Do not prosecute hate speech
In March, a woman dressed all in black like a Nazi SS officer and wearing a swastika armband got into an altercation with several local residents of Laguna Woods, California. They tried to get her to remove the armband and she began shouting antisemitic comments. The Orange County Sheriff’s Department, which was at the scene, recommended to the district attorney’s office that she be charged with several crimes.
But nothing happened. A spokeswoman acknowledged that the office had dropped it “for lack of sufficient evidence to prove a crime had been committed.”
Similarly, when antisemitic fliers began appearing on Westside doorsteps and then in Pasadena, Beverly Hills and elsewhere, law enforcement quickly became involved. Last month, the Los Angeles Police Department said its Major Crimes Division was “aggressively investigating” and would “pursue every avenue to identify and prosecute” those involved.
But if I had to guess, I’d say that not much will come of that case either. And if some charges are brought, they’ll be for trespassing or disturbing the peace or some such tangential crime — not for the hate speech itself. Same goes for the people who unfurled the “Kanye is right about the Jews” banner above the 405 Freeway in October.
It’s a good thing that we as a society have made it very difficult to prosecute people who engage in hateful speech. “Congress shall make no law … abridging the freedom of speech,” says the 1st Amendment. That’s our bedrock principle: We don’t toss people in prison for saying even the most offensive, bigoted or politically indefensible things.
Of course free speech is not absolute, nor should it be. Government can prosecute people for expressing “true threats” or “fighting words” or for “incitement to imminent lawless action,” among other things.
But for the most part, speech and expression — including marching around wearing swastikas and waving racist banners and tweeting or podcasting hateful sentiments — are protected.
“Generally speaking, the law protects expression of all viewpoints, including offensive ones,” says UCLA law professor Eugene Volokh. “The chief reason is that the legal system doesn’t trust the government — or even the courts — to decide what’s offensive enough to be banned and what is not.”
Some people think that’s a copout.
We regulate other forms of expression, they say, such as obscenity, incitement, libel and false advertising. So why shouldn’t we also regulate hate speech? No societal good is served by letting Nazis and Klansmen march down our streets protected by the police. Given that this is a time of rising racism and antisemitism, they say, perhaps we should rethink 1st Amendment “fundamentalism” and impose some rational limits.
I disagree. I come down on the side of more speech, not less speech.
The reason the American Civil Liberties Union defended the right of Nazis to march through a Jewish neighborhood in Skokie, Illinois, in 1978 is that it understood that if you don’t defend free expression when it’s used by abhorrent people with repugnant beliefs, then it won’t be there for you when you need it.
If Nazis are banned today, communists could be banned tomorrow and democratic socialists the next day. Or Democrats, for that matter.
When speech is restricted, it is often at the expense of the weak, unpopular, poor or marginalized, as well as those who dissent from mainstream views.
During the civil rights movement, who do you think was arrested for unlawful assembly and for “distributing literature without a license” or for making “statements calculated to breach the peace”? Hint: It wasn’t the Ku Klux Klan.
Hate speech isn’t harmless. It can be painful and damaging in its own right, and it often reflects rising hatred in the community that needs to be closely monitored and publicly renounced. There’s a connection between hate speech and hate crimes, including violent crimes.
These are tense, frightening times, with tensions running high. Polls show that about 20% of us from both political parties agree or strongly agree that political violence can be acceptable. The antisemitic incidents in Laguna Woods, Beverly Hills and elsewhere are deeply disturbing. It is in tense times like these that our foundational principles are tested.
But the solution cannot be to arrest or prosecute people for expressing ideas and opinions. The United States rightly allows people to wear shirts saying “F— the draft” and to burn the American flag. It also lets them ridicule other people’s religions. And it permits the expression of hateful points of view.
We should fight hate crimes and hate speech, but our best weapon against hate speech is more intelligent, more humane speech.