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.”