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Hate speech and freedom of speech

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Jonathan Rauch argues in his “Defense of Prejudice: Why Incendiary Speech Must Be Protected” that despite all the pain hate speech causes to the groups and individuals it targets, it must be protected.  In “There’s No Such Thing As Free Speech and It’s a Good Thing Too,” Stanley Fish argues that free speech is a sham-it’s a phrase tossed around by those seeking to use it to gain power.  When their opponents use it, it’s no longer important to them.

Rauch comes to his conclusion from something close to the marketplace of ideas theory.  Scientists, for example, although they seem to be impartial and authoritative, are actually all fueled by biases.  It is the competition and collaboration of all these biases which leads to an unprejudiced field as a whole, and the best ideas win.  Rauch seems to thin that letting society or the government pick which speech is to be tolerated and which not would be similar to the old-fashioned way of forming consensus used by kings and dictators: eliminating the opposition.  He also sees the movement extending past hate speech and into prejudice in all its forms-from hate speech codes in universities to laws treating the same act more harshly if it was motivated by violence.  In the end, minorities can only lose out when dissident opinions are banned.

Fish points out, however, that even Milton’s Aereopagitica, a famous defense of speech and tolerance, he ends by excluding Catholics.  Fish thinks this is indicative of a larger notion; that by defining a space of tolerated or free speech, we inherently provide barriers against what is intolerable or gibberish.  For example, the First Amendment does not allow freedom of action, and therefor allows speech which is also action to be regulated.  Furthermore, pure free speech can only be maintained when no one has any stake in what they’re saying-Universities might say they’re for free expression, but if so, why have classes and tests?  Because those things work toward the University’s actual purpose.  If speech works to that purpose to some degree that is the degree to which it is tolerated.  On another level, answering hate speech with more speech would only work if contrary opinion could take away the pain, fear or humiliation.

I don’t think I could pick one of the authors here as the winner of the debate because their arguments diverge.  This does remind me, though, of the debate running in the Transcript last semester about hate crime legislation.  On one side was the In Righting columnist and some letter writers, and on the other was the From The Left columnist and some letter writers.  Though the debate went on for weeks, neither side presented a good case (or anything as intricate as the arguments here).  Most notably, the side for hate crime laws failed to come up with any rational justification what-so-ever.  Although I think many hate crime laws as written are too restrictive and in general I don’t like content-based restrictions, I can think of one rational that makes some sense.  Take a cross burning and compare it to two 13-year-olds playing with matches on their neighbor’s property.  With no hate crime laws, both receive the same charges-trespassing, destruction of property, probably not arson.  But now ask: which action does society have more of an interest in preventing/punishing?  This is getting to Fish’s argument.  Does the accidental act of two kids harm society as much as a KKK cross-burning?  Doubtful.  And the reason is content-based.

I’m still not sure that overcomes the necessity of free expression Rauch argues for.  And it could be said that by confining his argument (more or less) to this country, Rauch’s arguments could be slid into Fish’s schema-proving how free expressions serves the underlying purpose of our society within confines.

Freedom of speech, mass media, and debate

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A response to Taking Sides – Clashing Views in Mass Media and Society – Issue 8

In the affirmative argument, Kathleen Jamieson argues that the First Amendment has protected the media and allowed it to cover many sides of issues, even sides the government might want to suppress.  In the negative response, Thomas Patterson says the mainstream press hasn’t fought for its own freedom, routinely excludes unpopular opinions, and is more concerned with dollars than debate.

Jamieson thinks the press has the freedom and contains the robust debate the framers intended when they wrote the Bill of Rights.  She cites the case law progressively strengthening this right and also the development of broadcast law, which has as its heart a notion of opening discussion for the public good.  Watergate and the Pentagon Papers provide two good examples of the press using this power to defend citizens against the government.  Political speech that offends and may even seem irrational today is protected as vigorously as the political speech of the part in power.  And voters today are exposed to many different sides-everyone from Marxists to Buddhists to Bill Clinton in the 1992 primaries, for example.  The development of technologies has broadened communication and debate as well.

Patterson says Watergate and the Pentagon Papers are an oasis in a desert of mundane mainstream press practices.  The mainstream press has not been the driving party in many First Amendment cases, and has been played like a fiddle by people like McCarthy.  The press control the government orchestrated in the Persian Gulf War is a good example of the media’s willingness to be controlled; only the alternative press protested.  Patterson argues that individual publications and broadcasters have displayed little interest in public debate and more in being able to exclude opinions they don’t like.  And finally, he says the press is more interested in making money than anything else.  Television and competition for customers have dumbed down news more than opened debate.

What interests me about these articles is how both look at the same case law and come to different conclusions.  Jamieson sees Miami Herald v. Tornillo as the court defending the press’ right to refuse to publish even if it’s in the state’s interest.  Patterson sees the same case as strike against hearing all sides in a political debate.  Jamieson sees the series of cases defining the First Amendment as the government’s (or at least, the court’s) struggle to guarantee free expression; Patterson says the mainstream press are rarely the ones fighting for the freedoms they enjoy.  Patterson’s point is interesting and I wish someone had thought of it while I was in media law class.  Why is it that the mainstream press has not been on the front lines of its own freedom?

I think Patterson’s final point, about commercialism over communication, deserves its own chapter.  Giant corporations and profit-minded individual ownership of mass media helps narrow the marketplace of ideas in key ways.  I’m going to make this point in my paper, too, because I think Internet news may be even more apt for this-most people get news on the internet from companies that have never had anything to do with news (Microsoft, AOL, Netscape).  Though they outsource to more traditional providers (AP, Reuters, etc) they’ll happily go with the lowest bidder and have no sense of journalistic mission whatsoever.

Electronic Beat: Internet Ethics and Speech

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Compiled by Jason Morrison

Last updated 28 Oct 1999

The following links send you to sites I’ve found useful in my search for a system of ethics for the internet. The plan is to eventually compare this ethical system or series of systems with those used by journalists. Because of the structure of the net, it may prove useful to define three different groups for which systems of ethics may be written:

  1. Users (who view web pages, purchase products, etc.),
  2. Publishers (who create and maintain web pages, write articles, and sell products),
  3. and Governing Bodies (who maintain domain names, national governments, and other groups in a position to enhance/alter the flow of information between the above).

The third category seems to have the most rigorous ethical systems devised, not by members of that category but usually by watchdog-type organizations and free speech organizations. In short, those with a vested interest in the actions of members of category three.

Category one, on the other hand, is a bit less interesting. Most of what I’ve found so far are lists of ‘netiquette’ dos and don’ts. Still, there may very well be something more out there, and I will continue to look.

I have yet to find much in category two, but I believe that is because most web publishers approach their work as and extension of their current profession, i.e. journalists, advertisers, scholars, etc. It is also interesting to note that because of the ease of publishing on the web, John Q. User from category one may also have a homepage placing him in category two as well. The lines between one and two are often blurred by the nature of the medium.

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