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Law & Courts Opinion

No, Hate Speech Doesn’t Violate the First Amendment

Students have serious misconceptions about how to combat “offensive” ideas
By Benjamin Barbour — November 21, 2017 4 min read
Middlebury College students turn their backs to author Charles Murray during his lecture on March 2, 2017.
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This fall, a study came out demonstrating how little our young people understand freedom of speech. Forty-four percent of the college students interviewed by Brookings fellow and University of California, Los Angeles, professor John Villasenor believed that the First Amendment does not protect “hate speech,” a dubious term that in reality has no legal significance. Approximately half of the respondents think it is appropriate for students to disrupt a controversial speaker. Most worrisome, nearly 20 percent of the students consider it reasonable to use violence to stop offensive speech.

Though described as “chilling” by one opinion columnist at The Washington Post, the study should not come as a surprise. Last March, political scientist Charles Murray found himself forced off the stage at Middlebury College by a group of students who shouted him down and refused to let him speak. Incidences of students interrupting speakers on college and university campuses have become recurrent.

Social studies teachers, take note. The new breed of postsecondary student who aims to silence opposition were once our charges, their views of the world in part shaped by the K-12 classroom. Students should be taught from a young age not to attempt to quash speech they find disagreeable. Nor, of course, should they acquiesce or surrender to bad ideas, of which there are plenty. To reflexively employ censorship, however, is to betray the American creed of free expression. Students must be taught the importance of combatting bad ideas with better ones. They must be taught why a society that fosters free speech in all forms is preferable to one in which words are policed and the public forum sanitized.

This first requires that students have a firm grasp of the historical context of the First Amendment and its place in American life. Freedom of speech made possible much of the societal progress Americans rightly cherish. It allowed abolitionist William Lloyd Garrison to print the anti-slavery newspaper The Liberator and suffragist Alice Paul and her Silent Sentinels to protest outside the White House.

There is a cost to personal liberty, one that many find uncomfortable. The same First Amendment that led the U.S. Supreme Court to allow The New York Times to publish the Pentagon Papers paved the way for that same court to uphold the Ku Klux Klan’s right to march in Ohio in the landmark Brandenburg v. Ohio case. It might prove jarring for student to consider both sides of the free speech coin. Yet, both sides do, and must, coexist.

Students should be taught from a young age not to attempt to quash speech they find disagreeable."

And while it may be more popular than ever to decry offensive speech, we should underscore to students in our classrooms that so-called hate speech is not only safeguarded by the First Amendment, but that the term actually has no merit under the law. The Supreme Court does not recognize hate speech as restricting Americans’ constitutional right to free speech. With few exceptions, the First Amendment allows all people to voice opinions, regardless of whether those opinions are enlightened or grotesque, informed or ignorant, reasoned or irrational. While violence in response to speech is never tolerable, many may question whether interrupting speech is acceptable. Is it not the right of the disrupter to disrupt? Not quite.

The “heckler’s veto,” as it has informally come to be known, is when individuals or groups act (or threaten to act) in a way that prohibits a speaker from continuing his or her speech. This is a violation of the speaker’s freedom of speech, regardless of what that speaker is saying. Indeed, many states explicitly outlaw disrupting speech at lawful assemblies. Such behavior isn’t just potentially illegal, it is wrong. It flies in the face of the foundational tenets on which the nation is built.

Our students, though, need not feel powerless in the face of disagreeable words and ideas. On the contrary, our political system and way of life not only make room for involvement, but demand it. The great machine of democracy sputters and stops if the young abdicate their responsibilities and remain silent in the face of injustice. Dumb, detestable, and evil ideas exist. Therefore, it is the duty of engaged citizens to challenge ideas they find objectionable or dangerous. Censorship, on the other hand, remains the easy way out, the path of least resistance. Confronting bad ideas is harder. It requires a lot from us. Social studies educators need to spell out those requirements to students: an informed appreciation of our rights and responsibilities as American citizens, a well-researched understanding of the facts in question, the ability to articulate a position, and a willingness to listen to those with different or contradictory viewpoints.

Many of our students will depart high school and go to college. Others may enter the workforce directly. All will encounter, in some way, the frustrating and inspiring world of ideas. Young adults will learn quickly, if they haven’t already, that ideas don’t always comport with what they find agreeable, hold sacred, or think is true. They need to be equipped with the tools and mindset to make sense of, and respond to, all manner of speech in a rational and constructive way.

We educators have an awesome challenge in front of us when it comes to teaching free speech and the First Amendment. We are traversing an increasingly politicized minefield. Unfortunately, many students interpret “protected speech” as meaning “endorsed speech,” and that could not be further from the truth. What is protected need not be accepted. Of course, there remains speech that American jurisprudence has decided goes beyond the pale, such as explicit calls to violence or illegal actions. Students should recognize those boundaries. The future of free expression depends in part on how educators pass down the values enshrined in the Constitution and defended by generations of Americans.

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