The Chicago Humanities Festival and host Geoffrey Stone set the stage for a lively, often heated, discussion on hate speech when it chose two panel members with opposing views on the First Amendment. This was the third and last segment on the CHF’s Free Speech: Deep Dive.
Stone (Edward H. Levi Distinguished Service Professor of Law, University of Chicago) was joined by law professor Nadine Strossen, former president of the American Civil Liberties Union, and law professor Mary Anne Franks, author of a book provocatively titled The Cult of the Constitution.
Stone set the stage by describing the history of jurisprudence on so-called hate speech starting with the first high court decisions a century ago. Critics of US participation in World War I were convicted under the 1917 Espionage Act; the court found their speech was not protected by the First Amendment. The first “hate speech” case was Beauharnais vs. Illinois (1952). An Illinois law made it illegal to publish or distribute materials portraying the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion.” Beauharnais, the president of the White Circle League, distributed a leaflet asking the mayor and Chicago city council to stop the “encroachment … upon white people, their property and neighborhoods … by the Negro.” Both the Illinois and US supreme courts upheld his conviction and said his speech was not protected, but the powerful dissents of justices Holmes and Brandeis became more influential over the years.
Stone also described a landmark free speech case in 1977, when a neo-Nazi organization wanted to march through the village of Skokie with its large Jewish population. Their right to do so was upheld by the US Supreme Court. (The ACLU defended the Nazis’ right to march and suffered severe criticism, loss of members and donors at the time. )
In the 40 years since, Stone said, all the decisions regarding hate speech have overruled speech restrictions unless there is a “clear and present danger” of causing grave harm. Hate speech, the court has said repeatedly, is viewpoint speech and no different than antiwar, anti-abortion or Black Lives Matter speech. (The term clear and present danger has been modified more recently to be described as speech resulting in an emergency.)
The three participants all agreed hate speech is not a legal term; there is no agreed-upon legal meaning for the term.
Franks is professor of law at the University of Miami School of Law and president of the Cyber Civil Rights Initiative, which works to combat cyber harassment, nonconsensual pornography, (“revenge porn”) and online abuse. Her 2019 book, The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech, criticizes the “blind reverence for the Constitution” represented by what she calls the conservative fetish for the Second Amendment and the liberal fetish for the First Amendment (supported by groups such as the ACLU).
In her initial remarks, Franks said that the First Amendment is largely used to support the status quo by a “monoculture” made up of those who wrote, interpreted and brought claims under it and the lawyers who defend those claims—most all of whom, she noted, are “white, straight and male.” She described cases she has been involved with regarding nonconsensual pornography or “revenge porn.” In two recent cases in Illinois and Texas, Franks said, the ACLU has been on the opposite side, defending the First Amendment rights of those who distribute such material. The ACLU and some media groups’ position is that “so-called ‘revenge porn’ bills would have a chilling effect on free speech rights.”
Strossen, ACLU president from 1991 to 2008, and emerita professor at New York Law School, is author of the 2019 book, Hate: Why We Should Resist It with Free Speech, Not Censorship. She pointed out that First Amendment decisions have protected viewpoint or content neutrality. The court may not censor speech because of its content with a few exceptions such as emergency (or “clear and present danger”), fraud, child pornography, sexual harassment, bribery or extortion, or a clear incitement to violence.
Stone made the distinction between two types of First Amendment jurisprudence. One is whether the viewpoint itself is harmful (and it must be proved harmful). The other is speech that actually causes harm, such as death threats, the classic “fighting words” or “shouting fire in a crowded theater.” Or inciting insurrection, Strossen pointed out, in reference to the January 6 insurrection at the US Capitol.
Strossen noted that counter speech is the most effective weapon against hate speech, invoking the free marketplace of ideas concept. We have the responsibility to speak out against hateful attitudes and actions. She made clear at several points that while she agreed with much of what Franks said, she didn’t agree with all her positions.
Franks pointed out that counter speech doesn’t help in cases where someone publishes an opponent’s home address or distributes naked photos without the subject’s permission.
At another point in the discussion, Franks pointed out what she sees as similarities between First and Second Amendment absolutism. This absolutist position, she said, referring to the theme of her book, means “more speech and more guns.”
Previous Deep Dive discussions have been balanced conversations among the three participants. In this case, Stone more or less sat back and let Franks and Strossen debate their positions. (Their conversation went on so long that there was time for only one audience question.)
Stone occasionally interjected a First Amendment clarification and concluded the conversation by saying that in a free society, “it’s incumbent on us to defend our positions. We have a moral responsibility to step in and speak against hateful speech and its speakers. It’s essential to the way a free society should operate.”
Two earlier Free Speech: Deep Dive programs curated by Stone focused on national security and leaks in the context of the 50th anniversary of the Pentagon Papers; and questioned whether and how social media might be regulated. Each program runs about one hour and all are available to view in the CHF archive.
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