During my tenure as a fellow of the University of California National Center for Free Speech and Civic Engagement, I examined how the diversity movement of the past half century has influenced our nation’s conversation concerning speech. Then, in October, I ran across a call for proposals to present at a December 2019, symposium on Speculative Futures of Education.
This seemed right down my alley. For the past forty years I have been dabbling in futurism, including giving a popular public lecture, The Future Basics in Education. Why not apply this projective thinking to diversity and speech? So I submitted a proposal, which was accepted.
My proposal called for me to speculate briefly (fifteen minutes maximum) about where things might stand a half century from now as a result of the turbulent intersection of diversity and speech. So I examined three areas of the diversity-speech intersection, each beginning with a hard H: hate speech; harmful speech; and humanizing speech. In this column I will focus on my projections for the next half century of the debate over hate speech.
Let’s start with the present. At this point in the United States, hate speech is constitutionally protected. Hate speech laws have been passed, but courts have regularly overturned them. The hate speech conversation, however, is changing rapidly. The impetus for that change is coming from something you and I can’t live without — the internet.
The last decade has dramatized the power of the internet to serve as a readily-accessible mechanism for rapidly spreading hate speech. There is increasing awareness that hate speech is not only words; it propels action. Internet-delivered hate speech has jeopardized lives. It has inspired mass killings. Through troll storms and doxxing, it has driven people from their homes. As a result, calls for limiting internet-disseminated hate speech are growing rapidly.
First Amendment absolutists predictably oppose hate speech laws. They argue that all we need is “more speech.” Well, I, too, believe in “more speech.” However, the speed and scope of the internet has drained “more speech” of much of its power. “More speech” is increasingly proving to be ineffectual when it comes to mitigating the baleful impact of rapidly-disseminated internet hate speech.
In defending “more speech” as the solution, First Amendment absolutists repeatedly cite the opinion of Supreme Court Justice Louis Brandeis in Whitney v. California (1927). Indeed, Justice Brandeis did call for “more speech.” But those who cite him often and conveniently neglect to mention Brandeis’ caveat. Here is what he actually said: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.”
“If there be time”! Well, the internet has eliminated the luxury of time “to expose through discussion the falsehood and fallacies.” “More speech” may work — and I say may, not will — within the leisurely confines of academia. But it has failed miserably when it comes to internet-disseminated hate speech. I would bet that the astute Brandeis might well have agreed that internet hate speech terrorism falls well within his concept of “emergency.”
While the courts have restrained government action against hate speech, internet organizations have taken the lead, greatly due to public pressure. Facebook has developed more than 1,400 pages of content rules that are applied to posts by some 15,000 “moderators.” Even Twitter, which once branded itself as the epitome of free expression, has now adopted guidelines that users:
***“may not engage in the targeted harassment of someone, or incite other people to do so.”
***“may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.”
I am not claiming that internet services have done a commendable job when it comes to dealing with hate speech. I am merely noting that they have begun to abandon their previous absolutist insistence on content neutrality and moved to a sometimes-reluctant support of content moderation. Maybe even more significant is the fact that, when it comes to the hate speech plague, many leading internet executives — formerly opposed to any government restrictions — are now calling upon the U.S. government to take legal action to restrict such speech. They recognize that the hate speech challenge is too immense for them to handle alone.
How well would hate speech laws work? I don’t know. The jury is still out on this question, but there are growing calls for the United States to give hate speech laws a chance.
Many European nations have passed such laws. Scholars and other pundits disagree about how effective these laws have been and how equitably they have been applied. In fact, there are even disagreements about what should be classifed as hate speech. Some diversity advocates have confused the issue even more by recklessly applying the label hate to speech that merely is offensive or expresses disagreement.
But the hate speech game is on and the conversation is expanding. I predict that by 2070, maybe long before that time, we will have some form of national hate speech law.
Getting there will be contentious. First Amendment absolutists will do battle with diversity authoritarians, even as others struggle to create a workable way to restrict hate speech without undermining robust speech. Applying such a law will be messy. Inevitably there will be unfortunate unintended consequences .
Yet the quest to constrain violence, particularly against marginalized people, will ultimately drive government to restricting at least some forms of hate speech. At least that’s how I envision the year 2070.
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