Or, why I'm a First Amendment fundamentalist. jducouer
pointed to this article from Yonatan Zunger
. As often with Zunger, it's a bit long but very well thought-out and worth your time to read. It just happens to be wrong*.
"wrong*" is a shorthand I use for not factually incorrect but that does not hold up to detailed scrutiny. People can disagree whether something is wrong* while still agreeing on fundamental principles and factual bases. In this case I think Zunger is wrong* in part because he's avoiding the hard part of his argument and in part because he's not considering enough points of view.
Zunger starts off agreeing with Zoé Samudzi who made the claim that "...implicit incitement to violence via hate speech is protectable" and identifies this as a weakness. Zunger elaborates that the reason such things ought not to be protected is because hate speech, which he equates with harassment "silence[s] the weak and amplif[ies] the powerful." That's the first wrong* thing. Harassment, a specifically targeted attack, is not the same as hate speech.
I'm not even going to address defending harassment. I know people do defend it, but they're wrong (not even wrong*). Both in law and case precedent, harassment is not protected speech. So that leaves us with a discussion of hate speech. Zunger argues that hate speech amplifies existing social asymmetries - the targets of hate speech are most often people (women, people of color, people of different gender expressions and orientation) that already have unequal burdens just in daily living. "Talking while female" and "driving while black" are actual expressions of the systemic factors that disadvantage leads to. We want to counter that, so let's take seriously a point that a system (of free speech in this case) promotes that disadvantage.
Hate speech, Zunger argues, "has the particular ability to shut down speech by minority groups more than that by majority groups." True. The question is, what do you do about that? Zunger's answer is fuzzy and he doesn't really suggest a way to deal with the problem saying things like "Devising good speech policy is profoundly hard" and "the law must wrestle with this hard problem, and try to place a meaningful dividing line". Which, I'm arguing, is exactly what it does right now, where it comes down permitting a wide array of distasteful and offensive speech.
Having shied away from one hard question it's easy to see how Zunger has shied away from an even harder question, which is why I think his view is wrong*. Ask yourself:
What constitutes "hate speech"? What is "implicit incitement"?
My guess is that you, my mostly white mostly American mostly liberal readers will come up with answers similar to mine. It's no coincidence that Zunger illustrates his article with a comic of Captain America punching a Nazi. We all agree Nazis are bad and antisemitism (and its dual Islamophobia) are bad and that's it. Right? Easy. Done.
Except, what do you say to someone who believes that your insult to their religion is hate speech? What do you say to the person who believes their king is an incarnate god and any statement portraying that person or their family as less than divinely perfect is implicit incitement? What do you say to the person who honestly believes that the Bible is the literal word of G-d and any statement questioning that is an attack on par with saying that women are inferior creatures fit only to bear children? That latter is clearly hate speech so what allows us to restrict that and not restrict someone who questions whether Jesus literally rose from the dead?
Other people see things differently. An attempt to define hate speech in a way that can be applied outside our (first world, white, etc.) preconception circle has to acknowledge that difference or we are simply imposing our views on everyone. Without a clear description of "implied incitement" you are left in a situation where no one can know if their speech is to be permitted, except perhaps if it's cleared by The Group Appointed To Check Speech for Hatred and Implied Incitement. Please tell me who gets to be part of that Group - I'm quite sure it won't be freaks like me but I'm curious to know your selection process. I'm also quite certain that any situation that requires speech to be pre-cleared is going to be far worse for the people who are unfairly targeted and harassed today. History shows that when you have to pre-clear things you get prohibited from stuff like publishing poems about gay love, or comics showing interracial kissing. And on and on. It's not like we're new at this.
Zunger says that the "marketplace of ideas" requires regulation. I agree; we have those. And for very good reasons our chosen regulations target harassment and not hate speech, prohibit actual incitement not implied. The US used to have sedition laws and other things that kept free expression down. We've spent the better part of the last century learning - often the hard way (sorry Eugene Debs) - that these restrictions are generally a bad idea.
So I think it's wrong* to equate harassment and hate speech. I think it's wrong* to slip "implied" in front of incitement while pretending they're the same thing. and most of all it's wrong to assume that everyone shares the same speech values and ideals as we do.
 If you have not already read it I highly recommend Bruce Sterling's short story titled We See Things Differently