In This Era of Fake News, It's Time to Talk About Regulating Hate Speech

Should there be constitutional protection for so-called hate speech? I'll be in Dallas on Tuesday to debate this very topic. A preview:It is important to keep in mind that the Constitution did not come to us from Mount Sinai. It is the product of men, not gods. How to interpret it properly is a topic of perennial debate. This is certainly true for the First Amendment, which was ratified in 1791. From the beginning, at least some of our Founding Fathers believed that a commitment to freedom of speech did not mean a right to defame, to discriminate or to spread malicious lies for political gains. Later, Abraham Lincoln closed treasonous newspapers and arrested their editors. After World War II, the U.S. government prohibited the publication of anti-Semitic or other pro-Nazi propaganda in occupied Germany — a prohibition that remains law in Germany, which is hardly a despotic system. Indeed, most democratic countries, including Great Britain and Canada, forbid similar propaganda.In the United States, an absolutist position has been embraced by organizations such as the ACLU and adopted, to an extent, by the U.S. Supreme Court. The most significant case, Brandenburg vs. Ohio, which protected violent speech by the Ku Klux Klan, is of fairly recent vintage, having been decided in 1969. Constitutional interpretations change more frequently than most people probably realize, and given our current political climate, awash in fake news and speech targeting various minorities, it is an excellent time to revisit the question of "hate speech."First, I think terminology is important. In my own scholarship on freedom of speech, I don't use the misleading term hate speech. One can justifiably hate many things. Indeed, it can be argued that in some ways hatred can be a civic virtue when it is directed, in the form of public contempt, at ideologies so wicked as to be incompatible with true democratic government. For example, the 14th Amendment declares that ours is a government that opposes inequality — in other words, we are committed to equality as a constitutional right.Therefore, my work has focused on what I call "anti-equality speech," or speech that aims to create inequality for targeted groups. In my last book, The End of Straight Supremacy, I detailed at length the ways in which anti-equality-speech campaigns effecting the disenfranchisement and dehumanization of targeted classes often precede the physical destruction of people in those classes. The most infamous example is the Holocaust, but there are plenty of other examples in which anti-equality speech has led to violence. These include Stalin's attack on rural farmers, the Rwandan genocide and racist-group libel campaigns in the United States, which the Supreme Court once held punishable consistent with the First Amendment.How can white-supremacist speech or speech declaring the biological inferiority of women to men or speech claiming that homosexuality causes men to rape children, not perpetuate the class-based inequality of easily definable minority groups? In my view, restrictions on such speech are not only permissible but, in fact, commanded by the 14th Amendment's commitment to equality. An easy way to understand my view is to understand that defamation — spreading false information that results in a reputational or monetary injury of an individual — is already proscribed in every U.S. jurisdiction. So why do defenders of an absolutist vision of free speech think that defamation that results in the injury of discrimination against a minority group is different? It isn't.Any system that attempts to address anti-equality speech must do so carefully. Complicated questions will arise. I recently received a letter from an anxious librarian who wondered if my theory would preclude criticism of religious ideologies that promote the inequality of women or of gay people. I believe it would be absurd to say that, in the name of equality, we cannot critique ideologies that amount to practices of discrimination. This is different from spreading falsehoods about people based on their race or sex or sexual orientation. Still, difficult situations will arise. But as Justice Oliver Wendell Holmes Jr. once said, "Even a dog can distinguish between being stumbled over and being kicked." I am confident that judges and juries can be as discerning.Shannon Gilreath is a law professor at Wake Forest University. He wrote this column for The Dallas Morning News. Email: sgilreath@wfu.eduAttend this live debateShannon Gilreath and David French will debate this topic live in Dallas this week. What: The National Constitution Center will hold a traveling town hall featuring top First Amendment experts debating whether the First Amendment protects hate speech online. When: 6-7:30 p.m. Tuesday Where: Debate Chamber at Old Parkland, 3819 Maple Ave., Dallas Info: This event is free but requires registration; RSVP to kmaloney-gross@constitutioncenter.org Web: constitutioncenter.org  Continue reading...