Actually, come to think of it, the Red Scare is a perfect example of why hate Speech laws are a **BAD **idea. It would have been so easy to make Communist propaganda = “hate speech” , and all those who just espoused some communist ideals would have been imprisoned. Thanks. You made a excellent point… for the other side.
Argument from popularity is a poor argument. Lots of countries, including many of the freest ones, have had similarly flawed laws on any number of topics; there are people alive today who can remember when laws against homosexuality were considered as infallibly decent as laws against hate speech ever have been.
We’re here to discuss the pros and cons of that sort of thing.
MrDibble, in one sentence a few posts ago, provided a better argument in favor of hate speech laws than any previous poster in the thread did in whole paragraphs, and without any of the irritating righteous indignation that so often accompanies arguments on this topic.
In post #372, DSeid gave a series of examples of hate speech law violations that were not “advocating or threatening violence”: BDS activism, “Get Lost Jerk”, “wounding religious feelings”, etc.
That wasn’t part of the holding in R.A.V.. You’ve been repeating this nonsense on this board for years and you were completely wrong then and you are completely wrong now. The statute in question was struck down on the basis of “Overbreadth” because it conceivably criminalized protected speech as well as unprotected speech and because the statute engaged in viewpoint/content discrimination. At no point did the unanimous Court view the act in question as “protected speech.” In fact, the Court as part of its Strict Scrutiny analysis determined that St. Paul could have easily criminalized the behavior with a less broadly worded statute (since under SS the law must promote the compelling interest in the least restrictive/most narrowly tailored manner possible).
So given that you completely and repeatedly misunderstand an important 1st Amendment precedent and apparently don’t understand the contextual jurisprudence that goes along with it, maybe you just don’t know enough about the topic to make informed criticisms about US Free Speech Law.
A bit of a nit-pick here, though your other points are spot-on. At least in some jurisdictions, an individual need not be specifically named in an action for defamation if their identity as the subject of the alleged defamation can be reasonably deduced by a third party.
But I think one important element of defamation (libel/slander) and fraud, both generally as an exception to Free Speech laws and specifically when contrasted with hate speech laws, has been glossed over as far as I have seen. The important distinction is that both defamation and fraud require a false statement of fact. Statements of pure opinion (and possibly those which are somewhere in the middle) are not actionable as defamation. In fraud, the false statement of fact must be material and the aggrieved party must show that the false fact was relied upon to their detriment. These elements serve to make defamation and fraud very narrow exceptions to Free Speech and confine them to false statements on subjects that are necessarily falsifiable. In contrast, hate speech laws would almost certainly cover slurs, epithets, etc. which are fundamentally opinions or even ostensible statements of non-falsifiable “fact.”
And with defamation you also have the added elements that it must be “published” to a third party and must cause damage to reputation. This of course means that even false statements of fact are not actionable as defamation if they fail to meet these additional elements. Lastly, actions for defamation are even further narrowed when the subject of the alleged defamation is a public figure or if the topic is “a matter of public concern.” In these cases, the desire for a political environment where criticisms of public figures and dialogues on important issues are not unduly inhibited means that a higher standard of culpability must be met (for example, “actual malice”).
Yes. Each country is different, including the United States.
What are the contours of the United States political culture and approach to civil liberties?
Well first, yes placing more inside the fence of protected speech with a higher fence than many other countries.
A longer history of greater religious, racial, and ethnic diversity than most other countries, many of whom are only relatively recently dealing with significant diversity all being part of the same culture, and most frankly not doing it so well IMHO.
Historical experience with the fence being not as wide and high that almost always resulted in squelching of dissent by those in power (again see Schenck).
Recent efforts to create laws which put more speech outside of the protection fence by elements of the Right.
These are our contours.
I personally have a strong other belief: personal freedoms are to me on equal or even greater footing with social order. Overlapping footing even. I would argue that substantial infringement of personal freedoms is antithetical being an equitable and just society.
Let’s be clear: In the United States we are not really talking about a hate speech law.
First off speech “inciting or producing imminent lawless action and is likely to incite or produce such action” is already not inside the fence of protection, and speech in a workplace that infringed on equality, speech which made for a hostile work environment was discrimination, and not within the fence of protection.
Pass a law, however crafted, that hits neither of those bars and the issue is SCOTUS and the Constitution. Changing the nature of the fence beyond that is not just a law; it is a change in the interpretation of the Constitution by SCOTUS or a new amendment narrowing and lowering the fence.
My answer to both of those arguments is the same: evidence-based judgments of the results of such laws is an objective process and is entirely different from “argument from popularity”.
Of course in order to be objective, one needs objective criteria with which to evaluate the resultant society and its values. Laws against homosexuality might be judged to be beneficial if one could make a case that they prevented something that was socially destructive, but this is not a case that can rationally be made, and conversely there is a strong case that such laws are an egregious infringement of civil rights. But laws against hate speech further the goals of a peaceful, ordered and just society while having little or no impact on meaningful freedoms, and indeed frequently correlate with (if not necessarily causing) greater freedoms and a more robust democracy than found in the US.
I’m well aware of the text of the ruling, thanks very much. But any ruling centering on the First Amendment self-evidently comes down to the question of whether the words or actions constitute protected speech, or conversely, whether a particular prohibition on those words or actions is constitutional given the protections of the First Amendment. Any argument to the contrary is an oxymoron. Moreover, the State Supreme Court had earlier upheld the St. Paul ordinance on the grounds that it prohibited only “a category of expression unprotected by the First Amendment”; by reversing, the federal Supreme Court was implicitly and effectively declaring the opposite. This was duly noted here: “On June 22, 1992, the Supreme Court decided R.A.V. v. City of St. Paul, holding that burning crosses inside the fenced yard of a black family living across the street is protected speech.”
Which wasn’t even my central point anyway; my main point as clearly stated was that I found the implications of the ruling disturbing. You may disagree, but disagreement with my opinion and my observations about the injustices and the bigotry and violence that such rulings facilitate has absolutely nothing to do with what I understand or don’t understand about the principles of free speech in the US.
Nor am I alone in this view:
… prohibition of cross burning in St. Paul was not simply an infringement of the expression of a politically debatable idea. Rather, the prohibition of cross burning, in this case, was a protection against the infringement of the civil rights of all citizens, by protecting public safety and order. In Cox v. New Hampshire, the Court held that, “civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.”
When Robert Viktora and his friends constructed and burned a cross on the front lawn of a Black family that lived across the street, they were clearly breaching any public order and peace that may have existed. The burning of the cross exemplified the abusive level to which racially motivated hate speech may rise and the dangers of physical destruction which accompany such speech … Like the centuries of lynchings of Black men, women, and children, and the decades of burning Black churches across the country, Robert Viktora’s burning cross was a profound expression of malevolence, one which has often stood as a promise of doom to millions of African-Americans.
https://academic.udayton.edu/race/06hrights/waronterrorism/churchburn01c.htm
The “get lost jerk” thing wasn’t a hate speech law. It was a 100+ year old law about insulting the head of state. And as far as “wounded religious feelings”, I doubt many here are advocating for a Singapore style justice system.
No, you are wrong and DirkHardly is right.
you said "Another ruling that I personally found disturbing was R.A.V. v City of St. Paul where burning a cross on the lawn of a black family was considered just peachy-fine “protected speech”.
SCOTUS ruled nothing of the sort. Note that RAV was charged with two counts, *one *of which a violation of the St. Paul Bias-Motivated Crime Ordinance. That ordinance was struck down as being over-broad.
However, SCOTUS noted several times during it’s decision that the conduct at issue could have been prosecuted under different Minnesota statutes. In other words, the cross burning here was & is illegal. It is just that *that ordinance *was Unconstitutional. No Judge- at any time- said that the conduct was “peachy-fine”, in fact the opposite. wiki "The Court concluded, "Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."
In fact later "In Virginia v. Black (2003), the United States Supreme Court deemed constitutional part of a Virginia statute outlawing the public burning of a cross if done with an intent to intimidate, noting that such expression "has a long and pernicious history as a signal of impending violence.
Not sure how you reconcile any meaningful interpretation of you “being well aware of the text of the ruling” with you getting an important part of the ruling 100% wrong. See that would actually be a better example of something oxymoronic than what you cite in your post. So given that you believe that the cross-burning was deemed protected speech by the Court on what grounds do you believe that the law was ultimately struck down? It would be an unusual scenario where the speech in question was found to be protected under the 1st Amendment but the law was nevertheless ruled unconstitutional. Not impossible, but certainly unusual.
And regardless of your answer to the above question, how do you reconcile your belief that the Court found the speech to be Constitutionally protected when the Court stated the following in its decision:
Although this conduct could have been punished
under any of a number of laws, (Footnote 1)...
(1)The conduct might have violated Minnesota
statutes carrying significant penalties. See, e.g.,
Minn.Stat. § 609.713(1) (1987) (providing for up
to five years in prison for terroristic threats); §
609.563 (arson) (providing for up to five years
and a $10,000 fine, depending on the value of
the property intended to be damaged); §
609.595 (Supp.1992) (criminal damage to
property) (providing for up to one year and a
$3,000 fine, depending upon the extent of the
damage to the property). 505 US 377, 380-81.
And:
The dispositive question in this case, therefore,
is whether content discrimination is reasonably
necessary to achieve St. Paul's compelling
interests; it plainly is not. An ordinance not
limited to the favored topics, for example, would
have precisely the same beneficial effect. Ibid at
396-97.
So how can the Court possibly find the cross-burning is protected speech while contemplating the conduct being prosecuted under other laws or under the law in question if it had been viewpoint/content neutral? Those two positions are contradictory and mutually exclusive. Perhaps even oxymoronic, if you will. Protected speech is just that, by definition, and not subject to prosecution of any kind.
In addition to apparently not understanding what “protected speech” is, you seem to have a fundamental misunderstanding of how Free Speech and Constitutional cases in general are decided by the courts. The nature of the law in question and the conduct in question are not distinctly separate issues but are generally (except see below) two components of one overall issue. So there is no “conversely” relationship between them. Instead courts generally consider the conduct and how the law is applied to that conduct. If the conduct is Constitutionally protected then the law is definitively unconstitutional, whether generally or as applied. But conduct that is Constitutionally protected under one set of circumstances may not be under another, in this case under a differently worded law. So because of this interaction you generally cannot address either in isolation except as explained below.
Before I get to that important and extremely relevant exception, you might be thinking that what I outlined above is what occurred in R.A.V.. Namely that the Court found that burning a cross, on someone else’s property no less, was protected speech under some circumstances but not others. But that would be wrong as well.
This is because that the exception to the above generalization of Constitutional challenges is the Facial Challenge. And you and the authors of your “cites” seem to fail to grasp the significance of this in your faulty analysis of R.A.V.. A Facial Challenge challenges a law as unconstitutional on, well, its face. Thus, it is the exception where the conduct that underlies the claim is largely irrelevant because the law is inherently Constitutionally flawed regardless of its application. So in R.A.V. the Court had no need to decide whether the conduct was protected speech since the law was unconstitutional on its face. So they didn’t. And as evidenced by their reasoning, including what was quoted above, they didn’t even contemplate doing so. You and the authors of your “cites” just completely misunderstand the Court’s decision and its reasoning and mistakenly leap to the conclusion that the Court has deemed such conduct Constitutionally protected.
Speaking of which, your “cites” are garbage. You found two out of the maybe million+ people in the US who have J.D.s that agree with you on what are essentially blogs. I defy you to find an actual legal cite such as a law journal article, a legal textbook, a treatise, a hornbook or whatever that reconciles your position with the clear language of the Court.
So you found the ruling and its implications disturbing. Except the ruling isn’t what you think it is, thus the logical implications aren’t what you think they are either, and your conclusions based on your wrong information are suspect at best. I mean, sure, someone could read the decision, misread it as you have, and in their case go burn a cross on someone’s lawn thinking that it is protected speech. But I hardly think that’s the Court’s fault and existing laws will handle such instances appropriately (or if they don’t that’s similarly not the fault of the Court).
Of course there may be a reason, but I have yet to see it. The mere fact that other countries you consider “the world’s freest democracies” have enacted laws against hate speech, does not imply that the U.S. should.
I personally define hate speech as speech that could be reasonably expected to deny or incite people to deny the target some natural right. I hesitate to endorse the censorship of (punishment for) hate speech in any public or quasi-public forum unless that speech has the immediate effect of inciting violence, or if such speech is a specific and malicious libel.
Instead I assume that free and open debate will soundly refute the positions of hate in the minds of reasonable men and women. If it cannot, or if the majority of people are unreasonable, perhaps I ought to live with the hatred.
I’m not generally a fan of U.S. exceptionalism but the U.S. is certainly exceptional in our construction of freedom of speech. Who else goes so far as to boast, in the highest court of the land, how ‘we protect the freedom to express “the thought that we hate”’?
~Max
I agree with you, but for the casual reader I want to summarize. The Supreme Court ruled that a city ordinance was so broad that it was unconstitutional, and thus overturned a kid’s conviction under that ordinance. Yes, the kid burned a cross in front of a church. No, the court did not decide whether burning a cross in front of a church is protected speech under the First Amendment. They only ruled that the ordinance was unconstitutional on its face, and stopped there.
~Max
I would only add that not only did the Court not find the cross-burning to be protected speech but, while not explicitly saying so, actually implied in no uncertain terms that it was in fact unprotected. By contemplating criminal charges under other laws and by finding that the conduct could have been reached under a version of the law absent the Constitutional flaws, it follows logically that the Court saw no Constitutional barriers to criminal prosecution under either scenario.
started a GQ thread on Canada’s hate laws; open for questions, provided it’s factual, not a debate.
I see no social value whatever in people stating, as a matter of public policy, that other people should be killed based on their personal characteristics. A law preventing that is acceptable.
Would wanting to bomb the ISIS or the cartels be considered hate speech? How about advocating a blockade on a country we are at war with?
So the "Kill the nazis’ meme going around shoudl be a crime? :dubious:
Oh yeah, because ISIS and Nazis are protected classes. Everyone knows that you can’t fire someone for being a Nazi. That’s discrimination.
Some people have a weird idea of what constitutes a “personal characteristic”
“You won’t let people who want nothing but to kill you and everyone looks like you openly speak their truth. So much for the tolerant Left !” :rolleyes: