From: joemays@bsu-cs.bsu.edu (Joseph F. Mays)
Newsgroups: alt.censorship
Subject: Hate speech by anyone and everyone
Date: 31 Aug 92 03:27:45 GMT
Distribution: alt.censorship,news.admin,misc.legal
Organization: Dept. of CS Ball State University Muncie IN

Been gone for a couple of days.  I'm back, and it looks like my
work is cut out for me here.  Trying to decide on a logical order in
which to approach points in several different postings which essentially
deal with the same subjects:

Should hate speech be protected by the constitution?

Should hate speech be a basis for more severe punishment during the 
commission of another crime?

Should hate expression in forms other than speech or print be protected
(cross-burning, flag-burning, et al).

I am going to state my conclusions on these, and explain why I have
reached the conclusions I have.  I'll take the questions in order:

---------------------------------------------

1) Should hate speech be protected by the constitution?

Yes.  I say this because the basic, insurmountable problem is one of 
defining what is and isn't hate speech.  What is hate speech to one
group is a cry for justice to another.

The point has been made that hate speech might lead to worse actions.
In the worst case scenario one poster presents, hate speech might
lead to a state based on hate.

Chris Lewis says in response to another poster:
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>Really?  I guess I must have missed all those horrible victims of free
>expression.  Where are they?

I can think of about 60 million without trying very hard.  Nazi Germany
is an ideal example of where, long before Hitler came into power and
could *force* his views, what this type of speech could result in.
He didn't just appear out of thin air as Reichfuhrer - it was this
speech that got him his power.  And once he had his power, no German
law could contain his actions.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Chris is correct that Nazis did not "just appear out of thin air."
It is incorrect to blame their rise to power only on their freedom to
engage in hate-speech, however.  Setting aside several other social
and political causes for the rise of fascism throughout Europe at the
time, it should be pointed out that suppression of speech was as use-
ful as hate-speech to the Nazis.  During the beginning of the Nazi 
movement, before they gained power, the Nazis engaged in widespread
covert action against all speech which did not agree with their paranoid
view.  Opposition newspaper offices were trashed at night, violence was
carried out against those who disagreed with them, etc.  These actions
accomplished more than their hate-speech.  And when they gained power,
all speech which was classed as dangerous to the people (hate-speech)
was, of course, silenced for the public good.

It has been pointed out that perhaps where speech might lead to violence
no amount safety is too much.

One poster says:
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There is much
speech that I disagree with or find personally offensive, that I have 
absolutely no desire to attempt to suppress, and would in fact speak
against its suppression.  There is some speech, however, where the
"risk" isn't just "might", isn't some theoretical vague remote possibility,
but where major harm is almost a certainty or can be established as
already happened - "beyond a reasonable doubt".
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

I have spoken several times about an incident which took place in Indy
a few weeks ago.  Shots were exchanged between a cop and a black man
who had been listening to Ice-T's song "Cop Killer."  The police have
stated publically that they would like to see the song banned.

Ice-T wrote his song as a cry of anger at the treatment inner-city 
blacks receive at the hands of the police.  To the police, there is
no doubt that it is hate-speech.  They feel it's an incitement for
blacks to attack cops.

Perhaps it's both.  The fact of the matter is that a statement of anger
may lead to violence.  I'm not going to deny this.  BUT, there is the
possibility that the anger is justified.  It has to be possible to cry
out for change against things which anger us.  If I make a statement of
anger against whites, someone else may be driven by my anger to perform
violence.  The same is true if I make a statement of anger against blacks.
Or Nazis.  Or women.  Or Jews.  Or dogs.  Or blueberry pancakes.  To 
stifle speech on the basis of a crime which MIGHT be committed is to 
kill a basic and necessary freedom out of fear.  And stifling the
expression of anger doesn't make the anger go away.  If anything it 
gives cause for more anger.

Any attempt to suppress a freedom for the public good is doomed to 
backfire, I believe.  Too many people think in terms of using a law
in order to suppress an action in one group that they believe is unfair,
without considering the fact that placing the law there gives power to
everyone to suppress similar actions by every group. 

The anti-hate speech argument seems to me to be essentially the same
argument that seeks to suppress pornography because it is believed
to lead to violence against women.  Lisa Duggan, Nan Hunter, and
Carol S. Vance Spek on this in their essay "False Promises:  Feminist
Anti-Pornography Legislation in the U.S.A.":

"Laws which would increase the state's regulation of sexual images
present many dangers for women.  Although the ordinances draw much of
their feminist support from women's anger at the market for images of
sexual violence, they are aimed, not at violence, but at sexual 
explicitness.  Far-right elements recognize the possibility of using
the full potential of the ordinances to enforce their sexually con-
servative world view, and have supported them for that reason.
Feminists should look carefully at the text of these 'model' laws
in order to understand why so many believe them to be a useful tool
in _antifeminist_ moral crusades."  [Emphasis theirs].
                  From _Women_Against_Censorship_, 1985
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2)  Should hate speech be a basis for more severe punishment during the 
commission of another crime?

No.  If a crime is committed during an act of expression, or expression
is made during a crime, it changes nothing about the nature of the crime.
Adding punishment for a hate expression involved with the crime works 
only to suppress certain forms of expression as "hate speech", which is
still wrong for the reasons outlined in response to question 1.

I get the impression that most supporters of this viewpoint have certain
acts in mind when they state their feelings.  An example is the cross-
burning by Viktora which has so angered Ed Nilges.  David Nettles has
spoken of the same incident:
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Someone here at my job made the same assertion, and therefore
concluded that burning a cross on a Black person's lawn should not be
considered a hate crime, but an act of free speech protected by the
constitution and further the perpetrators should not be charged with
anything more than property damage.

So I asked him, "Do you see a difference between property damage and
this expression of free speech."
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
To their credit, posters here have been outraged by the racism in this
act.  But the fact is that they are proposing a cure that is worse than
the disease.  There are basic problems in this method of prosecution.

Hypothetical situation.  A black man and a KKK member live on opposite
sides of the street.  In the dark of night, each sneaks across the street
with a can of spraypaint.  The KKK man paints "Niggers get out" on the
black man's house.  The black man paints "Rednecks get out" on the
KKK member's house.  Many of us might sympathise with one group or the
other (my sympathy is definitely with the black man).  Both are going
to be prosecuted for vandalism and trespassing.  Too many people will
only feel that hate speech punishment should only be levelled at one
of these men.

Moreover, it's crucial to civil disobedience that if there is political
expression behind a crime, this expression should not be stifled in any
way.  I shudder to think at the state the civil rights movement would be
in had it been possible for a white power structure to label sit-ins 
at white-only businesses "incitements to riot" and prosecute even more
heavily for them.

Civil disobedience forces us to look at an illegal act and question
the illegality of it.  The act in question is often based in anger.
To empower the government to say, "We are going to 
prosecute you for your anger as well as the crime" is both dangerous
and, I feel, morally wrong in a very basic sense.  I have a right to 
be angry at some things.  If I commit a crime (such as refusing to
sit in the back of the bus), the court can decide whether or not a
crime was committed.  If it decides one has been committed, it can
punish me for the crime.  But don't punish me for my anger or say 
that my crime was worse because I expressed my anger during the
commission of the crime.
-------------------------------------------------------------------------

3) Should hate expression in forms other than speech or print be protected
(cross-burning, flag-burning, et al).

Yes.  It is necessary to recognize that expression might take many forms
beyond speaking from a podium or literary output.  Where these forms are
utilized, they need to be protected.

Which rap album was it that had a cover in which a photograph of the
musician had been put into a photo with George Bush, so that it
appeared he was aiming a gun at Bush?  Put bluntly, this is an 
expression of hate.  But the musician had a point to make about the 
anger and frustration many blacks feel when trying to interact with 
the system.  Whether you agree with the point or not, there 
definitely was a point being expressed.  It is wrong to deny the
right to express this point because it wasn't spoken or written.

Ed Nilges touches this point, in response to a direct question
from me:
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>Should the government have the right to suppress speech because it can
>be defined as hate speech?  Yes or No.  Responses?

No, Joe, because the Constitution (specifically the bill of rights)
specifies that this is forbidden.  The St Paul law enhanced the
punishment when a tort or crime had already been committed, and the
state is well within its rights to withold some Constitutional rights
when a crime is committed.  Viktora's actions were not speech by even
the most liberal interpretation of the word,
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
I have to admit that the article this response was in had expired by
my return, so I did not see the entire posting.  I clipped this from
another posting.  I am concerned about his last sentence.  Sit-ins
are not speech.  Paintings are not speech.  Performance art may lack
any spoken aspects at all.  Yet all of them have been important in
the civil rights movement.  Certainly, any of these things may be 
used as a means of expressing anger.  Should such an expression
not receive first amendment protection?
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In a recent posting I said that Ed Nilges' postings lacked logic.  He
responded:
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It is therefore a species of
impiety to accuse a fellow of a lack of Logic as if this were some sort
of thing he had, or lacked.  An impiety akin, in my opinion, to the
impiety Christ named in the Sermon on the Mount: "and I say unto you,
whoever calls his brother 'Raca', 'thou fool', shall be in danger of the
judgement."  In short, Joe, try to SHOW me that I'm a fool, don't SAY 
that I'm a fool.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
Fine, Ed.

Premise A)  All laws prohibiting specific behavior are applied by parties
            who perceive that the behavior exists.
Premise B)  All hate speech is perceived as such by parties who are
            frightened or angered by the speaker's message.
---------------------------------------------------------
Conclusion  All laws prohibiting hate speech will be applied by
            parties who are frightened or angered by a speaker's
            message.

I have presented both reasoning and real life examples which I feel
back up my premises.  If you want to argue, show me that my premises
are wrong, or that the conclusion can't be derived from them.  If you
want, present a counter-argument and I will deal with it in kind.  No 
charges of racism, no socio-historical lectures, no references to
your ability with C code.  Until you can do this, I will continue to
believe that the supreme court made the correct decision in striking
down the St. Paul statute.

Joe
Newsgroups: alt.censorship,soc.culture.african.american,alt.activism,misc.legal,soc.culture.usa,oh.general