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Bleich: Too Much Free Speech?

09/29/10 7:55AM By Erik Bleich
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(HOST)  Commentator Erik Bleich is Associate Professor of Political Science at Middlebury College.  He teaches courses on race, west European politics, and ethnic diversity and conflict.  Lately he's been considering how much free speech may be too much.

(BLEICH) When a Danish newspaper published twelve images of Mohammed five years ago tomorrow, they wanted to strike a blow for free speech.  The cartoons led to protests across Europe and to violence in the Muslim world.  

An American pastor threatened to burn copies of the Koran on September 11th.  President Obama and members of our military warned that such an act would endanger American lives.

These types of incidents pose a fundamental challenge.  

We hold freedom of speech dear, and nobody wants to be bullied into silence.  Yet we don't want people to abuse free speech to stigmatize minorities or to promote violence.  To solve this dilemma, we have to strike a balance between these core values.

Most people believe that Americans have little appetite for limiting speech.  But this is only half right.  First Amendment Center surveys since 1997 do show that on average two-thirds of respondents think that the First Amendment does not go "too far in the rights it guarantees."  At the same time, over 60% also believe that people should not be "allowed to say things in public that might be offensive to racial groups."  And around half also opposed allowing speech that might be offensive to religious groups.  

We're torn between core values of upholding free speech and fighting hate speech.  In Vermont, we understand this tension especially well, because we can see first hand just how much offensive speech can divide our small communities.

The current Supreme Court interpretation of the constitution protects virtually all public expressions of racism, no matter how inflammatory.  This understanding of the law is the result of Court decisions from the 1960s and 1970s that still hold sway today.  

But American law is alone in seeing only one side of the story.  Britain, France, Germany, Canada, and most other democracies punish speech that provokes hatred against racial or religious groups, or that threatens the peace.  These countries are hardly less free than the United States.  They have passed these laws because they recognize that the harmful effects of hatred or violence outweigh the slim benefit that comes from allowing people to incite racism.

If images, speech, or actions are so inflammatory that they drive wedges between groups or are likely to provoke a violent response, then we should restrict them.  And, in fact, we used to restrict them.  Supreme Court decisions from the 1940s and 1950s explicitly banned "fighting words" that inflict injury or incite violence, and allowed states to ban "group libel" that denigrates racial, ethnic or religious groups.  These decisions have never been explicitly overturned, though they have fallen into disfavor.

American citizens and the Supreme Court have always been torn between the key values of protecting free speech and limiting racist speech.  It's time to re-open debates about the appropriate balance between these two values, and for the Supreme Court to allow limits on racist speech that does far more harm than good.

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