An amendment for all seasons

It is somewhat unnerving to me the number of times during the past year I’ve had to remind people that hate speech is, in fact, protected under the First Amendment.

That’s why I was pleasantly surprised when I read an article on the Bloomington Herald-Times’ website Sunday about Thomas Buhls’ Confederate Heritage Rally, which occurred at the Monroe County Courthouse Square on Saturday.

In the article, a counter protester is quoted as saying that many of those protesting against Buhls believed hate speech should not be a protected right.

At least he understands that even a message touting white supremacy constitutes protected speech, I thought as I read the article.

Indeed, “hate speech,” as the counter protester defined it, is not a category of speech currently recognized under constitutional law.

Why?

Well, “hate speech” is impossible to define. It is an utterly arbitrary phrase that would be better defined as any speech a listener finds offensive.

And, if we censored offensive speech, the First Amendment would protect very little speech, as society’s most easily offended members would determine what speech is worthy of constitutional protections.

This, of course, was not the intended purpose of the First Amendment: The First Amendment was ratified to protect unpopular, sometimes offensive, speech — popular speech needs no constitutional protections.

In Texas v. Johnson, the famous 1989 U.S. Supreme Court case that invalidated prohibitions against flag desecration, the court stated, “The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.”

And in regard to racism explicitly, one need look no further than a 1991 decision coming out of a federal district court in Virginia to find that such speech is protected.

In Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, a George Mason fraternity was sanctioned by the university for having an “ugly woman contest.”

In response, the fraternity challenged the sanctions, arguing that the activity was protected by the First Amendment, and won.

In the ruling, the court unequivocally stated that, “The First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.”

But, as we know, the law did not interest the counter protesters at Buhls’ rally. They understood what the First Amendment protects. They just disagreed with it.

I find the idea that we should censor “hate speech” shortsighted.

I wonder if those who would do the censoring ever thought of what might happen to them were they ever to adopt an ideology not accepted by the majority.

For instance, I know a self-proclaimed Marxist who is outspoken in his dislike for some of the protections extended by the First Amendment. I often chuckle to think that if we were to get rid of the First Amendment, his ideology would be among the first censored.

There is a wonderful passage from Robert Bolt’s play “A Man for All Seasons” that illustrates this idea well.

In it, Thomas More — a 16th century English chancellor who would eventually be killed by King Henry VIII for not endorsing his divorce to his wife — explains to his future son-in-law, Roper, why he will not break the law to save his own life.

“What would you do? Cut a great road through the law to get after the Devil?” he asks. “And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?

“This country is planted thick with laws from coast to coast,” he continues, “and if you cut them down, do you really think you could stand upright in the winds that would blow then?”

“Yes, I give the Devil benefit of law, for my own safety’s sake,” Roper replies.

While I know many were offended by Buhls’ message Saturday at the square, we should not advocate for censorship of his message. As More so eloquently articulates, cutting down the law to get to those whose messages we don’t like will only hurt us in the long run and turn those being censored into free speech martyrs.

As a society, wouldn’t we rather the racists and bigots be allowed to speak so that we know who they are?

“Hate speech” is best fought with more speech. Bearing witness to one’s beliefs accomplishes much more than censorship ever could.


— nperrino@indiana.edu