by Wendy Kaminer
In America, if you decorate your house with
anti-Semitic slogans or your clothing with swastikas, you are engaging in
protected speech. But paper your neighbour’s car with anti-Semitic bumper
stickers and you are guilty of vandalism. Hate speech is constitutionally
protected (as the Supreme Court confirmed most recently in Snyder v Phelps). Destruction
or defacement of someone else’s property is legally prohibited.
Advocates
of censoring ‘hate speech’ might say that we value property more than the
elimination of bigotry. I’d say that we value speech, as well as property, more
than inoffensiveness. Besides, protections of presumptively hateful speech are
not absolute: a prohibited act, like assault or vandalism, accompanied by
vicious expressions of bigotry, may constitute a hate crime under law.
Consider
this recent incident at Wheaton College in Norton, Massachusetts: anti-Semitic
graffiti was scrawled across the back door of the Jewish Life House, where four
students reside. The student who discovered it, Molly Tobin, described herself
as ‘shocked, angry, and terrified’, according to the Boston Globe. But students and
faculty members have ‘come together’ in support of diversity, with a potluck
and a Facebook campaign. Campus police are investigating the incident, and the
school is offering a $1,000 reward for information about it.
Could
the vandals in this case be prosecuted for a hate crime? Perhaps. Massachusetts
law provides that assaulting someone or damaging her property with ‘intent to
intimidate’ on the basis of race, colour or religion, among other
characteristics, is punishable by a $5,000 fine and/or a maximum
two-and-a-half-year prison sentence. Whether or not the graffiti on the door of
the Jewish Life House was intentionally intimidating is a question of fact; but
you can guess how it might be resolved.
Should the
vandals in this case be prosecuted for a hate crime? Fierce free-speech
advocates, like my friend and colleague Harvey Silverglate, condemn hate-crime
laws for practically creating thought crimes. ‘It is foolish and dangerous for
the legal system to punish a malefactor on the basis of whatever ideological or
personal views or hatreds might, or might not, motivate crimes against person
or property’, Silverglate says. ‘The slope from punishing acts to punishing
thoughts is very slippery indeed.’
I
tend to agree. Hate-crime laws are generally sentence-enhancement laws,
imposing harsher sentences on crimes motivated by bias. They ensure that
assaulting someone you hate because of his personality quirks is a lesser crime
than assaulting someone you hate because he belongs to a particular, protected
demographic group. In other words, when you’re prosecuted for a bias crime,
you’re prosecuted for your bad thought and beliefs as well as your conduct.
Once
convicted of a hate crime, you may even be subject to mandatory thought-reform:
in Massachusetts, you’re required to complete a state-sponsored and designed
‘diversity awareness programme’ before being released from prison or completing
probation. Deface someone’s property for the wrong reasons - bigotry or a bad
attitude towards a protected group - and your thoughts become the business of
the state.
This
seems quintessentially un-American, if freedom of speech and belief are
quintessential American values. But individual freedom is sometimes valued
less, especially on campus, than diversity and the psychic as well as physical
security of presumptively disadvantaged groups. Greg Lukianoff, president of
the Foundation for Individual Rights in Education (FIRE), reports on the
lamentable consequences of this values shift in his important new book, Unlearning Liberty. ‘On college
campuses today, students are punished for everything from mild satire, to
writing politically incorrect short stories, to having the wrong opinion on
virtually every hot button issue’, he reports, in disturbing detail.
When
‘mild satire’ and arguably offensive jokes are deemed too dangerous or
disruptive to tolerate, it’s not surprising that anti-Semitic graffiti is
‘terrifying’ and virtually incomprehensible. At Wheaton, Molly Tobin says she
remains afraid to walk around the campus at night and describes her reaction to
finding the graffiti on her door as ‘an out-of-body experience’. While
appreciative of the strong support offered by Wheaton faculty and students, she
considers it ‘pretty tragic that something on this level has to happen for the
campus to respond like this’.
Death,
disease, war and genocide are tragic; famine is tragic; climate change is
potentially tragic. An isolated incident of anti-Semitic graffiti is unsettling
and lamentable, but it is hardly a tragedy. It is human nature. Few of us will
go through life without being insulted or disliked on account of race,
religion, sex, sexual orientation, or other immutable characteristics. People
can be mean and stupid. People harbour biases; they always have and always
will, and their right to believe in the inferiority or sinfulness of particular
groups is the same as your right to believe in equality.
I’m
not suggesting that we should resign ourselves to bigotry. I’m arguing that we
should tolerate expressions of it. This doesn’t mean tolerating bigoted acts.
Vandalism is not a form of protected speech, regardless of the ideas it
expresses. Penal laws should punish assaults on people or property that are and
aren’t motivated by bigotry. Anti-discrimination laws can and do single out
bias-motivated acts in employment and education with virtually no opposition
from free-speech advocates, except in some cases that involve verbal
harassment.
Advocates
of censoring hateful or offensive speech draw on civil rights laws to assert a
right not to be offended or intimidated on account of membership of a protected
group. But in the interests of equality, the state can regulate some educational
policies (especially in public schools) as well as hiring, firing and promotion
in secular businesses without significantly infringing on the First Amendment.
The state can’t regulate hate or offensiveness without eviscerating fundamental
First Amendment freedoms.
Is
this an excuse for vigilantism? When is it necessary, appropriate or ethical to
publicly shame people for their bigoted speech? The website Jezebel sparked a minor fracas about
journalistic ethics by calling out and ratting out to school administrators
teenagers who spewed crude, racist tweets in the wake of Barack Obama’s
re-election: ‘We contacted their school’s administrators with the hope that, if
their educators were made aware of their students’ ignorance, perhaps they
could teach them about racial sensitivity. Or they could let them know that
while the First Amendment protects their freedom of speech, it doesn’t protect
them from the consequences that might result from expressing their opinions.’
In
fact, because the First Amendment protects the students’ freedom of speech it
should also protect them from some of the consequences ‘that might result’ from
their speech, especially consequences imposed by public school officials. It’s
true that student speech rights have been significantly limited in recent
years, but the girls at Jezebel might want to consider whether that’s
cause for celebration.
In
any case, they obviously enjoy their own First Amendment rights to shame
teenagers or adults whose speech offends them. They enjoy the right to
encourage public school officials to punish students for their racist tweets.
But they should perhaps exercise this right with a sense of irony. Instead, the Jezebel site is infused with the
self-righteousness of people who have little compunction of speaking up in the
interests of shutting up their ideological opponents and shutting down speech
they find offensive. Freedom of speech respects self-certainty, but requires at
least a little self-doubt.
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