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.

One Reply to “Hate Speech and the First Amendment”

  1. What bothers me about this entire censorship – and I too dislike rude, ugly, and hateful speech – is that people become afraid to express themselves and they lose their power to speak freely because they develop a fear of saying the wrong thing. On the heels of that comes misinterpretation, fear to speak out when necessary, and a population who puts on a false face even when something is really wrong for fear of saying the wrong thing or not being believed. This leads to all kinds of things and lots of people end up in prison over nothing two humans cannot handle. How do you mandate emotions and outbursts? Its part of being a feeling, caring human being. Nice people of all ages say stupid things and then they apologize and take them back. You can’t call the law every time someone gets mad and says something stupid. AND if the guy on the corner wants to proselytize then so what? That makes him happy and when enough people say “enough-go home” he will, but no one who is not interested stands and listens for long. Just walk away people.

    Like TV, if you don’t like the show, change the darn channel! That does not mean you get to legislate the airways! That is how people lose their freedom until they earn it back again in another hundred years.

    Growing up we were taught that people say all kinds of things and it is part of learning to be a well adjusted socialized human being. One learns to develop a thick skin, ignore rudeness and bullies, and especially to speak up for oneself when needed.

    “Sticks and stones may break my bones but words will never hurt me.” That rhyme rang back in forth in our neighborhood frequently between the big kids and the little kids as we all scattered to the winds laughing and giggling and even yelling at each other. Parents pulled us in and sent us to our baths as we got scolded for various infractions. We came dangerously close to crossing the line of what was acceptable and what was not but we knew the rules. What has become of that America?

    Is it now so bad a place to be, so overrun with broken families and crummy parenting, and people who do not care about manners and social interaction that those conversations no longer take place and we need government enforcement to know how to speak to one another? Have we no faith in human beings at all and all the faith in the world in agencies, law enforcement, and court systems?

    I say it is a sad world America if that is the best we can do and obviously the people who want this the most think you can outlaw hate but it is the totally wrong approach. You must focus on creating kindness, courtesy and respect and I don’t think you think you can.

    Each of us are responsible for ourselves and THAT is where is starts. Our children, ourselves, our families and friends. I still have confidence in America and Americans. It has always been good to me. I stand by the first amendment and I know lots of Americans have died for the right of free speech. Lets keep it free and raise our consciousness. Anyway, most of the people talking hate speech are the uneducated and untraveled who are always angry and resentful and looking for a fight so who is this going to hurt the most? Not me. I do not say rude, hateful, ugly things and I did not need a law to know better. I feel sorry for those who do.


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