U.S.: Living with Hate in a Free Market of Ideas

Kim-Jenna Jurriaans

NEW YORK, Oct 03 (IPS)  – U.S. President Barack Obama’s unequivocal defence of First Amendment protections of blasphemy and hateful speech during last week’s address to the 67th United Nations General Assembly defied calls from Muslim protesters and some foreign government leaders to ban a controversial YouTube video and support stronger restrictions to religious criticism.Obama’s remarks followed two weeks of riots in countries including Libya, Egypt and Pakistan that resulted in an estimated 50 deaths, and courts in Russia, Turkey, Brazil, Sri Lanka and Kyrgyzstan banning online access to a video depicting the Prophet Muhammad as a fraud and a philanderer.

The extreme response to the the video overseas has overshadowed what the film itself is a symptom of – an “unprecedented” rise in domestic hate groups across the United States since 2000.

Between 2000 and 2011, the number of hate groups in the U.S. rose from 602 to 1,018, according to Mark Potok, an expert on extremism at the Southern Poverty Law Center (SPLC), which collects data on hate groups nationally.

The number of right wing “patriot” groups – which blend fears over the loss of white power with fears of impeding civil war between rich and poor – grew from 148 in 2008 – the year Obama was elected and the economy crashed – to 1,274 in 2011.

While much of the rest of the world continues to be baffled by U.S.-style protection of expression, Obama – himself a frequent target of racist speech – reaffirmed the First Amendment’s adage that “the strongest weapon against hateful speech is not repression – it is more speech.”

“The U.S. is very protective of speech vis-à-vis the rest of the world,” David Hudson, a first Amendment Scholar at the Freedom Forum First Amendment Center at Vanderbilt University, told IPS. “Free speech is a sacred right here – our blueprint for personal freedom.”

While the U.S. Supreme Court acknowledges restrictions when it comes to direct threats, incitement of imminent lawless acts, or “fighting words”, these three categories are narrowly defined and much hateful or repugnant speech doesn’t fall into any of them, according to Hudson.

“Truth Will Prevail”

“On hate speech, the United States Supreme Court has generally held that speech that disparages a group on the basis of racial, religious, ethnic, sexuality, or gender identity cannot be criminalised,” Ruthann Robson, a professor of law and university distinguished professor at the City University of New York (CUNY) School of Law, told IPS.

“The underlying idea is that ‘truth will prevail’ and that ‘bad ideas’ will suffer in a ‘marketplace of ideas.’ Of course, not everybody agrees with this.”

In Canada, for example, courts apply a balancing test that weighs equality concerns against free speech concerns, Robson explained. “In the U.S.,” on the other hand, “free speech is generally considered more central.”

In addition to the blasphemous nature of the Muhammad video, public discussions on possible restrictions to its content have focused on whether the video’s incitement of riots across the world could trigger First Amendment exceptions.

“The incitement standard really was made for people on a soap box,” Robson explained, adding that actions involving books or the internet are likely “too attenuated” for the restriction to apply.

“The notion behind it is that if you’re watching something or you’re reading something, you are alone – you are not being whipped up by a crowd.”

The person who is speaking also has to be intent on inciting the violence that ensues and it has to be objectively likely that the intended result will happen immediately, according to the scholar.

The Mohammad video – which Obama called “crude and disgusting” – in fact led a quiet existence on YouTube for two months before an Egyptian TV station aired part of it last month.

Extremist leaders, who have lost footing since the Arab spring brought moderates into power in countries like Egypt, were eager to capitalise on the video by amplifying the outrage and creating new platforms for themselves.

With the actual rabble-rousing happening halfway across the world, the reactions to the video were hardly immediate nor unmediated to pass the incitement test.

Robson concedes that the legal field has been somewhat in “disarray” when it comes to the doctrine of incitement in the new media age, struggling with situations that the doctrine really wasn’t anticipated to take into account.

So far, “the default has been that it’s not imminent action.”

A true marketplace of ideas

Chad Johnston is the executive director of two public access television channels in North Carolina, which by their mission are uncensored, uneditorialised community platforms that aim to facilitate the open market place of ideas that the First Amendment envisions.

This also means that a local hate group has the same opportunity to use the station’s facilities and airtime as the local knitting club does.

Classifying when speech crosses boundaries into unprotected expression has occasionally required the staff to do some “long and hard thinking”, Johnston said.

“The First Amendment is so great and so tricky at the same time. In the end, I think it is much more dangerous to a healthy democracy and – on a micro scale – a healthy community to tell people that they can’t speak their mind.”

What public access does best, according to Johnston, is create feedback loops in communities by inviting viewers to produce content in response to views they find offensive.

That kind of dialogue is essential to understanding how complex and diverse communities are, Johston said, while bringing views out of the “dark shadows” of society.

As repulsive as those views may be, expressions made on public access TV would be hard to criminalise on the basis on the First Amendment alone, according to Robson, and are much more likely to be in violation of Federal Communications Commission (FCC) rules.

The internet, however, is not yet subject to such regulations, and government is facing public pushback over attempts to regulate internet content.

Working harder

As the marketplace of ideas goes global, we are challenged with the fact that misinformation invariably spreads faster than valuable information, Arjun Appadurai, a well-known social-cultural anthropologist, recently said at the U.N.

The reason hate-oriented propaganda is successful, according to Appadurai, is that true information requires education and debate, while misinformation is bred in conditions of misery and anxiety, “which are widely available in a world of competition, misery and unequal opportunity.”

Like SPLC – which has taken the recent surge in hate propaganda as an opportunity to build stronger alliances to counter misinformation and blatant lies about minorities – Johnston, too, sees hate speech as an invitation to work harder on building understanding.

“I want to know if the (white supremacy group) KKK is active in my community – that gives me motivation to go out and fix that,” he said.

So while the “more speech” adage may be a testament to the United States’ deep-rooted mistrust of government – it also puts faith in another great value: rolling up your sleeves to make things better.