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  • By Lt. Tim McMillan

Free Speech vs. Hate Speech- It's Time We Had A Serious Discussion

My fellow Americans, I think the time has come that we have a discussion. Now, understandably this isn't going to be an easy discussion. It's going to spark opinions on many sides and it's even going to challenge some people's deep-seeded beliefs of what is inherently American. Now, I want to go into this prefacing, I am not saying I have a right answer or perfect solution to this problem. However, I do think it's a discussion that needs to be had.

Before we go any further, we need to gain some true understanding of what the First Amendment to the Constitution of the United States of America really means and identify the amendments original intent and evolution. When I say the First Amendment, I am very specifically talking about the opening words, “Congress shall make no law respecting” and then five simple words, within it: “abridging the freedom of speech.” In a nutshell, I am referring to the freedom of speech. These are the words that were adopted by the First Continental Congress in 1791.

When James Madison originally wrote the Constitution in 1787, the First Amendment had a little more substance when it came to the freedom of speech. Originally, the amendment stated, “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments. The language was ultimately condensed, producing what would define the inherent unalienable rights afforded to all Americans, or The Bill of Rights.

Challenges to the freedom of speech would not begin to occur until the early 20th century. As a result of two landmark Supreme Court Decisions, Schenck v. the United States in 1919, and Dennis v. the United States in 1950, for the first time ever boundaries were established in which individuals could be criminal held responsible for things they had said or published. These two cases, established the “Clear and Present Danger” clause to free speech. In the 1950 Dennis v. U.S., Chief Justice Learned Hand defined “clear and present danger” to mean that, “each case, [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

In a nutshell, this meant that one could be held criminally liable if it was determined that their words presented a danger to society if they were allowed to freely express them. The “clear and present” danger standard is the basis behind laws such as terroristic threats exist on the books. Basically, Dennis v. U.S. made it unlawfully for someone to yell, “There is a bomb!” in a crowded airport when the intent was to inspire fear or chaos.

The point to this is understanding that indeed, Americans do not have a constitutionally protected right to say whatever they please at any time they want. Now, it is important to note, employees do not have a Constitutional right to free speech or freedom of expression at work. The Constitutional protection to free speech only applies when the government is trying to restrict it. This is why recently when I mentioned Colin Kaepernick’s national anthem protest or the NYFD Firefighter who made racist posts on Facebook, I never stated that either of these individuals had a protected right to not face retribution from their employers. Now, personally, I support Kaepernick’s right to protest, and not face scrutiny or punishment. However, the argument that he has the right to do so and not face repercussions from his employer, is not a valid argument from a Constitutional standpoint.

Now, what was the intent of America’s founders when they signed the First Amendment into law in 1791? The intent of the founding fathers was to ensure that the government was prevented from picking and choosing what ideas would exist in America. In essence, the freedom of speech was designed to establish an equitable sphere of ideas for all people.

Which, brings me to the primary topic at hand. Is it now time to consider that some speech we have allowed to freely exist and be constitutionally protected needs to be considered legally impermissible?

Explicitly, I am referring to hate speech. Is it time to consider that, hate speech should not have the legally protected right to exist in American society? Now, hang on…hang on, before you go anywhere, and start saying that this seems like some kind of fascist or socialist threat to the very fabric of America, let me explain.

First of all, the mere fact we consider that hate speech is a part of the very fabric of America is absolutely senseless and inexcusable for any nation that claims to be the leader of the free world…End of argument, thank you very much for reading. I hope you all have a great weekend.

Ok, just kidding (well kind of).

Hate speech does not occur in a vacuum. The concept that one can say, “All Blacks are dumb” or “All Jews are greedy” does not come without a cost is absolutely untrue. Indeed, these types of statements come at a significant cost to the groups of people they are being made against.

Often people like to cite the phrase, “Sticks and stones” as a means to suggest that words do not truly cause harm. However, not only is this not true, but it is a fundamental ethnic hijacking of the very phrase itself. The phrase, “sticks and stones may break my bones, but words will never break me” originally appeared in The Christian Recorder of March 1862, in the publication of the African Methodist Episcopal Church in Philadelphia. The phrase never actually had the ending, “but words can never hurt me,” as it is often recounted in modern times. The phrase was published by the church as a means of trying to keep African American children from having their spirit broken and developing learned hopelessness in a society that made is culturally permissible to use racial slurs against them. Basically, what I am getting at is that I’m all but 100% positive the African Methodist Episcopal Church did not publish the phrase with the intention of conveying, “Hey! Keep on calling me the N-Word. It’s no biggie, means nothing.”

All hate speech is an absolute attack on that equitable sphere of ideas that the founding fathers intended. Hate speech has the distinct ability to shut down the free speech of minority groups and not majority groups. Hate speech ultimately harms a free equitable sphere of ideas by all people, just as much as government censorship does.

The modern assumption of the First Amendment right to free speech is that all person’s speech is equal. However, the concept that all persons have symmetrical speech in America, wasn’t even close to being true when before the ink dried in 1791. This is part of the problem with assuming that the First Amendment represents upholding the concept of blind justice. Blind Justice states that in order for something to be legally righteous, then there must be neutrality of the dispensing of justice. However, justice is not neutral nor equitable when it makes the assumption of equality upon implementation. Instead, the outcome produces justice that is blind to the inequality that exist in the world already and therefore the results are inherently unequal. If you read the article I published just yesterday, you will note just how unequal the racial disparities really are in America when it comes to minorities.

Now, the argument against providing legal liabilities on individuals for hate speech is that it would represent an overstepping of the government’s control and a limiting of American’s free right to expression. Ok, by superficial definition this is indeed true. However, it isn’t as if we don’t have laws the provide legal consequences for what someone says. No, I’m not referring to just laws such as Terroristic Threats, that hold one accountable for threats against public safety or individuals. Rather, I am talking about an entire an enormous group of our current laws in existence. Specifically, I am referencing the existence of laws that protect the public against acts such as fraud, forgery, or violations of trust agreements. If I defraud someone out of a million dollars by lying to them, this is indeed a crime. However, at its core, is not what I have done merely involve the act of free speech? Why is the person who allowed themselves to be defrauded not held accountable for believing my free speech?

This may seem silly, but in truth, are there not similarities to the cost accrued by being a victim of fraud and being an entire categorical demographic that is victimized by hate speech? Both are a hardship for the victim(s). Both render a victim(s) at an economic disadvantage. Both involve a devaluation on one person or group of individuals and empowerment of another person or group of people. Now, I cannot imagine anyone lobbying for the decriminalization of fraud laws. So, why is it that we are so adamant at keeping hate speech legal?

One major problem with actually engaging in a meaningful debate over the criminalization of hate speech is that politicization of hate speech. Some people on the Right assume that when you bring up the topic of making hate speech illegal, that means they will be deprived of their daily dose of banter by the likes of people such as Ann Coulter or Milo Yiannopoulos. This is based largely on the idea propagated by these very individuals that the Left is attacking their free speech. As a result, people who largely may be unaware of many of the things, any of these people actually say, suddenly feel compelled to defend them out of political loyalty.

In reality, there is a difference between what Milo or Ann Coulter say and categorically defined hate speech. At times a very slight difference, however, there is a difference none the less. Basically, the Milos and Ann Coulters of the world share repugnant and skewed views of facts regarding groups of people. However, they aren’t suggesting that all Jews should be exterminated like Neo-Nazis or advocating the lynching of Black People like the KKK. There is room to debate the views of people like Milo. However, there is no wiggle room what-so-ever, to debate the hateful advocacy of violence. Admittedly, there is a slippery slope here, and it is difficult to say how we walk the thin line between the Milos and Neo-Nazi’s, without diving into the true suppression of opinions that do not present a “clear and present danger.” Truthfully, I do not have an absolute answer to how we hold this line without crossing it too far to begin a downhill roll towards being exactly what the founding fathers didn’t want.

Ultimately, the hateful advocacy of violence against groups of people indeed does produce a “clear and present danger” to society. We only need to look at examples such as Dylann Roof’s ghastly crimes in Charleston, S.C. or as recent as the stabbing deaths of the two men in Portland, OR. It doesn’t matter if 99% of the persons who use hate speech to advocate violence never act upon it. Because it is the very catalyst that motivates 1% of individuals to indeed commit acts of violence. This is no different that ISIS’s recruiting methods or propaganda. People are quick to cry out for entire regions of land to rendered a nuclear wasteland when it comes to ISIS. However, the mere mention of making it illegal to say that all Hispanics deserve to die is “un-American.”

As of right now, the current situation and interpretation of one’s First Amendment Rights to free speech has produced a climate in which hate, racism, and prejudice cannot be eradicated from modern culture. It doesn’t matter if the overwhelming majority of Americans disagree with hateful views. The hateful climate cannot be completely eliminated because the majority of people are defending the very thing they don’t agree with. To say this provides a bizarre social environment is an understatement.

So in closing, do I have a definite answer to the discussion of criminalizing hate speech? No, honestly I do not. However, I do believe that society as a whole, wishes to move in a progression that will allow our future generations to be free from prejudice based hate. With that in mind, in order to actually cultivate a climate for freedom of diversity to exist, the time has come when we need to consider how detrimental hate speech is to diversity and how we can effectively move forward from it.

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