Defending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End Result

A weekend full of ugliness has resulted in the predictable: calls for the government to step in and do something about "hate speech." For some reason, a bunch of people decided the removal of a statue commemorating the loser of the First American Civil War was something they simply couldn't abide with, even though the "history" they were seeking to "preserve" generally celebrates the last holdouts against the abolishment of slavery.

It's not as though they were seeking to preserve history a government might feel like erasing. No one involved in the protest of the Robert E. Lee statue removal sought to build the US equivalent of the Holocaust Museum and needed the stone homage to serve an appropriate place of dishonor among the rest of the relics. This devolved into violence -- first hand-to-hand altercations, but later involving a vehicle driven directly into a crowd of counter-protesters, resulting in multiple injuries and one death.

While the president issued a tepid "hate and violence are bad" statement, people all over the internet were taking this as an indication free speech in this country has gone too far. (His second statement, delivered two days later, was much better.) Predictably, those attacking entities like the ACLU (which defended the white nationalist assemblage's right to hold a protest of the statue's removal) were mainly interested in shutting down speech they didn't like, while somehow preserving the sort of the speech they did like.

Glenn Greenwald has a long post at The Intercept detailing the misguided attacks on the ACLU as a result of its defense of the white nationalist protesters. As he points out, the left -- despite its reputation for tolerance of all races, creeds, colors, and sexes -- is a frequent supporter of government regulation of speech. Many on the left still cling to the mistaken belief the government has already outlawed "hate speech," when it has done nothing of the sort.

Those on the right would like to see the ACLU kicked out of Constitutional discussions as well. Greenwald notes the ACLU has been similarly attacked for such things as arguing for due process rights for accused terrorists.

The problem is: rights are rights. Those availing themselves of Constitutional rights usually aren't sympathetic protagonists. But it's the worst of the worst that need defending. No one starts throwing around stupid legislation when tepid, middle-of-the-road statements are made. No one fires off bogus lawsuits when unoffensive statements are delivered.

Many on both sides -- right and left -- find this concept hard to grasp. Some people believe there's a legal bright line between speech and hate speech, when in most cases, it's just a subjective measurement of how much these people empathize with the disputed statements. Hypocrisy abounds. Unfortunately, hypocrisy isn't limited to the rank-and-file. Legislators are able to at least threaten serious damage to the First Amendment by writing and sponsoring bills targeting the "worst of the worst." But most are written so broadly and badly, they can't survive a constitutional challenge.

Even our president partakes in the speech hypocrisy. He has threatened to open up libel laws and refers to any source of info he doesn't like as "fake news." But he still enjoys the First Amendment protections he's reluctant to extend to his opponents, even as he extols police brutality or encourages supporters to attack protesters.

That the worst speech needs the most defending isn't news to anyone here at Techdirt. This point has been made repeatedly. But every time something like what happened in Charlottesville happens, the point needs to be driven home again.

Some believe the curbing of speech would somehow prevent violence. But words and actions are two different things. We have plenty of laws in place to deal with assault and vehicular homicide. What we don't need is more laws regulating speech in response to criminal activity. Certainly some of the people making the nastiest statements are also perpetrators of violence. But laws that criminalize speech extend culpability from doing to simply thinking.

There's a huge gap between defending someone's right to speak and defending what they're saying. As some people need to be constantly reminded, free speech is not speech without consequences. Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn't be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue's removal had every right to be heard, no matter how ridiculous their arguments and beliefs.

It also should be clear (but often isn't) that defending someone's First Amendment rights isn't the same thing as defending their actions. It's not even something as minimal as complicity. The ACLU stepping up to defend the white nationalist's right to assemble doesn't not make them an enabler of the violence that followed. That violence was the end result was possibly to be expected, but allowing the government to selectively revoke certain citizens' rights as a precaution isn't really the path we want to go down.

Finally, there's one more point to consider when calling for the curtailment of free speech for the "worst of the worst:" it is utterly ineffective, even if it "works." Here's Greenwald:

How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it's forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic?

The last thing anyone needs is for the worst of worst to become cause celebres because of their odious viewpoints. No one should be in a hurry to make it more difficult to easily recognize small-minded, hateful people. Their ignorance should always be on display. Burying them just makes them more dangerous and more apt to resort to violent means to make their points.