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Should We Regulate Extreme Racist Speech Like Other Democracies?
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The New York Times blog site (HT, Zulema) has 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?
Addendum: Paul Krassner reviews some of the array of speech censored and banned under the “obscenity” regulations of various places in the country. But no hate speech.
When Antisemitic “Pseudo-Science” Gets Tenured and Promoted to Full
Posted by: | CommentsThere’s quite a controversy brewing within academic circles about a tenured full professor of psychology at Cal State U. Long Beach, Kevin McDonald, that raises important questions about the creation of knowledge, the academic enterprise and race. McDonald, who is an evolutionary psychologist, contends that Jews are a separate race driven by genetics and evolution to band together, both for “group survival” and to undercut white, Western culture. Further, he asserts that the Third Reich’s Nazi movement developed specifically to counter “Judaism as a group evolutionary strategy.” He claims to be “agnostic” about whether or not the Holocaust happened, and yet, testified on behalf of infamous Holocaust-denier, David Irving. Not coincidentally, McDonald says that he testified in support of Irving because he was motivated by a desire to defend academic freedom, not deny the Holocaust. Although McDonald includes a disavowal on his website that he does not “condone white racial superiority, genocide, Nazism or Holocaust denial,” his actions – and his research – suggest otherwise, as Scott Jaschik demonstrates in his piece in Inside Higher Ed (Feb.14). Jaschik points out that a favorable story about McDonald’s work appears on Vanguard News Network, a white supremacist website. And, in Heidi Beirich’s thoroughly devastating piece on McDonald for SPLC’s Intelligence Report, she notes that his work is more popular than Mein Kampf with neo-Nazis and white supremacists. In fact, David Duke draws heavily on McDonald’s work for his own antisemitic and racist autobiography, My Awakening, and the condensed version, Jewish Supremacism. 
And, according to Beirich’s report, in 2004 white supremacists David Duke (former Klansman and Louisiana legislator), Don Black, Jamie Kelso (of Stormfront, the main online portal for white supremacy) and Kevin Alfred Strom (of the neo-Nazi National Vanguard) all attended a ceremony in which McDonald was honored by The Occidental Quarterly, a white supremacist journal. McDonald is pictured here receiving the award, alongside Virginia Abernethy, a self-described “white separatist.”
As you might expect, the controversy is widely being framed as an issue that tests the bounds of academic freedom. This is both an obvious, and a deeply problematic, way to frame this particular case. On the one hand, McDonald is an academic with tenure (and a promotion by his peers to full professorship) who has controversial and unpopular views and should, within the rules of the academy, be allowed to express those views.
On the other hand, framing McDonald’s vile “scholarship” as within the bounds of what is acceptable and even protected within the academy is deeply problematic given the context of his position within a public university with a commitment to human rights, diversity, and to offering an equal educational environment for all who enroll there. I’m generally quite critical of absolutist defenses of “free speech,” and am persuaded by critiques of the first amendment grounded in critical race theory.
Yet, I find this particular case vexing Read More→
A New Noose and a Critique of ‘Free Speech’
Posted by: | CommentsIt seems we can’t go a day without a report of racial terrorism in the shape of a noose. The news here in NYC is reporting on the appearance of another noose, this one sent to a high school principal in Canarsie, Brooklyn, along with a note advocating “white power.” At the same time, the NY State Senate unanimously passed legislation that would make it a felony involving harsher punishment for people “who etch, paint, draw or otherwise place or display nooses on public or private property,” (quoted from the Newsday article linked above). And, even though that legislation passed unanimously, I fully expect that it will run into trouble in the House and in the public sphere as people defend it as a form of “free speech” protected by the First Amendment. The sort of knee-jerk defense of nearly any form of racism as “protected speech” is characteristic of what is by now a decades-long backlash against very modest gains by women and people of color, particularly in the academy. (I find it not at all surprising that so many of these incidents are happening in educational institutions, where these modest gains toward equality seem most evident.) Legal scholars Matsuda, Lawrence, Delgado and Crenshaw writing from a critical race perspective in their introduction to Words that Wound, merit quoting at length on this point:
“Contemporaneous with the recent outbreak of gutter hate speech and racial harassment, there is an emerging and increasingly virulent backlash against the extremely modest successes achieved by communities of color, women, and other subordinated groups in our efforts to integrate academic institutions run by and for white male elites. The chief spokespersons for this more refined sentiment against persons and voices that are new an unfamiliar to the campus and intellectual discourse are not purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend that the powerful have become powerless. …Stripped of its context this is a seductive argument. The privilege and power of white male elites is wrapped in the rhetoric of politically unpopular speech. …The first amendment arms conscious and unconscious racists — Nazis and liberals alike — with a constitutional right to be racist. Racism is just another idea deserving of constitutional protection like all ideas. ” [emphasis added] (Matsuda et al., 1993:14-15).
What’s at stake here is, as these scholars point out, “our vision for this society,” not merely how to balance one individuals’ freedom of speech against another individual’s freedom from injury but what the substantive content of that freedom and equality looks like. What they’re calling for – have been calling for, for some time now – is a radical shift in perspective so that it is the victim’s story that’s at the center of our response.
So, to take the current example, the laws should be written from the perspective of those who are on the receiving end of the noose. And, while the NY State Senate has taken a step in the right direction here, it ultimately falls short because this is not a problem that’s isolated to New York state or to a particular region of the U.S. Racism, and the racist terror that the nooses represent, is a national problem that requires a collective response; and, yet the federal government remains predictably silent on the issue.
