SANCTIONING HATE SPEECH

One of the highlights of the recently televised Academy Awards Ceremony was the powerful speech delivered by multi-talented Tyler Perry as he accepted the "Jean Hersholt Humanitarian Award." His message centered on "refusing hate," and refusing to succumb to "blanket judgments," something his mother had taught him as a boy growing up. His moving story about a homeless woman who had approached him for help more than a decade ago, who told him she thought he would hate her for asking for help, resonated emotionally with many in the audience. Tyler Perry's poignant message couldn't help but make us reflect on the current state of affairs in many parts of the world where "hate speech" seems to dominate much of every day's communication. Our own country is no exception. Most of what would qualify as hate speech in other western countries is legally protected free speech recognized in the First Amendment to our Constitution. There is no legal definition of "hate speech" under U.S. law. Nevertheless, it is not unreasonable to recognize a fine line between free speech and hate speech. Free speech encourages debate, whereas hate speech incites violence. Hate speech is a term for speech intended to degrade, intimidate, or incite violence or prejudicial action against someone based on race, ethnicity, national origin, religion, sexual orientation, or disability - constitutionally protected characteristics under anti-discrimination laws. Because of the latter, some would argue that First Amendment protection should not apply to hate speech. However, our Supreme Court, in "Matal v. Tam" in 2017, reaffirmed that there is no exception for hate speech in the free speech rights protected by the First Amendment, and that the U.S. government may not discriminate against speech on the basis of a speaker's viewpoint. Government can't bar hate speech unless it is direct, personal, and either truly threatening or violently provocative. Hate crimes, however, don't violate the First Amendment because they are based on actions rather than expressions of opinion. This exception also includes intimidating symbolic actions, like cross burning, that are intended to make victims fear for their lives. Legal challenges covering freedom of speech have been plentiful. Over time, the Supreme Court has issued dozens of opinions, while the ACLU, since 1940, has filed more than 150 cases. With technology constantly in transition, the response to these challenges have become more and more nuanced. Richard Stengel, a former editor for Time magazine, in an op-ed in the Washington Post, on Oct.29, 2019, writes: "The First Amendment protects the "thoughts that we hate," but it should not protect hateful speech that can cause violence by one group against another. In an age when everyone has a megaphone, that seems like a design flaw." Zachary Laub, publications editor for the Brennan Center of the Council of Foreign Relations, published results of research intended to establish correlations between hate speech posted on-line and the increase in violence toward minorities, including mass shootings, lynchings and ethnic cleansing. He hypothesized the connection between anti-refugee Facebook posts by the far-right "Alternative for Germany" party and attacks on refugees in that country, white supremacy on-line communications and the killing of 9 black clergy and worshipers in Charleston by Dylann Roof, the 2018 Pittsburgh synagogue killing of 11 by Robert Bowers, and the 2019 mosque shooting in New Zealand that killed 49. It seems credible to propose that social media have a tendency to catalyze hate crimes, and that previously rendered legal opinions about hate speech and freedom of speech may need to be revisited. As the digital age continues to evolve, the application of freedom of speech to hate speech becomes more controversial. Attempts at developing a national hate speech law face opposition because questions arise about who will decide what constitutes hate speech. Decisions by social media companies to restrict certain content face charges of censorship. Nevertheless, we might argue that unregulated hate speech normalizes prejudice and encourages discrimination. Ultimately, we need to consider that the rise of extremism may be inevitable if hate speech continues to be legally protected. Theo Wierdsma