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'Freedom for the thought that we hate'

Nadine Strossen is the president of the American Civil Liberties Union. She has won a controversial reputation as a 'free speech absolutist', for defending free speech even for racists and opposing the closure of New York's porn shops.

Here she argues that it is imperative to defend the right to free speech - even when we despise what is being said

The American Civil Liberties Union (ACLU) is a strong defender of free speech - even speech that expresses bias or prejudice, or that advocates violence or discrimination. Such expression is often called 'hate speech'. That is an apt term in two senses. First, the speech expresses hateful thoughts towards various individuals and groups - typically, racial or religious minorities. Second, as human rights advocates, we hate those thoughts.

But its 'double-barrelled' hateful content does not justify suppressing hate speech. To the contrary. To quote a famous statement by a revered US Supreme Court justice, Oliver Wendell Holmes (in 1929): '[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate.'

The ACLU position is not that government may never restrict speech, but rather that it may do so only under very limited circumstances. In a nutshell, government may suppress speech if - but only if - necessary to prevent a clear and present danger of actual harm. Examples of speech that would satisfy this appropriately tough standard are threats of violence, verbal harassment, and intentional incitement of imminent violent conduct or other illegal conduct, such as discrimination.

I will elaborate upon this speech-protective standard later. First, though, I want to examine the important claims that are said to justify the relaxing of this standard - that is, allowing government to suppress hate speech that does not satisfy the intentional imminent incitement test.

While many minority group leaders in the USA have strongly opposed restrictions on hate speech, some advocates of minority group rights have endorsed such restrictions in response to racist incidents on university campuses. They argue that hate speech has led to an increase in violence against certain minority groups, or other groups that are relatively powerless in the political system, such as women. It is also claimed that hate speech has led to discrimination against these groups. Conversely, it is argued that censoring hate speech would reduce inter-group violence and discrimination.

Because the ACLU has always fought for equality of educational opportunities, we carefully considered arguments by advocates of campus hate speech codes. However, based on that analysis, the ACLU ringingly reaffirmed its traditional speech-protective position. And we did so not because we elevated free speech rights above equality rights. Rather, we did so because we concluded that censoring hate speech would not in fact foster equality; worse yet, such censorship might well be counterproductive to that critically important goal.

Alas, racial discrimination and other forms of discrimination and discriminatory violence are rampant in the USA, as well as in many other countries. Therefore, I consider it tragic that so much energy has been spent on the most superficial manifestation of these deep-seated problems of racism and other prejudices: namely, a few words. I stress 'a few', because even advocates of suppressing hate speech recognise that they can punish only the most blatant, crudest expressions of racism; the more subtle, and hence the more insidious, expressions will necessarily go unredressed.

Instead of banning a few of the crudest, most superficial symptoms of discriminatory attitudes, I believe we should turn to more effective, constructive measures to deal with the root causes of such attitudes, as well as actual acts of discrimination and violence.

That is the overview of the ACLU's position on this important issue. I shall elaborate on some key points that underpin this position.

We oppose any relaxation of the traditional speech-protective First Amendment standards in this area. This does not mean that all speech is absolutely protected. Thus, in the campus context, we would not oppose a code that simply codified longstanding limits on speech that the ACLU has never opposed in any other context, consistent with the 'clear and present danger' concept. On this point, the relevant ACLU policy reads as follows:

'This policy does not prohibit colleges and universities from enacting disciplinary codes aimed at restricting acts of harassment, intimidation and * invasion of privacy. Although these are imprecise terms susceptible of impermissibly over-broad application, each term defines a type of conduct which is legally proscribed in many jurisdictions when directed at a specific individual or individuals and when intended to frighten, coerce, or unreasonably harry or intrude upon its target. Threatening telephone calls to a minority student's dormitory room, for example, would be proscribable conduct under the terms of this policy. Expressive behaviour which has no other effect than to create an unpleasant learning environment, however, would not be the proper subject of regulation.'

It should be noted that all of these traditionally unprotected types of speech are defined in terms of their context; their content alone is not enough to remove them from First Amendment protection. In other words, the mere fact that the idea conveyed by some expression may be deeply offensive or insulting does not justify proscribing or punishing that expression.

To allow restrictions on hate speech beyond these traditional, contextual limitations on all speech - in other words, to allow restrictions on hate speech because of its offensive content - would violate the two most fundamental principles underlying the First Amendment's free speech guarantee. The first such principle specifies what is a sufficient justification for restricting speech, and the second prescribes what is not.

I have already touched on the first cardinal free speech principle: that a restriction on speech can be justified only when necessary to prevent actual or imminent harm to an interest of compelling importance, such as violence or injury to others. As former Supreme Court justice Oliver Wendell Holmes observed in a much quoted opinion, the First Amendment would not protect somebody who falsely shouted 'Fire!' in a theatre and caused a panic.

To be restricted consistent with this principle, the speech must clearly pose an imminent danger. Allowing speech to be curtailed on the speculative basis that it might indirectly lead to possible harm sometime in the future would inevitably unravel free speech protection. All speech might lead to potential danger at some future point. Therefore, under such a watered-down approach, scarcely any idea would be safe, and surely no idea that challenged the status quo would be.

Earlier in this century the US Supreme Court did apply this relaxed, so-called 'bad tendency' approach; speech could be suppressed if it might have a tendency to lead to some future harm. All critics of government policy, and advocates of political reform, were at risk. For example, during the First World War era and the ensuing 'Red scare', thousands of Americans were imprisoned merely for peacefully expressing views critical of US participation in the war and other government policies. Likewise, at the height - or depth - of the Cold War, members of socialist and communist political groups were imprisoned merely for criticising capitalism or advocating Marxism. In light of this history, it seems particularly ironic that leftists would now champion a return to the censorial standards that were so long used to suppress their ideas. Yet that is precisely what the leftist advocates of hate speech codes are doing.

In the modern era the US Supreme Court has resoundingly repudiated this bad tendency rationale for suppressing controversial speech. Moreover, the High Court also has recognised the crucial distinction between advocacy of violent or unlawful conduct, which is protected, and intentional, imminent incitement of such conduct, which is not. The court enshrined this distinction in a landmark 1969 decision, Brandenburg v Ohio. In that case, the court unanimously upheld the First Amendment rights of a Ku Klux Klan leader who addressed a rally of supporters, some of whom brandished firearms, and advocated violence and discrimination against Jews and blacks. The court held that this generalised advocacy was neither intended nor likely to cause immediate violent or unlawful conduct, and therefore could not be punished. Ironically, but predictably, this speech-protective standard has subsequently shielded inflammatory rhetoric in support of civil rights protests and boycotts.

The second basic free speech principle that would be violated by suppressing hate speech requires 'content neutrality' or 'viewpoint neutrality'. It holds that government may never limit speech just because any listener - or even, indeed, the majority of the community - disagrees with or is offended by its content or the viewpoint it conveys. The Supreme Court has called this the 'bedrock principle' of our proud free speech tradition under US law. In recent years the court has steadfastly enforced this fundamental principle to protect speech that conveys ideas that are deeply unpopular with or offensive to many, if not most, Americans - for example, burning a US flag in a political demonstration against national policies.

The 'viewpoint neutrality' principle was also essential to protect expression by pro-civil rights demonstrators during the civil rights movement in the 1960s. In many of the Southern communities where Martin Luther King and other civil rights activists demonstrated and aired their ideas, their views were seen as deeply offensive, abhorrent, and dangerous to traditional community mores and values concerning racial segregation and discrimination. Efforts to censor and punish these expressions, though, were thwarted by court rulings enforcing the viewpoint neutrality principle.

This principle reflects the philosophy, first stated in groundbreaking opinions by former US Supreme Court justices Oliver Wendell Holmes and Louis Brandeis: in a free society, the appropriate response to speech with which one disagrees is not censorship but counterspeech - more speech, not less. Persuasion, not coercion, is the solution.

Accordingly, the appropriate response to hate speech is not to censor it, but to answer it. This counterspeech strategy is better than censorship not only in principle, but also from a practical perspective. This leads to my next reason for opposing the censorship of hate speech.

Censoring hate speech is doubly flawed, because in addition to violating free speech principles, it does not constructively advance the cause of promoting equality and non-discrimination. In these important regards, censoring hate speech is at best ineffective, and at worst counterproductive.

This was the conclusion reached by the respected international human rights organisation Human Rights Watch, based on actual experience and observations in many countries around the world. In 1992 Human Rights Watch issued a report and policy statement opposing any restrictions on hate speech that go beyond the narrow confines permitted by traditional US First Amendment principles. It explains this position as follows:

'[T]here is little connection in practice between draconian "hate speech" laws and the lessening of ethnic and racial violence or tension. Furthermore, most of the nations which invoke "hate speech" laws have a long way to go in implementing the provisions of the Convention for the Elimination of Racial Discrimination calling for the elimination of racial discrimination. Laws that penalise speech or membership are also subject to abuse by the dominant racial or ethnic group. Some of the most stringent "hate speech" laws, for example, have long been in force in South Africa, where they have been used almost exclusively against the black majority.'

Other illustrations of the unconstructive impact of censoring hate speech can be drawn from history. One situation is that of Germany under Hitler. Given the unparalleled horrors of the Holocaust, surely even the most diehard free speech champions would support censorship if we could be persuaded that it might have averted that tragedy. Speaking for myself, as the daughter of a German-born Holocaust survivor, that is certainly the case. However, the historical record makes clear that censorship was no more constructive a response to the rise of anti-Semitic hatred in the Hitler era than it has been in other circumstances. This point was discussed in a recent opinion of the Canadian Supreme Court, which was considering a constitutional challenge to Canada's anti-hate law:

'Remarkably, pre-Hitler Germany had laws very much like the Canadian anti-hate law. Moreover, those laws were enforced with some vigour. During the 15 years before Hitler came to power, there were more than 200 prosecutions based on anti-Semitic speech. And, in the opinion of the leading Jewish organisation of that era, no more than 10 per cent of the cases were mishandled by the authorities. As subsequent history so painfully testifies, this type of legislation proved ineffectual on the one occasion when there was a real argument for it.'

Given the unique horror of the Holocaust, it is not surprising that even many individuals who support free speech in general want to make an exception for Nazi expression. This is illustrated by one of the ACLU's most famous - or infamous - cases ever: our defence in the late 1970s of the free speech rights of neo-Nazis to demonstrate in Skokie, Illinois, a community with a large population of Holocaust survivors. While the ACLU prevailed in the courts of law, our position was unpopular in the court of public opinion. Even many ACLU members - stalwart First Amendment champions in general - resigned from the organisation in protest over this position. Yet, along with many other American Jews, I support free speech for Nazis and other anti-Semites not despite the fact that I am Jewish and familiar with the evils of anti-Semitism, but rather, because of that fact.

The ACLU's executive director during the Skokie controversy, Aryeh Neier, a German Jew who fled to the USA with his immediate family, but whose extended family was exterminated in the Holocaust, has powerfully expressed this perspective:

'The most frequently repeated line of all in the many letters about Skokie that I received was: "How can you, a Jew, defend freedom for Nazis?"...The response I made most often began with a question: "How can I, a Jew, refuse to defend freedom, even for Nazis?" Because we Jews are uniquely vulnerable, I believe we can only win brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, I want restraints placed on power. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.'

Nadine Strossen is the co-author of Speaking of Race, Speaking of Sex: hate speech, civil rights and civil liberties, New York University Press 1995, and the author of Defending Pornography: free speech, sex and the fight for women's rights, Little, Brown 1996

Reproduced from LM issue 113, September 1998

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