Last year I did a post on hate speech and free speech issues, in relation to a New York Times post. Given the current anti-Muslim hostile commentaries and a decade of violent attacks on Muslim and Middle Eastern Americans, some of the issues raised in this earlier post are still highly relevant today. I fear that this generating of much anti-Muslim sentiment, especially in our right wing media is going to lead to yet more hate crimes. So I revisit here some of that earlier discusssion.
Last year the New York Times blog site had an editorial on the white supremacist and “free speech” issues arising out of recent killings. After their opening they have comments from a variety of criminological and legal experts (Phyllis B. Gerstenfeld, criminal justice professor; Chip Berlet, Political Research Associates; Eric Hickey, criminology professor; Edward J. Eberle, comparative law professor; Eugene O’Donnell, John Jay College of Criminal Justice; and Rabbi Abraham Cooper, Simon Wiesenthal Center.)
Here is what the Times editors open with under the general theme of “room for debate”:
The killing of George Tiller, the abortion doctor in Wichita, Kan., and the attack on the Holocaust Memorial Museum in Washington yesterday have raised questions yet again about the role that extremist propaganda sites play in inciting violence among some militant believers. In both cases, the suspect arrested was well-known among fringe “communities” on the Web. Most legal scholars and many experts on extremist violence in the U.S. oppose reining in of such sites, or restrictions on extremist speech generally. Should the United States consider tighter restrictions on hate speech?
Notice the language here and in later parts of the analysts’ commentaries. They talk about “militant believers” from “fringe communities,” and sometimes call them “extremist.” One has to ask why they do not call these terrorists by the term “white terrorists”? Indeed, “white” rarely appears at all in the editorial or commentaries. If these white men had been “Middle Eastern extremists,” they likely would be called by that term. Do white men get a pass when it comes go this group-linked terrorism? And not one of the scholars even raises this question and the related one about the very long U.S. history of white terrorism (e.g., thousands killed by Klan-type groups) against people of color, as well as others like Jewish Americans.
The main debate in the Times blog here is over “free speech,” and how we cannot restrict white supremacist and other hate speech because of first amendment protections. One of the Times blog commentators, Edward J. Eberle, law professor at the Roger Williams University School of Law provides what I see as very interesting comments:
The United States is perhaps the only country in the world that allows for protection of hate speech. Much of this has to do with the idea that a free exchange of ideas is important and that allowing speech — even hate-filled speech — can be a safety valve that helps prevent outbreaks of violence. Under this view, speech needs to be regulated only when it will present a clear and present danger, as when it is a direct incitement to violence.
OK, why is this point not central in our media and political discussions: We are the only country that protects aggressive white supremacist and other aggressive hate speech. Why is that? Is it only because of our first amendment and conventional ideas of “free speech” in the United States? Is it because we really do cherish freedom more than other countries? Is our past and present history one of much greater freedom and liberty than other countries? Or is it because we (especially elite whites who run the country) do not see aggressive racist or other extremist hate speech as threatening to them and the values they care about?
Yet, the United States does NOT have unlimited “freedom of speech.” This notion is in fact a myth. As Eberle points out, things like obscene speech are not protected speech, “even when there is no concrete demonstration of harm.” Indeed, numerous types of speech are not protected, including obscene words, “fighting words,” some deceptive commercial ads, etc, as this comment from the Electronic Privacy Information Center (epic.org) indicates:
Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local “community standard,” and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards.
So, let me get this straight, we do legally ban obscene words, sexual words, obscene speech in many contexts even when these words have not been, or cannot be, proven to create significant harm. We still ban them in numerous settings regardless of the first amendment. But it is OK to spout much racist hate speech all over the place, including on the Internet, when one can show it causes some or much harm–including inciting people like white terrorists to commit violence against people of color and others? (Some “communities’ standards” and views of what is harmful clearly count more than others.)
Eberle notes how isolated the “free” United States is from other free countries, including those we consider our closet allies and kindred countries. Most do not protect serious hate speech, but prosecute it:
This is the case in all the European countries, like Germany, France, Britain, etc., and also Canada.
Notice that these are countries with high levels of free speech, in many ways countries where speech is more diverse and/or free than in the United States (as many newsstands in these countries reveal). Their legal systems recognize a conflict in human freedoms. The right of freedom of speech is not so absolute and does not always trump the right freedom from extremist hate speech and related hate crimes. Eberle notes what he calls the U.S.
individualist model of a right to self-determination and expression. For the Europeans and others, there is also a right to speak your mind, but there are some bounds based on respect of others.
So, how did we get to this backward place of protecting extreme racist speech over the right to be free from such vicious, often violence-generating hate speech attacks? Not one of these criminologists and law professors speaks to how we as a country might reasonably regulate the most extreme forms of racist hate speech, the kind designed to incite people to discriminate and commit hate crimes. These analysts do not consider what other “advanced” democratic countries do in this regard as legal or political strategies we might just consider in dealing with aggressive and virulent hate speech. Why are we so ethnocentric and provincial in not even knowing about or considering other, often more democratic, legal and political systems–and what they do to free their citizens from such virulent racist attacks?
UPDATE: One reader asked about the numbers. The Southern Poverty Law Center has this useful summary of the most recent DOJ reports on hate crimes:
The FBI has reported national hate crime totals of between about 6,000 and about 10,000 since it began publishing the numbers in 1992, depending on the year (the new report counts 7,264 incidents in 2007). But a definitive 2005 study by the Department of Justice’s Bureau of Justice Statistics, based on detailed and highly accurate National Crime Victimization Surveys, found that the real annual level of hate crime in America averaged some 191,000 incidents — in other words, about 20 to 30 times higher than the numbers annually reported by the FBI.
There are a huge number of such incidents across the country. (This SPLC summary does not distinguish anti-Muslim attacks. However, in nine weeks after September 11, there were at least 520 violent attacks on people thought to be of Middle Eastern ancestry. Recently, CAIR reports 116 hate crime incidents targeting Middle Eastern Americans in 2008, the most recent year I’ve seen data on– and more than 1000 since 2001. Nationwide, the number of civil rights complaints processed in 2008 by CAIR and affiliates was 2728. These numbers appear to be at least that high since then. I have not seen similar reports for countries overseas. Maybe our European readers can fill that gap in? I did find one international [PDF] report that accents violent hate crimes and reviews the very variable and often missing or inadequate data for European and other countries. Better quality reporting seems necessary for the US and numerous other countries.)
SECOND UPDATE: Jessie has previously shown how US racism can shape overseas hate crime now that we all live in global internet “country.”
Do you have any statistics on this issue? For instance the number of racially or religiously motivated attacks in the USA and in countries where hate speach is outlawed?
Good questions. I added an update at end.
I have thoughts on “freedom of speech” but I do not have time to leave a full response, just wanted to say that even movies made back in the 70’s had Middle Eastern “terrorists” hijacking jets flying in the air. I can’t remember their names, and never even watched them fully. But do remember seeing that years ago when others were watching T.V. or what ever–maybe others might know these movies…. (Just sort of a side thought)
I don’t remember the ones from the 1970s, but the trend continued well into the 1980s, the most famous being “Delta Force” starring Chuck Norris. Most people may not have noticed the anti-Arab sentiment (which was deliberately conflated with the Islamic Religion) at the time because Chuck Norris, Arnold Schwarzenegger, and Sylvester Stallone were busy salving America’s ego with action movies that featured them killing lots of Black, Brown, and Yellow foreigners.
Hello Heavy Armor, so nice to see another commenter here. While I never really watched movies, I do remember those themes in the 80’s. But also in the comedy movies, stereotypes such as in Airplane, Police Academy, either 16 Candles or Pretty in Pink and so forth. The music as well…”I think I’m turning Japanese” “I’m on a Mexican Radio” and so on. Whether it’s through action, comedy, drama, music, or other forms of entertainment, much of the production that comes from the white communities seems to both play on and channel negative stereotypes related to non-white groups. Thank you for your help and while I never saw “Delta Force” and most of those action movies then, I appreciate the way you phrased the last sentence–so true. I think it all plays into the society’s high tolerance for anti-Muslim, and anti-what ever else sentiments and discrimination…that coupled with lack of critical and honest education, etc. The so-called entertainment industry…I guess it really all goes back to the beginnings in the U.S. with plays, songs, and the first movies….
This is very intersting and I will try to keep an open mind. Personally I have always been very against limiting hate speach. I would rather know who is coming at me, and in general these hate group members aren’t the brightest bulbs so I would their activities on the internet are a great tool for law enforcement to know who to go after/infiltrate. I’m sure there are benefits to limiting hate speach. The SPLC numbers look pretty bad, and they are one of the institutions that puts out numbers I trust.
One issue is that we already regulate all kinds of speech in this country, even when that speech does NOT threaten or endanger anyone at all–like all our courts’ policing of what they as judges see as “obscene.” We really do not have more “free speech” in this country than other major industrialized countries. Numerous European countries regulate hate speech but they often have far more open and democratic speech and debates on political/economic/social issues than we do. Socialism is not a dirty word there and you can buy, hear, and read all kinds of political ideas that get regularly attacked in most of our so-called “free” media.
I would still rather remove some of the regulations against speech here before I would want to add more regulations to speech.
It’s true that we regulate all kinds of speech and all kinds of racism, but not racist speech–unless it is a direct provocation to an immediate attack, takes place in the workplace or other private setting, is considered a true threat, or a few other judicial exceptions. And it is true that most other liberal democracies DO regulate egregious racist speech. My book on just this topic is due out next year from OUP. The short version of the explanation has to do with the 1960s and 1970s reaction to McCarthyism and to pressures from civil rights activists and anti-war activists that militated for maximal free speech. Still, since this context is no longer extremely relevant, I agree it’s time to revisit the way in which we regulate extreme racist speech in the United States. Do we really want to protect the right to burn a Koran in public, for example? Is that really who we are as a nation?
Yes I want to protect the right to burn a Koran in public as long as it is done on private property. I don’t think it is a good idea to burn a Koran in public, I can’t see any positive outcome, but I feel the right to burn Korans in public should not be taken away.
I’m very interested to read your book on racist speech, Erik. I tackle some of this in my recent Cyber Racism (Rowman & Littlefield 2009) – which Joe refers in the second update to the original post. Specifically, I look at how different the U.S. is in the world community with regard to not dealing with hate online. One of the things I argue is that, in fact, the U.S. has already regulated hate speech in the 2003 SCOTUS decision Virginia v. Black in which they ruled in favor of anti-cross-burning laws, because they argued that a burning cross is a symbol intended to terrorize not add to democratic discourse. (I would argue that Koran-burning is similar to cross-burning here – this isn’t adding to discussion in the public sphere of a democracy.) What no one has yet decided is what constitutes a burning cross on the Internet.
Koran burning is only similar to cross burning in terms of the 2003 case if the intent is to intimidate. At least to my understanding. If I am wrong please let me know.
Hi Jessie, thanks for pointing me to your book, which I will eagerly read. On the Koran/cross point, notice that neither is actually _speech_. Both are expressive acts. Parading nude down Main Street or drinking from an open alcohol container in public might also be done as expressive acts. Yet most jurisdictions have decided those are outrageous affronts that must be regulated, even though they don’t intimidate or pose any danger. Yet we’re shy about saying the cons of burning a Koran in public outweigh the pros, even though our country’s leaders state publicly there is almost no worse thing anyone could do? If you imagine landing in the United States from outer space–or from Europe–it’s easy to see why this seems pretty ridiculous.
Jessie, my recollection of the Virginia v. Black decision is that cross-burning can be ruled illegal IF it constitutes a true threat, but NOT if it is simply an expression of the ideology of the people burning the cross.
I don’t personally agree with the public consumption laws in this country. I can see way more reason for barring burning a Koran than drinking in public. However, I have worked with one person who was so offended by abortion that he admittedly sympathized with the people who would shoot abortion doctors and bomb clinics. An abortion being performed offends people like him on the same level as a Koran offends the Islamic people. I don’t see that even coming into play in the anti-abortion argument. I guess I just don’t see a logical argument against Koran burning in a free society. I know we aren’t a completely free society by any stretch, but I would rather work towards a free society than against a free society.
Thanks, Erik. We did an earlier post on how the film star Brigitte Bardot (now 73, but a legend in the 1960s-1970s), was been fined by a French court for violating laws against writing/speaking in ways that attack racial groups, Muslims….. http://www.racismreview.com/blog/2008/06/04/film-star-bardot-fined-for-anti-muslim-writings/
Wow, uncanny. That’s a section of a chapter in my book. Looks like I should have tuned in earlier. I’m glad I’m catching up with you now!
Glad to have you now. Keep us posted on your book.
http://www.reuters.com/article/idUSL2817646220080228 is one example from about 2008 on how Germany handles Internet racist stuff.
Thanks for this. What I don’t know–but what Jessie has treated a bit in her book (maybe more, I’ll see soon)–is if and how countries like Germany block access to racist sites based out of the US. I forgot to surf the web the last time I was in Europe to see what kind of hate-site access I had from there. Doesn’t that sound like a great way to ruin a European vacation?
I just want to be brief here and provide an example of how hate speech is protected that I will probably never fully recover from. Back in 1994 the students at a state university somewhere on the West Coast were holding an antiwar demonstration. It was all totally peaceful and the university cops were ordered to stop the protest a couple of hours short than what they had been permitted. No arrests, etc., were made and the students all peacefully disassembled. The following week a white fundamentalist Christian church group on campus invited hate folks on campus. The hate folks (not students or affiliated with the university other than with the group that had invited them) got their full allotted time carrying their hate signs up and down the mall…while at times heckling students walking by…. So students pay to be at the university, if it weren’t for students the university would not be in operation, yet they weren’t allowed to exercise their own freedom of speech–speaking out against an illegal war taking place…yet these same students have to peacefully respect and tolerate hate folks with their children also carrying signs, walking up and down the main strip in the campus spewing pure hated against people of color, Jews, Muslims, gays and lesbians, etc., etc., etc. Students were advised to simply “ignore” these folks as they deliberately antagonize people who disagree hoping to get assaulted so they can turn around and sue them…. Twisted.
This idea or apparent illusion, or rather lie of so called free speech, only applies to those who channel hate. When people challenge the free speech of those who preach hate are allowed to convey (and protected), they are silenced and if they push the matters they then enter into the realm of civil disobedience, resulting in fines and arrests, and so forth. Speech that results in fines and arrests, is not free obviously, in both a literal and metaphorical sense.
And what makes me angry about these folks who are allowed to exercise their freedom of hate speech is that they are not held accountable for hate crimes and what other possible harms that might occur as a result of their exposure. It’s the reflection of the systemic white supremacy in this society and the value it places on whiteness combined with hatred, as well as how far this society has not come, or matured as a whole….
That is awful that the anti-war demonstration was stopped, I would focus on allowing that demonstration to go on. I don’t know about stopping the other demonstration, I know I’m in the minority on this site.