Tuesday, November 7, 2017
by Barbara Stark, Professor, Hofstra Law, guest contributor*
As Professor Laura Weinrib has explained in her book, The Taming of Free Speech, the ACLU’s defense of Nazi speech began in the 1930s as a strategic choice that the ACLU hoped would benefit emerging labor unions. Defending Nazis proved that they weren’t Communists. When the ACLU’s Arthur Garfield Hays was defending a union, opposing counsel tried to discredit him by citing his defense of Communists. The judge noted that Hays, who was Jewish, had also defended Nazis. “Certainly you cannot accuse Mr. Hays of being a Nazi,” he said.
But that was then. After World War II, the drafters of the major international human rights instruments saw how crucial vicious propaganda had been to the Nazis’ genocidal programs. Representatives of newly independent states, similarly, understood the role of racism in the European colonization of the Third World. They all agreed that hate speech, including anti-Semitic and racist speech, needed to be restrained.
Prohibitions against hate speech, accordingly, were included in several major instruments. The Genocide Convention of 1948 prohibits “[d]irect and public incitement to commit genocide” (Article III(c). The Convention on the Elimination of All Forms of Racial Discrimination requires States Parties to make punishable “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof” (Article 4(a). The International Covenant on Civil and Political Rights provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (Article 20(2)).
The United States rejected these prohibitions on First Amendment grounds, and took reservations to the hate speech provisions when we ratified these conventions. Several other western democracies were also wary, at least in the early post-war years. The most effective way to counter hate speech was with more speech, we insisted. Truth would ultimately prevail in the marketplace of ideas.
Over time, the United States reaffirmed the sanctity of the First Amendment, even as those who once agreed with us began to moderate their views. By1969, in Brandenburg v. Ohio, the United States Supreme Court held that the First Amendment protected the Ku Klux Klan’s “incitements to violent racial hatred” because such incitements were not made under circumstances where the audience was likely to immediately act. As Frederick Schauer explains:
"In the context of hate speech, therefore, Brandenburg stands for the proposition that the United States’ restrictions on the incitement of racial hatred can only be countenanced under the First Amendment when they are incitements to violent racial hatred, and even then only under the rare circumstances in which the incitements unmistakenly call for immediate violent actions, and even then only under the more rare still circumstances in which members of the listening audience are in fact likely immediately to act upon the speaker’s suggestion. "
In the 21st century, the United States has become, not a beacon of hope in a dark world, but a haven for racists, white supremists, Nazis (and purveyors of Nazi memorabilia), and members of the alt-right, like those who convened in Charlottesville. In contrast, as Professor Schauer notes, “[M]uch of the rest of the developed democratic world has by now carefully considered the American resolution of numerous freedom of expression issues … and has after this consideration deliberately chosen a different course.”
Thoughtful American commentators argue that democracy requires protection of hate speech because it is up to the people, not the state, to reject it. Professor Robert Post cites “national revulsion” over Charlottesville, for example: “The public could discern the filth beneath their message.” But even before he finished writing, the President of the United States doubled down, insisting there was “blame on both sides.”
These are dangerous times. “Truth” will not inevitably triumph. The prohibitions against hate speech embraced by the rest of the western democracies are clear, but nuanced. We should withdraw our reservations to the human rights conventions and join them. The alternative, in a post-Charlottesville world, is to leave regulation of hate speech to media like Facebook, which has noted that hate attracts a great many hits, and a President who revels in it.
* The author thanks Ellen Yaroschefsky for organizing the panel "Hate Speech After Charlottesville," held at Hofstra on Oct. 2, 2017, and Eric Freedman and Jonathan Lightfoot for their thoughtful remarks.