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Free Speech Op-Ed

As Good As It Can Be

For a nation which prides itself on its citizens freedom of speech, the thought that the U.S. could somehow be behind globally in this category is initially peculiar. Before jumping into the opinion portion of this piece, it is important to lay out the arguments for and against maintaining the current protection of hate speech in the United States.

The arguments in favor of the status quo can be titled as the marketplace of ideas, political self-governance, personal liberty and self-fulfillment, a figurative safety valve, hate speech being used as a bellwether, and a slippery slope. The marketplace of ideas and personal liberty and self-fulfillment are similar in that they both claim that the truth is will win out as long as there is no external interference. Political self-governance claims that voters need as much information as possible to make confident decisions. The figurative safety valve reasons that allowing speech gives bigots a non-violent way to blow off steam without engaging in physical violence. Hate speech acting as a bellwether refers how hate speech can give an insight into how negative a population can be at its lowest. The slippery slope argument is a simple slope argument that says once some hate speech is restricted, the line will become blurred and easy to manipulate.

The arguments against the current standing of the first amendment are summarized as the existence of psychological damage, hate speech as a precursor to violence, hate speech as an initializer of discriminatory climates, a denial of human dignity as a human right, hate speech as a silencing force against women and minorities, and the incompatibility of hate speech being protected under the first amendment and the existence of the 14th amendment. These are much more self-explanatory than the arguments in favor of the status quo.

The one argument that may cause a double take for some is the existence of psychological damage. With the rise of “facts don’t care about your feelings” pseudo-intellectuals online, many with more conservative views may be quick to dismiss this point as progressive trite. However, there is significant scientific evidence to suggest that being subject to hate speech as a child can result in adverse physical effects as an adult. An excellent piece of literature on the topic is “The Boy Who was Raised as a Dog” by Dr. Bruce Perry. The book details a select number of cases of childhood trauma Dr. Perry oversaw as a child psychiatrist as well as the resulting physical impacts the children experienced as a result of the trauma. While this book does not specifically address hate speech, it does go over many instances of trauma that have a thematic parallel to hate speech. The book then goes on to describe a set of tests which can predict the adverse health conditions people are likely to experience based on the trauma. The point of mentioning this is simply to say: hate speech causing physical harm should not be surprising given the scientific evidence available in the current year.

So that should be it, right? Hate speech causes physical harm, and therefore is not protected under the First Amendment. Unfortunately, there are precedents in place that would not account for this specification of physical harm.

Clear and Present danger is the key term in this question. The difficulty this term presents is that the danger (or by extension, physical harm) must be nearly immediate. With hate speech the physical harm is not necessarily immediate. Additionally, the idea that anxiety or other similar chemical reactions could be considered “physical” is less than popular to say the least. For example, in the case of Elonis v. United States (2015), Elonis certainly caused his ex-wife a significant amount of stress by posting violent “lyrics” (his defense) about her on his Facebook page, but the fear caused does not count as physical harm.

A significant time thus far has been spent on the psychological damage argument, and that is because I find it to be the most compelling and potentially impactful out of the arguments against the current standing of the First Amendment’s coverage of hate speech The other arguments seemingly hold no ground given current precedence or punishable forms of hate speech such as fighting words (words not protected by the First Amendment because they are directed at an individual and cause immediate harm or trigger violent response) or true threats (speech directed toward an individual or historically identified group with the intent of causing fear of harm). For example, if hate speech is truly a precursor to violence then it will be classified as a true threat. Additionally, the Brandenburg Test or incitement test covers anything determined to have been intended to and likely to incite imminent lawless action.

In a better world, the First Amendment would not have to consider hate speech. However, as America stands today, I believe the First Amendment protecting hate speech should result in a better society. Not much space was dedicated to the arguments in favor of the status quo because I want to take up one of the arguments against protecting hate speech. I find the argument of psychological damage to be particularly compelling. However, given current American interpretations of what counts as physical pain, I do not think this is a practical approach. Hate speech shows us what a lack of education looks like and how we could do better as a county. As I generally agree with the arguments for the status quo and cannot find a plausible way to proceed against precedent or mass opinion with the arguments against the status quo, I have to say that hate speech should be protected under the First Amendment.

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