Media and Communications Policy
Hate Speech and the First Amendment
“If you bring up the First Amendment, you’re a racist.” In so many words that’s the message – or threat – to anyone who would dare question the constitutionality of a proposal that the government launch an inquiry into media content.
The threat is leveled by the National Hispanic Media Coalition (NHMC) in a Jan. 28 petition asking the FCC to conduct an inquiry into hate speech in the media. The petition was written for NHMC by the Institute for Public Representation at Georgetown Law and the Media Access Project.
Ironically, the names of both groups (“Public Representation,” “Media Access”) would seem to suggest support for freedom of speech. Here, however, the ultimate intent of these groups is to eradicate certain types of speech (and speakers) in the media, and to chill the speech of anyone who would question that endeavor.
The petitioners throw down the gauntlet to First Amendment challengers with this line: “The NHMC understands that those who would prefer hate speech to remain under the radar will claim that such an inquiry violates the First Amendment.”
Let me say up front that I find racial slurs and other forms of bigoted, biased, hateful speech to be utterly abhorrent. Such speech usually emanates either from small-minded, obtuse bigots, or from persons who are smart enough to know better but are consumed with hate, anger, and at bottom, fear.
However, I do challenge the constitutionality of an inquiry that could lead to the banning of speech – not because I’m a bigot (as the petitioners imply), but because I happen to be a staunch supporter of the First Amendment.
Like it or not, the First Amendment was designed precisely to prevent government censorship, not only of popular speech but of unpopular speech – even so-called “hate speech.”
There are some narrow exceptions, like speech that incites immediate violence. That seems to be the slim reed on which NHMC tries to build its case. The petitioners say that there has been an increase in hate speech in the media. Then they say that there has been an increase in the number of violent hate crimes against Hispanics. By that juxtaposition they try to imply that there is a causal relationship between hate speech and hate crimes.
But the petitioners offer no evidence – only vague assertions like “hate speech over the media may be causing concrete harms.” Even a 1993 report by NTIA, which the NHMC petition quotes liberally, “found that ‘the available data linking the problem of hate crimes to telecommunications remains scattered and largely anecdotal,’ and that [NTIA] lacked sufficient information to make specific policy recommendations.”
So what’s going on here? NHMC and its public-interest collaborators take great pains to point out that they are only asking for an inquiry into what’s happening out there, “merely the collection of information and data about hate speech in the media” – not for any overt censorship. Oh, and of course they’re not calling for a reinstatement of the Fairness Doctrine, they are quick to note.
But as we know, FCC notices of inquiry have a way of turning into rulemaking proceedings. And if a rulemaking proceeding aimed at outlawing hate speech had the effect of outlawing conservative talk radio ... who needs a Fairness Doctrine?
This is no time for First Amendment advocates to be cowed into silence by bogus challenges to their political correctness. Speech isn’t always pretty, or pleasing, or even palatable. That’s why we have a First Amendment.
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