A Question for My American Friends, Amendments Options

[Ambrose's Auntie]

I couldn't really find a particular topic for this question, so thought I'd ask it in the question thread.

Because I am a complete masochist, I am currently undertaking my 4th degree, this time a Masters in US Studies. My subject this semester is the US Constitution, and it is being approached from a political, sociological and philosophical perspective, rather than a legal one. The first assignment is about the First Amendment, particularly in relation to the debate about hate speech and how what is allowed in the US is frequently banned in many other countries (including Australia).

The thing that I was wondering, and would love to hear your views on, is whether you think allowing hate speech as a form of political speech protected by the First Amendment is something that strengthens or weakens the US? We've talked about things like the burning of crosses in front of the homes of African Americans, and marches by neo-nazi groups through predominantly Jewish neighbourhoods, and the reasons the Court has given for protecting the right to do those things, but, not surprisingly, there is a broad spectrum of opinion on whether this is a good thing or not.

I'd appreciate your thoughts.

[SNeaker]

I've never studied the Constitution in that kind of depth, but I know that Americans are very wary in general of putting any limitations on free speech. Personally, I feel strongly that free speech needs to be fiercely protected, even if it means that sometimes people get to say some pretty awful things. I am seriously bothered by the use of speech codes in American colleges. I'm also completely against making Holocaust denial illegal. Obviously I think deniers are hateful, terrible people who should be condemned, but I don't think they should be thrown in jail for it. For one thing, it encourages followers. For another, every person who is punished simply for saying what he or she believes in that I *don't* agree with sets a precedent. In the future the pendulum could shift the other way and the wave of public opinion could change to the extent that I or people I agree with could suddenly find themselves legally liable for our views. What is and isn't "hateful" can be subjective, therefore it's important that all speech should be free for all people at all times.

Incitement to violence is a separate thing, but I was shocked recently to hear that even saying "sieg heil" in Germany could get you thrown in jail (unless you're saying it in a classroom for educational purposes.) That doesn't seem right, although I obviously understand why there is a sensitivity.

[Ananda]

I agree with Sneak, and I'd add that if you don't let someone say something hateful, you can't rebut it. It's usually worse to let these things fester unconfronted, I would imagine. I'm not sure about cross burning on someone's lawn - that might not be a free speech issue, but certainly it counts as harassment, trespassing, and arson. Is there a specific case?

What's interesting to me (and what may be outside of the scope of your class) is the drive to label certain things as speech in order to protect them (i.e. money). Cross-burning is a bit similar. How far into the realm of "action" does speech go.

That sounds like a neat class - I've always thought it would be enlightening to take such a class (in another country, of course) and see how America looks from a different perspective.

[ejg25]

I stand behind the saying, "I disapprove of what you say, but I will defend to the death your right to say it." Except for the "defend to the death" part. There isn't much I would defend at cost of my life... my family maybe.

I didn't realize hate speech was banned in any democracies. Not cool. Free speech is one of the fundamental tenets of democracy.

For another, every person who is punished simply for saying what he or she believes in that I *don't* agree with sets a precedent. In the future the pendulum could shift the other way and the wave of public opinion could change to the extent that I or people I agree with could suddenly find themselves legally liable for our views. What is and isn't "hateful" can be subjective, therefore it's important that all speech should be free for all people at all times.

Yes, this exactly.

We punish actions, but not speech. As ananda said, burning a cross on someone's lawn isn't speech, it's a hate crime (plus there might be additional charges like trespassing, arson, endangerment, etc.). Courts would typically not condone burning a cross on someone else's lawn, though I guess you could do that on your own lawn (provided it met fire codes).

A parade would fall under the umbrella of speech. I think that's fine. They're free to march, their opponents are free to protest and counter-march.

[lejo]

Absolutely agree with everything everyone else has said. For me, it's as much a matter of daylight being the best antiseptic as it is some inherent right or justice to being able to speak your mind. Like Ananda says, you can't disprove or dispute what you're unaware of being said.

That said, I understand how those outside the American tradition are baffled by what we permit or protect. Even at our best, we're a schizophrenic country, made more so by partisan polarization and wing-nuttery. We have such a long and disgusting tradition of hate speech that it seems our better angels would have to be for limiting it. But I think having that worst aspect of our culture in plain view makes us stronger in the long run. If the first step to recovery is admitting you have a problem, than silencing ugly opinions is counter-productive.

Beyond that, enlightened societies can't fear ideas. Even horrible, untrue ones. At the very heart of a secular, science based open society is the exchange and challenging of opinions, facts and philosophies. The hateful, spiteful, untrue ones might persevere but they'll never truly dominate because they'll be challenged at every turn. That's a security that seems counter-intuitive but is absolute. Truth will win out in the end.

[ejg25]

Beyond that, enlightened societies can't fear ideas. Even horrible, untrue ones. At the very heart of a secular, science based open society is the exchange and challenging of opinions, facts and philosophies.

Well said. Plus, given how the tides of history change, one day's "unspeakable" thought (e.g., we should throw off British rule, we should grant rights to blacks) can become tomorrow's world order. If you're quashing thought, it makes it more difficult for those ideas and that progress to flourish.

[Ambrose's Auntie]

Thank you all so much for responding - it is fascinating to hear your views. Ananda, there are cross-burning cases, and as long as they aren't on private property, the act has been protected as political speech under the First Amendment. Coming from a jurisdiction where the more extreme forms of hate speech are prohibited in some way (not through a Bill of Rights - we don't have one), and the tests for what might incite illegal behaviour are far more restrictive, the cultural/historical elements of the approach to free speech is so much more important than the legalities. Your universal certainty about the need to protect this kind of speech corresponds with the views of our American lecturer (who is a constitutional attorney) and the Americans in our class, but the Australians find it culturally hard to wrap our minds around. Because of our ever-increasing understanding of US history and culture, we can understand and engage with the interpretations of the Supreme Court, but we find it hard to believe that an Australian court would make similar decisions.

I appreciate your input - hopefully my essay will be more insightful as a result!

[ejg25]

I don't understand how Australia ended up without a Bill of Rights. Isn't your democracy based on the French model, as ours is? You got the egalite and fraternite, but not the liberte?

[Ananda]

The cross-burning talk brings up a point that might interest you. This sort of falls into the "action as speech" category as well, but certain factions in the U.S. occasionally try to pass anti-flag burning legislation. I don't know a lot of details about it off-hand, but it's always interested me that the people who lobby for this claim that they are being patriotic, when many Americans would consider this to be decidedly un-American. The right to protest is obviously linked with free speech, and stifling protest against the government seems to me to be a clear move towards fascism.

Not sure if that's within the scope of what you're addressing, but it's one area where Americans do not, at least not as a whole, consistently value freedom of expression.

[Ambrose's Auntie]

Ananda, we have been covering the flag burning cases as well - it's been a really interesting area of discussion. I think we find the flag burning cases easier to connect with because that is an issue here as well.

ejg, no, we aren't based on the French model. We are still a constitutional monarchy, with the Queen as our head of state. Our system is essentially the Westminster one, although unlike the UK, we do have a constitution. It's more like the first part of the US Constitution, setting out the structure of the administration (Congress equivalent), judiciary (particularly the High Court) and executive (Governor-General, who is the Queen's representative). It also reserves certain powers to the state, but we don't have the strong state system you have either.

There is often debate about introducing a Bill of Rights in this country, and we had a recent visit from Justice Scalia who addressed this issue, but we're a long way from actually introducing one.

[ejg25]

we don't have the strong state system you have either.

I'm not sure we have a strong state system so much as a crazy patchwork, and a bunch of loons who start shouting "states' rights" (a slogan from the Civil War era) whenever there's something they don't like.