Freedom to Hate Others: A Constitutionally Protected Right in America
By Dr Qaisar Abbas
Denton, TX
The recent “Muslim outrage”, as the US media calls it, in the aftermath of an online video that humiliated Muslim icons, has also sparked a debate on freedom of expression in the United States as an uncontested political ideology that rejects limitations on freedom of speech.
The First Amendment to the US constitution provides infrangible rights to citizens in expressing their opinion and even voicing hate messages against any race, ethnicity, religion or nationality:
"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."
Widely accepted as an unchallengeable law of the land, these golden words have become almost a “divine law” in the US where courts have repeatedly rejected any efforts to put limitations on this constitutional right. Freedom of speech, however, is not without controversy as some experts would like to draw a clear line between freedoms of speech and hate speech.
For Peter Vallentyne, a professor of philosophy at the Virginia Commonwealth University, restrictions on freedom of expression are justified if critical inquiry is not compromised and the speech does significant harm to others. In his words:
“----restrictions on expression are morally justified if and only if (1) the prohibited expression plays no reasonable role in critical inquiry, and (2) the restrictions are the least restrictive means of reducing significant harm to others.”
(Freedom of Expression, Hate Speech, and Censorship, VCU, October 3, 2012).
Because his argument is more philosophical than constitutional, it will be difficult to apply it to every situation. However, it shows how legal experts and intellectuals are divided on the issue even within the United States.
Stanley Fish, another opponent of freedom of speech who teaches English at Duke University, wrote a book on the subject “There is No Such Thing as Free Speech.” To him the initial intent of this constitutional provision was to allow freedom of speech in politics only with a goal to allow criticism on the government. Agreeing with another proponent of restricting free speech Judge Robert Bork, he says:
“--- First Amendment protection should not be extended to slander, pornography, vituperation and other social undesirable form of expression.”
In other words, Stanley Fish draws a clear line between freedom of political speech and hate speech which, in legal terms, might have a ‘clear and present danger’ to harm others.
Globally, as it looks, the concept of freedom of speech is defined differently in different countries. In most developing countries, the concept of freedom of speech has not been developed yet to be recognized as a major right of their citizens.
In countries, however, where democracy has taken roots, citizens have this right with some restrictions. These countries have several laws restricting people’s right to publicly express hatred against others’ beliefs. Verbal attacks on religion, race, ethnic groups, cultures and communities are considered punishable crimes legally in these countries.
There are laws in several European countries that limit speech to attack others’ religion, culture or nationality with an intention to ridicule and humiliate them. Europe, with a history of fascism and genocide based on race and religion, has developed effective laws to curb expression of hatred against any religion or race. These laws reflect aspirations of these countries to curb discrimination leading to genocide and violence against religious groups, races, immigrants and marginalized communities.
Here are some examples of these legal restrictions in several European countries:
- In England the Public Order Act of 1986 protects people against threats, abusive and insulting words or behavior, or written material with similar intentions. There are other laws that also restrict spreading hatred against others’ race or religion.
- Holland is the recent country that has introduced restrictions on freedom of speech through the Dutch Criminal Code that prohibits making public insults intentionally and engaging in verbal, written or visual material of hatred toward race, religion, sexual orientation and or personal beliefs.
- The Press Law of 1881 in France criminalizes incitement to racial discrimination, hatred or violence on the basis of ethnic, national, racial or religious groups or people.
- The Danish Criminal Code also declares any incitement of hatred based on threatening, vilifying, or insulting intended for the general public or individuals.
These laws have been effectively used to convict people involved in humiliating other citizens. Contrary to the widely believed myth in Muslim countries that Muslims in Europe are the passive targets of hateful messages, they have effectively used the legal system to sue the writers, political activists and even actors who were responsible for producing offensive messages.
In fact, some prominent leaders and writers, as a result of these lawsuits, have been convicted and imprisoned. The famous actress Brigitte Bardot, for example, in lawsuits filed by Muslim organizations, has been convicted and fined repeatedly for criticizing the Muslim ritual of sacrificing sheep.
Perhaps, the United States is one of the few countries in the world that constitutionally protect people’s rights to express hatred against others’ faith, race and ethnicity. Here, because of this constitutional protection, people are free to have hateful rallies against others, produce pornographic materials as business and even burn their national flag in demonstrating their freedom of speech.
The United States is also known as the nation of immigrants and historically new immigrants from anywhere and minorities have been subjected to discrimination and even violence. Not only Muslims who are the target of discrimination and hatred in America these days, minorities in general need to be protected from hate speech.
Freedom of speech might be an exalted doctrine protected by the US constitution; it should not be allowed to spread hate and discrimination against marginalized communities, religions and races.
(Dr Qaisar Abbas is Assistant Dean of Research at the University of North Texas. With a doctorate in Mass Communication, he has worked as a university professor, administrator, researcher and freelance journalist. He can be reached at qaabbas@gmail.com)
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