable and too subjective of a basis for enforcing policy, especially on such a crucial right of democracy.
Brian Wheat believes free speech isn’t up to interpretation.