A Look Back: The First Amendment and ‘Hate Speech’

By David R. Wheeler, Editor

Note: This article was originally published on June 9, 2017.

Like everyone else, I was appalled by the news that a St. Petersburg resident had posted yard signs featuring homophobic, anti-semitic, and other hateful rhetoric. According to an article and a photo published in the Tampa Bay Times, the signs featured a red circle with a line through the middle (the “Ghostbusters” symbol) crossing out particular groups of people: “Fags,” “Jews,” “Infidels,” “Retards.”

The final sign said “…Great Again!”

According to the Times report, the signs appeared Saturday evening and disappeared within 24 hours.

Precious few people in 21st-century America would agree with or condone the messages conveyed by the signs. The immediate question is: What do we do when a private citizen posts offensive signs on his private property?

The larger question is: How do we respond, as a society, to speech that demeans particular groups of people?

In the case of the yard signs, I know what my answer would be: Encourage the rest of the neighborhood — and indeed, the entire city — to post signs condemning the hateful rhetoric and promoting tolerance, unity, and inclusivity. Additionally, as the son of a Sunday school teacher, I could recommend some biblically inspired signs to local churchgoers, such as Galatians 3:28: “There is neither Jew nor Gentile, neither slave nor free…”

Which leads to the bigger question: How to deal with hateful rhetoric on a macro level. My answer? Fight speech with speech. Let the best idea win.

Unfortunately, the knee-jerk response implied by the Times article was for officials to investigate whether these signs constituted “hate speech.”

“City officials declined to comment on whether the signs violated any standards for hate speech,” wrote Times staff writer Taylor Telford.

Any standards for hate speech? Hmmm. If there are, in fact, any “standards” for “hate speech” in a St. Petersburg city ordinance, that ordinance would not withstand a constitutional challenge.

As a journalism professor who wrote a dissertation on First Amendment law, I know that the Constitution protects the right of citizens to hold hateful views and say hateful things. Indeed, the First Amendment protects the right of citizens to say anything they want, with only a handful of exceptions. One exception is what’s called a “true threat”: You can’t threaten to physically assault or kill a specific person. (Satirical and hyperbolic threats are not considered true threats. If they were, hip-hop as a genre would be mostly illegal.) Another would be child pornography: You can’t make it, own it, or sell it.

There are a few other exceptions, but “hate speech” is not one of them. Hate speech is protected by the First Amendment.

To get an attorney’s perspective on this issue, I recently spoke with James B. Lake, a partner at the Tampa-based law firm Thomas and LoCicero and an adjunct professor at Stetson University College of Law.

“One of my favorite book titles is More Speech, Not Less,” he said. “That’s the remedy in situations such as this.”

He went on, “The U.S. Supreme Court in 2011 said the First Amendment protected equally hateful speech protesting a Marine’s funeral. That principle applies equally or with even greater force here, where the speech is posted on the speaker’s private property.”

Finally, he added, “I encourage neighbors who disagree with these signs to post their own expressing a contrary message. But it’s not the job of government to regulate and punish political speech.”

This is not to say that there are no penalties for expressing hateful views. Every day, people are dumped by their boyfriends and girlfriends, estranged from their family members, and fired from their jobs because of hateful, backward, and bigoted things they say. A couple of weeks ago, a longtime Denver Post sports reporter was fired for tweeting that he wasn’t “comfortable” with a Japanese person winning the Indy 500. Earlier this week, Harvard announced that it had rescinded admissions offers to 10 students who wrote offensive messages on social media. After big companies such as Toyota recently complained that YouTube was featuring their ads on videos that promote hate (including ISIS propaganda), the video-sharing site announced that no video would feature an ad unless the video has at least 10,000 views.

These are examples of how a civilized society deals with hate.

In contrast, there are myriad problems with the knee-jerk reflex of asking the government to silence someone whose views we find repulsive. They include, but are not limited to, the following:

  • Who gets to decide where you draw the line?
  • Whom do we trust with the authority to silence the person in question?
  • Merely by talking about the hate speech, we are inevitably repeating that hate speech. Should the Tampa Bay Times or AliveTampaBay be forbidden from publishing the offensive language spotted on those signs? Many more people saw the yard signs and heard the hateful message after seeing it in the media than would have seen or heard it otherwise. There is a whole body of constitutional law that would need to be overturned if we believe the media has a special right to say things that ordinary citizens cannot. Currently, the Supreme Court recognizes no special speech rights for the press. Media outlets and ordinary citizens have the same speech rights.

If an ignorant man wants to post ignorant signs on his private property, let him practice his free-speech rights and parade his ignorance. The rest of us will practice our free-speech rights by condemning his actions.

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