We all, at least in the theoretical sense, have the right to speak freely, to criticize and to debate. Good ol’ Thomas Jefferson made sure it was explicit — the first and most important liberty alongside freedom of the press and the freedom of worship guaranteed by the U.S. Constitution. It’s not an entirely American triumph, though. Jefferson and the founders looked up to men who also heralded human individualism and fought absolutist regimes. Do not tread on us, they said. You may legislate. You may tax. You may conscript the citizenry. But you cannot, ever, suppress speech.
Despite this strong and eloquent assertion, our theoretical right to free speech is a big mixed bag. The executive branch, historically, hasn’t been much of a fan. John Adams, for example, signed the Alien and Sedition Acts to prohibit criticisms of his presidency, and even Mr. Free Speech Jefferson wrote to Walter Jones in 1802 to tell him that he “deplore[d] … the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write for them.”
The Supreme Court, on the other hand, has a history of protecting even the most vindictive kinds of speech. If we really want to, we can burn the American flag in protest (Texas v. Johnson), light up crosses on lawns (R.A.V. v. City of St. Paul) and pump Westboro Baptist Church placards up into the air, loudly and proudly (Snyder v. Phelps).
Today, free speech is an even bigger, more complicated mixed bag than it’s ever been before. It’s everywhere. Milo Yiannopoulos invokes it whenever an event of his is shut down by protesters or when footage of him justifying and subsequently defending pedophilia resurfaces. Alt-right Richard Spencer gets a lot of attention on Twitter whenever someone punches him in the face (two times, now, by the way).
Yes, both of them have the legal and theoretical right to say and talk about whatever they want to talk about. It’s likely that if Milo or Spencer were taken to court for something offensive they said, they’d win.
But, here’s the thing. You can’t have your cake and eat it, too. If you are an ardent defender of your own guaranteed legal and natural right to free speech, it follows by logic that you ought to be an ardent defender of everyone else’s. You can speak. You can hate. You can burn flags and crosses and hold up Westboro Baptist Church signs. But I, too, can speak. I can say something about you, to you or condemn your behavior. I can criticize. I can protest.
What I do, though, has a legal limit. Physical assault and violence in response to hate speech is not legal. Even though the speech may illicit or promote violence, if it’s not punching, kicking or shooting, any kind of physical retaliation I apply will get me and only me in legal trouble. Whether that’s the way it should be is more an ethical question — which is also hotly contested among old and contemporary intellectuals alike. Philosopher and psychologist Frantz Fanon and civil rights activist Malcolm X would tell you that if someone is arguing against your humanity, your right to life and your right to be treated fairly, then don’t worry about jail. Martin Luther King Jr. and Mahatma Gandhi would argue otherwise, that violent means to moral ends are dangerous and can lead us down a rabbit hole we shouldn’t ever go down. Like I said — a mixed bag.
But what about intellectual diversity? If college students do have a right to criticize and to protest, and decide to criticize and to protest, they’re sheltering themselves from ideas different than their own. Now, should we, first and foremost, listen to ideas other than our own? Yes. Pragmatists and philosophers William James and John Dewey both saw ideas as instrumental to solve problems, and they figured that we ought to use our given democratic institutions to debate and subsequently flesh out the best ideas. I’m a big believer in intellectual diversity and enjoy having my beliefs challenged, sometimes tossed out the window entirely. However, James and Dewey also said that we need to agree on method. Truths can vary, but the pursuit of them must nonetheless be rigorous.
Hate speech is not a method. It’s not a truth. It contradicts the human experience and more popular beliefs that man is created equal with unalienable, natural rights. It has visible and very real consequences and falters when rigorously debated with both a priori and a posteriori reasoning. Sure, you can say it. You can say whatever you want; it’s a free country. But you won’t, nor should you ever, get a seat at the table.
Deciding what constitutes “Hate Speech” is where things get tricky. An institution (state or otherwise) that can decide what does and does not constitute hate speech is likely to misuse that power to silence critics — similar to the guise under which the alien and sedition acts were passed.
The United States hardly considers cases of hate speech. That’s the biggest issue. People here conflate the notion of free speech and hate speech—on a very parochial and often mistaken view of their constitutional rights— but hate speech is never prosecuted through the judicial system so set up. That’s part of the reason why people like Milo Yiannopoulos can spew their hate in the United States under the guise of “free speech,” but they wouldn’t stand a chance in places like the UK where they would certainly face legal challenges. Free speech is not equal to hate speech, that shouldn’t be controversial at all.