Free Speech Must Include Hate Speech

Free Speech Must Include Hate Speech


By Benjamin R. Dierker, Social Policy Contributor

There are two main classes of law that most people know: criminal law and civil law. The former class includes the government prosecuting an individual for violating the law and threatening social order. The latter governs private interactions. When we think about free speech and the First Amendment, it is important to note the distinction in law. 

Free speech is not synonymous with the First Amendment. Freedom of speech is a natural right, whereas the First Amendment is a codified protection of that right from government abridgment. To this end, you do not have a constitutional right to expression – that would presuppose the government gave you the right – instead, you have a God-given right that the Constitution merely preserves. 

The Constitution says that individuals cannot have their right to speech or expression taken away by the government (without reason, due process, and fair trial). The First Amendment is a barrier to tyranny. It stands between the individual and the state to keep the looming and powerful government from squashing the liberty of the people to think, say, and act as they wish. 

In private action, individual’s free speech is limited only by its impact on others. Here, the civil law allows another individual to recover damages for the harm done by another’s speech. The government is not an issue in private actions regarding libel, slander, or hate speech. That is, the government won’t prosecute one person for insulting another. When a person uses their speech or expression to harm another, he or she can have a ruling against them to pay the affected person for the harm created

Many have called for greater enforcement against hate speech and for strict punishment. It is unclear if this is a call for government prosecution or higher civil penalties for hate speech. Given the tone and context of the remarks, it seems that radical leftists want to use the government to squash speech they dislike. They want to destroy the integrity of the First Amendment by censoring and using government prosecution for speech. If you are a visual learner, just watch footage from Berkeley or Middlebury College. Former Governor Howard Dean even went as far as to say hate speech is not protected by the First Amendment. This is not only wrong, but silly. Hate speech is arguably the very reason for the First Amendment. The government doesn’t care if individuals are talking about their love for tacos or workout tips. A large, tyrannical, or fascist government cares about criticism of the government or its officials; it cares about inflammatory remarks and provocative expression. The founding fathers wrote the First Amendment expressly to prevent the government from being able to punish people for believing and expressing unpopular and insidious things. 

There are many problems with the leftist (read: fascist) desire to limit free speech. The first is that it empowers the government to become tyrannical in its enforcement of speech codes and it flies in the face of the constitutional protection of our natural right to expression. Second, there is no clear standard for what constitutes hate speech. Is an insult hate speech, what about jokes and sarcasm, or a misstatement or typo? The ambiguous term could fit whatever the activist wants at the time, but could easily be turned against that activist in the next moment or next administration. The last issue is that there is no issue because tort law already accounts for harmful speech. We do not need new laws where sufficient laws already exist. 

All people should conduct themselves with decency and integrity. There is no need to use legitimately hateful speech. But we also cannot tolerate hyperbolic labeling of everything as hate speech simply because we do not like or agree with it or it harms our sensibilities. The term is basically meaningless. Ask 100 people what hate speech is and you will likely get 100 different answers. If a person is truly malicious and uses atrocious words against another, chances are the victim of the verbal attack will be fine. Obviously psychological harm can result, but, - cue the grade school mantra - "sticks and stone may break your bones... but words will never hurt you." And even if the speech is offensive or hurtful- do we really want to fine or imprison people for just saying words? Since when is public dissent punishable by prosecution? It is clearly wrong to insult someone or call them a bad word, but imprisoning them is what dictators do, not free countries...

The civil law already accounts for the harm done by words. The criminal law acts on behalf of society, where the government prosecutes to keep a person from harming or negatively impacting the community. The civil law allows private parties to reconcile incidents that result in damages. 

Words can give rise to tort liability. One can be found liable for assault for words that constitute a threat and give rise to immediate apprehension in the victim. An individual can recover money damages for a harmed reputation as a result of slander, libel, or defamation. If a misfeasor is particularly wicked with his words and harasses a victim, he or she may have a claim for intentional infliction of emotional distress. Sexual, racial, religious and other types of harassment in the workplace are punishable under Title VII of the Civil Rights Act.  Any of these torts and more could rectify any claim of hate speech. But the harmed party must initiate a suit. They must be so harmed that they decide to bring litigation, the state doesn’t simply go after the alleged bad guy. Additionally, these torts require elements to be proved such that a reasonable jury finds the defendant liable. Merely offensive remarks will not result in a ruling against a defendant for hate speech. 

Now, some things will get you arrested. Direct threats to a public official, calls for violence, or incitement of riots are likely over the line of free speech. But in legitimate cases of serious threats or objectively extreme incitement, individuals face justice. 

The system works. We already ostracized racist and bigoted people for obviously incendiary remarks, and their reputation bears the impact of their own decisions. Further, we already have a legitimate system to punish those who use words inappropriately. The last thing we need is a government going after individuals for the things they say. That fascist mentality is everything America stands against, and is directly checked with the First Amendment. 

Not only should we protect hate speech under the First Amendment, but we must. We shouldn’t protect the reputation of those who choose to be hateful, and we should certainly make them pay for legitimately wrong behavior, but we shouldn’t sic the police on someone who insults another. 

Follow this author on Twitter @bendierker

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