Hate Speech and Free Speech

Hate Speech and Free Speech

Led by Don Knebel — Center for Interfaith Cooperation board and Hazem Bata — Islamic Society of North America

These conversations were essentially discussions of pictures that represent particular instances of hate speech intersecting with free speech. Discussants were given by Don Knebel a short background about the sorts of hate speech not protected by the Frist Amendment: speech intended to slander, to intimidate, to provoke fights and disruptions of the public order. Participants were then asked for their opinions of different pictures, asked whether the speech depicted in the pictures should be permitted or be illegal.

Cross burning on private property


In response to an African American family moving into a previously all white neighborhood, one of the neighbors set up a burning cross on his own property. Should this have been legal? All of the discussants agreed that it should be. It was clearly an act of intimidation: cross burnings have historically been a signal of direct physical violence to come. An African American in the conversation said that if this had happened to her, she would have immediately started looking for a new place to live. As an intimidating warning of impending violence, then, a burning cross has a different status than other offensive symbols of racism such as a Confederate battle flag.

Holocaust denial

holocaustDon Knebel showed a picture of a poster denying the Holocaust ever happened. If this had been posted in a German institution such as a bank, it would have been illegal. Germany is one of 16 countries in the world in which it is against the law to claim the Holocaust never happened. (The picture Don used was actually from a case in South Africa, where Holocaust denial is not against the law.)
Participants were asked whether denying the Holocaust should be illegal in Germany. And should it be illegal in the US? There was reluctant agreement that it could or should be illegal in Germany—it was such an inhuman and inhumane act that Germans should never be allowed to forget. But no one thought denying the Holocaust should be illegal in the US. The context is very different.

The context changes with the question of whether denying slavery should be illegal in the United States, a case that seems similar to Holocaust denial in Germany. Almost everyone agreed that it’s worse than denying the Holocaust in the US, but it should still not be illegal. An African American in one of the conversations disagreed: she worries that if powerful institutions in the US adopt the view that slavery didn’t happen or that it was actually good for the slaves, they will be able to rewrite history

Anti-Muslim bus posters

antimuslimA third case discussed deals with a government agency rejecting an advertisement that was perceived as offending Muslims. “In any war between civilized man and the savage,” the advertisements read, “support the civilized man. Support Israel. Defeat jihad.” American Freedom Defense Initiative sought to display these signs on public buses in cities on the East Coast. Because the bus lines were run by the cities, they were subject to the First Amendment in their decisions about what advertisements they would run. The Massachusetts Bay Transportation Authority, a government agency, turned down this advertisement, saying that that reference to “savage” disparaged all Muslims. The MBTA agreed to run an advertisement that compared only “those engaged in savage acts.” But the American Freedom Defense Initiative refused, saying it had a First Amendment right to run the advertisement as it submitted it. The First Circuit Court of Appeals in Boston decided that the First Amendment had not been violated because the advertisement would effectively disparaged and libeled all Muslims. The participants in the table conversation were unanimous in agreeing that MBTA should be allowed to reject the advertisement.

Andres Serrano’s “Piss Christ”

pissIn the 1980s artist and photographer Andres Serrano generated controversy with “Piss Christ,” a photograph that depicts a small plastic crucifix submerged in a glass of the artist’s urine. Although it was favorably received by critics when it was first exhibited, later exhibits provoked outrage because it offended the beliefs of Christians (and others, including Muslims who revere Jesus as a Prophet). Should Serrano’s work have been deemed illegal and banned?

Opinion at the table was nearly unanimous that it should not have been banned. Again, the context matters. The work was displayed in a non-government museum, chances are anyone who paid to go into the museum was not going to be caught off guard by such a celebrated and controversial piece of art.

(An aspect of the controversy that wasn’t discussed much at the table conversation had to do with the funding for “Piss Christ,” in part a grant from the taxpayer-funded National Endowment for the Arts.)

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