Prejudice, Hate Speech, the First Amendment, and Online Interactions

Author's note--there are offensive words in this post, but they are used for a reason. In order to demonstrate the points regarding hate speech, the First Amendment, and the climate of our current society, the use of offensive terms is, in my opinion, necessary. If you are a bigot or a member of the Westboro Baptist Church, you might want to stop reading now. If you're neither, then continue.

This isn't the first blog post I've written today.

My latest satire piece on asshats comes out tomorrow afternoon. But I was involved in a couple of incidents today that have me questioning some of the tenets I've always supported unequivocally for my entire life--and that leads me to consider the dichotomy between freedom of speech and what it defends--hate speech. This evening, an online acquaintance of mine made an anti-gay comment that pretty much led me to see red--and when I challenged him regarding his comment, he replied that he had freedom of speech and could say anything he wanted to.

And that's true. To a point.

This is a tough issue. Let me get some things out of the way immediately. 

First off, I am so absolutely flabbergasted that prejudice and bigotry is so deeply rooted in our society that it continues to this day. I was a little kid when forced busing began in American schools. I grew up in the first generation after 'separate but equal' was bounced as the norm. I grew up in the first generation of kids who were taught in desegregated schools. I have never experienced or felt that there was any difference between the races. As I grew into adulthood, that lack of prejudice expanded to include other so-called minority groups--women, the LGBT community, religious groups. I'll be honest--I could give a rat's ass about classifying people as superior/inferior based upon any prejudice at all. 

So the hatred still thriving in our society for any group just boggles my mind. 

Second--let's clear up my opinion on freedom of speech. The government has absolutely no right to restrict the freedom of speech for its citizens. This is something I will never budge on. If I want to say that I think the US government is full of bantha poodoo, they cannot impose penalties on me for saying it. Nor can they restrict any of the people who subscribe to discriminatory beliefs--and I think that's a great thing and absolutely support it.

But let's get something else out of the way too. The First Amendment of the Constitution reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances..

Freedom of speech means the GOVERNMENT cannot restrict what we say. The GOVERNMENT cannot censor what we write. The GOVERNMENT cannot prevent us from gathering in protest or assembly. The GOVERNMENT cannot be held above the citizenry's right to petition them to address injustices in our country. The First Amendment is about the laws of our country. Period. End of discussion.

But here's the part the people who are screaming "Freedom of speech!" in regards to their prejudicial beliefs miss--the First Amendment doesn't say a damn thing about interpersonal interactions. Any fool has the right to say what the hell they want in any forum in the US. No one can be stopped by the government from making whatever misogynistic, racist, ageist, homophobic crap statements they want to make. Sure--you can be a bigot; that's your right. The government won't stop or challenge you. 

But I sure as hell will, and I have the right to do so. 

Hate groups like the Westboro Baptist Church cite the First Amendment every time they protest a soldier's funeral with signs that read GOD HATE FAGS. A 2011 article in the New York Times by Adam Liptak breaks down the SCOTUS ruling on Westboro that upholds their right to act like homophobic dimwits and mock a family's grief.

“Speech is powerful,” Chief Justice John G. Roberts Jr. wrote for the majority. “It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

But under the First Amendment, he went on, “we cannot react to that pain by punishing the speaker.” Instead, the national commitment to free speech, he said, requires protection of “even hurtful speech on public issues to ensure that we do not stifle public debate.”

 And here's where the crux of the situation truly lies. I have no problem with the bigots at Westboro saying what they do with their pathetic little signs reflecting their pathetic little minds.Our Constitution guarantees they have the right to do so, and I'm cool with that because the same Constitution guarantees my right to stand a reasonable distance away from them so I can point, laugh, and express my opinion for their mindless zealotry that reflects absolutely nothing about the religion and Bible they purport to represent. But let's be for real here. Nowhere in the Bible does it say "Homosexuality is a sin and you will burn for it." Not even Leviticus does that--since it equates homosexuality with other assorted sins like eating pork, women wearing cosmetics, and men having long hair. The Ten Commandments don't mention homosexuality. And obviously, Westboro bigots and their ilk prefer to forget Biblical tenets like "Do to others as you would have them do to you." (Luke 6:31) or "He that is without sin among you, let him first cast a stone at her." (John 8:7) Don't believe me? Check this out.

(I am not a religious person, but it always amazes me that I know more about the Bible than a lot of people who spend all day thumping one. My opinions on THAT issue may come out in a later post.)

But bigotry and ignorance aside, I find myself wondering--is there a solution to hate speech that will not violate the First Amendment? On the face of it, the answer is--no, there isn't. We cannot preserve the freedom of speech and still somehow limit hate speech. After all, to someone absolutely convinced that homosexuality is a sin, my contrary opinion could be considered hate speech. Words like bigot, homophobe, and idiot aren't exactly terms of endearment. Although I will emphatically state that these terms are nowhere near as full of hatred as faggot or kike and so forth. That's why I am using these words--even the ones that represent hatred and outdated societal prejudices. Some of these regularly employed terms are so ugly that I can't bring myself to even type them--like the n-bomb or the c-word. (I'll try, but it may prove impossible)

There are a lot of people that do not share my squeamishness.

But what about on an interpersonal level? Like say, for example, online?

A bigot has the right to be a bigot and to say any bigoted thing he wants on social media.

And we have the right to call the bigot a bigot and point out their bigotry on social media.

This is an exchange of freedoms that, for some strange reason, a few bigots feel is somehow unfair. See, whenever someone starts waving the First Amendment around as a defense for their hate speech, they don't connect the fact that people who disagree with them have that same freedom. Somehow their freedom of speech is preferred over mine, for example. They know that freedom of speech is the reason that they can get away with what they say, but they don't know enough about the First Amendment to understand that it's geared toward protecting the citizenry from the government, not each other. And then they get surprised when their accusations or even civil suit alleging libel or slander are thrown out.

This blog is a good example. My right to blog about this is protected under the First Amendment. This is my medium; my platform. But when someone posts a blistering and rude comment--and someone will, and my bet is that they'll be from Kansas--they'll call it censorship when I do not give permission for their comment to be posted on this blog. They aren't smart enough to have read the Terms of Service, which gives the blogger(me) the right to screen comments before they are posted. So even though I am not the government or the representative of the government, they think that somehow their First Amendment rights have been violated.

But what does hate speech actually do for those who regurgitate it? The Westboro Baptist Church offended a lot of people with their protests at military funerals, exploiting the First Amendment in order to push their agenda. The soldier or the soldier's family most likely has nothing to do with the gay culture in our country. The Westboro protesters want to push their agenda in the most public way possible. They're click bait vultures, striving to get their agenda on television--and that's why they chose to protest at military funerals. Guaranteed free publicity. But their crusade has resulted in something uite different. As Reverend Jeff Hood said in a 2015 article in the Huffington Post:

With the ability to see what hate looks like in the flesh, I am convinced that Westboro has helped many Christians change their mind on human sexuality and gender orientation. On some level, I am thankful that God can use the lunatics among us to bring about God’s will.

But there's something else that spewers of hate speech should be aware of--there is an exclusion legally from First Amendment protection for specific interpersonal situations. And one of those exclusions can apply specifically to hate speech. Ever hear the phrase "Those are fighting words"?

Since the 1942 case of Chapinsky vs. New Hampshire,speech addressed to a person in a public place that could lead to a immediate retaliation or a breach of the peace is not protected under the First Amendment.

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 

What does this mean?

This means that if someone comes up to another person in a public place and calls them a name that is likely to get them stomped all over the room, they cannot claim that their words are protected by the First Amendment. It's inciting violence--a breach of the peace--and in our society today, we all know a plethora of words and phrases that will get our faces punched. That's why Westboro Baptist Church "protesters" always walk a very fine line. Their signs don't say "God hates you, faggot" because that's likely to get them punched into a pool of blood and the First Amendment rights would not be upheld by a judge. Their signs say "God hates fags"--a non-specific anti-gay slur that is not directed at a single person. That way, they can push their agenda of hatred and still claim protection under freedom of speech.

Sound nitpicky?

That's because it is. Trust me--there are lawyers in the Westboro Baptist Church or the KKK or the American Nazi Party or any other hate group who know exactly how far they can go. These are organizations pushing an agenda, and they operate under very specific guidelines to protect themselves legally.

But I have to wonder--and maybe some time soon this will come before the Supreme Court--what about individuals? What about the internet? Does social media fall under the definition of 'public place' as defined by Chapinsky vs. new Hampshire? Do 'fighting words' on Twitter or Facebook fall under First Amendment protections? Or, do they constitute a potential breach of the peace and are therefore excepted from free speech parameters?

I'm not a constitutional scholar, so I have no idea. But I have a feeling, that one faggot'or the n-word or 'maybe even bigot is going to inspire some fool to get in their car, drive to the insulting party's house, and administer their own brand of rough justice. That's already happened in fact, as in this UK case. But I haven't yet heard of such a case in the US that includes a challenge based upon the First Amendment and the 'fighting words' outlined in Chapinsky.

I'd be willing to bet, though, that one is coming.

So think carefully about what you say in a public forum--whether online, broadcasting, or in the mall parking lot. There's a very good chance that the First Amendment is not only going to keep you from getting the crap kicked out of you if you drop the n-bomb, but it's also not going to grant you the right to make such a comment in the first place.

And let's be honest. Anyone who spews hatred like that? Not many people are going to weep when they get what's coming to them.

America has a long history of struggles with itself on issues of bigotry and hatred. God knows we've suffered for it in the past, and unfortunately we are still suffering for it today. We can no more stamp out prejudice than I can go out into my backyard here in a few weeks and stomp out all the 17-year cicadas that are about to destroy my flower beds. One of the bizarre and amazing uirks of our society is that although we struggle to maintain our identity as the land of the free and home of the brave, we permit those people who fight against the equality of all Americans to have their voice and protect their right to use that voice to express their beliefs. That's an amazing thing. But the core issue in my opinion isn't freedom of speech, but the seeds of prejudice that should have already been rooted out. So it seems appropriate to end this post with a remark by the Great Emancipator that, unfortunately, shows how little we've really grown and how much further we have to go.

“As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners, and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty – to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.” ― Abraham Lincoln, Lincoln Letters

Kind of depressing, isn't it? How little we've changed?

And how far we have yet to go.

Sticking My Toe Into The Supreme Court's Business: The Language of Hatred and the First Amendment

Disclaimer:  I am not a legal expert.  I am a citizen with google-fu, political science education, and an abiding interest in the First Amendment who is kind of pissed off.

Last week, a group from the Westboro Baptist Church stopped off in Columbus on their way to Washington, where the Supreme Court will decide on the court case that Albert Snyder, father of slain Marine Lance Corporl Matthew Snyder, brought against the group as the result of their protest at his son's 2006 funeral.  They went to a corner on the Ohio State campus, with their normal regalia, and protested as part of their 1-70 Godsmack Tour.

No offense to the rock band; I didn't name the event. They did. Voodoo is a great song, by the way.

I don't think it's a stretch to say that any decent, normal human being abhors a thought process that allows people to justify an intrusion upon a family's grief.  In my world, people don't think that soldiers killed in the line of duty are somehow God's punishment against America's 'immorality' about abortion and homosexuals.  Honestly, trying to decipher that train of thought would give Sigmund Freud insomnia.  I think it's also fair to say that the Westboro protesters are deliberately exploiting the media coverage given to soldier's funerals as a platform in which to spread their ideology.

If we could convict them for being insensitive douchebags, this would be an open and shut case.

Unfortunately, legal douchebagdom is not the issue here.  The issue is the First Amendment of the Constitution and its protection of free speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Westboro claims that the First Amendment protects them against civil claims.  Snyder was awarded $5 million dollars in damages, a decision that was then overturned by the Fourth Circuit Court.  So now, the US Supreme Court gets to tackle the case--and it may have ramifications upon us all.

But here's my first question: does the First Amendment actually protect individuals or groups claiming the right to free speech from private action? The First Amendment was conceived with the intention of protecting the rights of the people against the government. "Congress shall make no law" doesn't just imply that--it states it straight out. So it seems to me that a civil action between Mr. Snyder and the Westboro Baptist Church would not be not be a First Amendment case.  That would actually be a pretty good deterrent to the WBC protesters too--you have the right to say what you want at a soldier's funeral, and the soldier's family has the right to sue you for it. 

I've heard a lot of people bringing up the 'fire in a crowded theater' misquote of Oliver Wendell Holmes lately too.  Yes, you read that correctly--MISquote.  The actual quote from the majority decision in Schenck v. United States in 1919.  (The real quote from the opinion is: The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. You can shout "Fire!" in a crowded theater as long as there really is a fire.  But I digress.)  The First Amendment part of Schenck was subsequently overturned in Brandenburg v. Ohio which restricted prohibited speech to that which was likely to cause 'imminent lawless action.'

I'm curious to see how Brandenburg might apply to the Westboro case.  I'm reasonably positive that if my son were killed in action and WBC showed up to protest at his funeral, there would be a lot of imminent lawless action. (Trust me--you don't know my family.)  It seems to me to be a logical extension of Brandenburg, one that could apply to this case.

But, as hard as it is to say this, there are aspects of this case that disturb me as well.  The Reporters Committee for Freedom of the Press and multiple news organizations have filed an amicus brief citing their objections to the case.  First, the brief claims that the petitioner (Mr. Snyder) is asking to silence the defendent (WBC); second, that the First Amendment does not permit the offensiveness of speech to trump the freedom of expression; and third, that tort liability would undermine the basic principles of the First Amendment.  Go read the brief; I've linked to it and it's not only pertinent but interesting.

To the first objection, I'm going to have to disagree.  I don't think Mr. Snyder cares that WBC says what they do.  His objection is to the emotional trauma and harassment his family received from the WBC at his son's funeral.  There I have to agree. A sign that says "God loves dead soldiers" can't be construed as anything other than harassment, particularly when directed at a captive audience, which mourners at a funeral are.

The second objection is a bit trickier. When does offensive speech--okay, let's get real, HATE speech--cross over the line to harassment?  I think this is where Brandenburg can come into play.  Remember the scene in Die Hard 3, where they drop Bruce Willis off in Harlem in his tidy whities wearing a sign with the n-bomb on it?  Remember what happens?

I don't think that's unrealistic.  The harassment and emotional trauma caused by WBC protests will eventually jump right over the line into violence--probably sooner rather than later. There is a legitimate case to be made that signs like "God hates fags" and "Thank God for IEDs" will eventually get some people hurt and/or killed.  So do we protect their free speech and just let them get their asses kicked? Or, do we determine that their speech is deliberately incendiary and inciting violence and restrict them to marketing their agenda of hatred in otherm more appropriate forums?

But then, we hit the kicker--tort liability and the potential undermining of the First Amendment.  We've already seen several high profile libel cases in recent years.  Remember Carol Burnett v The National Enquirer, Inc?  This was a landmark case, especially for celebrities, who had been spectacularly unsuccessful in libel cases prior to this.  What made the case so important was the court's determination that the Enquirer had employed "actual malice" and that, because they didn't comply with the California regulations for newspapers, and as thus were liable for punitive damages despite the retraction they'd printed. After some pretty strenuous searching on my part, I haven't found any undermining of the First Amendment due to this tort liability.  (I have, however, noticed that the National Enquirer has been tippy-toeing in its claims about celebrities since.)

Here' s the gig--I am a writer.  I firmly believe in the powers of the First Amendment and the protection of free speech in this country.  The First Amendment is one of the cornerstones of our Constitution.

But, we've stretched the Consitution and its intent well beyond anything the drafters could have considered in the late eighteenth century.  It is my belief that the Westboro Baptist Church has intended all along to take advantage of the American preoccupation with preserving First Amendment rights, that they want to be martyred in the public eye, that the whole reason they've carried their 'protests' to these funerals is in the hope that someone would lose their temper and attack them. I think their conduct demonstrates this, as is evidenced by this from Time:

After the arguments concluded, Margie Phelps marched down the Supreme Court steps with her sister, Shirley Phelps-Roper; both huge smiles on their faces. Phelps-Roper did a little jig and said, "If I could shout 'Woo-hoo' right now, I would say 'woo-hoo.'" (There was nothing stopping her.) Margie, so controlled and logical in the courtroom, then joined her family at a press conference where they started singing to the tune of Ozzie Osbourne's "Crazy Train": "Cryin' bout your feelings/for your sins, no shame/You're going straight to hell on your crazy train."

The Time article, by the way, has a nice breakdown of today's arguments and events.  Go read it.

I don't often break my own rules and delve into politics on this blog; I think other forums are more important. But this case incites a lot of emotion on both sides of the issue.  Strangely, almost everyone agrees in the douchebagness of Fred Phelps and the WBC and empathizes with the Snyders.  But now, the SCOTUS has to decide whether it's okay to be a douchebag and manipulate the courts or whether the cherished and sacred reverence our country has for the Bill of Rights has limits under the law.  Regardless of what they decide, we should all follow this case.

It has implications for us all.