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April 30, 2012 | by  | in Features | [ssba]

Speaking the Unspeakable

Free speech for those who do not deserve it.

In 2011, the Westboro Baptist Church was taken to the Supreme Court of the United States for picketing next to military funerals. At funerals, Church members held signs declaring that death in the wars of Afghanistan and Iraq was America’s punishment by God for the tolerance of homosexuality. “God hates fags” and “Thank God for Dead Soldiers” were recurring phrases. The right of these religious bigots to denigrate and offend others at their funerals was upheld 8-1. Chief Justice Roberts closed his speech with these words:

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Unfortunately, this tolerance of free speech is the exception and not the rule around the world. In most countries, free speech is only granted to the voice of the majority; the voice of those expressing favourable, morally appropriate views. Under the guise of hate speech legislation, governments worldwide seek to restrict and limit the thoughts of the populous. Freedom of speech is a right and not a privilege. That right becomes devoid of value as soon as the state steals it from the mouths of the extreme.

People normally support hate speech laws because they believe the words spoken sow the seeds for harmful acts of violence against vulnerable groups. Their logic is flawed. Voices should never be silenced even if the indirect result of their speech would be more suffering and deaths. In many other areas of our lives, we would not ban an activity just because it is distantly responsible for future physical harm.

Consider this: guns can kill people. Yet, they can also be used quite harmlessly for playful sports such as duck shooting. Should we lock up those who sell hunting rifles just because some people who get them then go out and use them in murderous killing sprees? We wouldn’t punish a boxing coach just because his boxer went out and beat someone up even though the coach is responsible for his boxer inflicting such harm.

Hopefully, you would also find it bizarre and wrong to punish the boxing coach and the gun seller for their distant role in the eventuating harm. They didn’t actually physically harm anyone and so they shouldn’t be censured. That same logic applies to the committers of hate speech. Their words may move others to violence but we should grant them the benefits of having free speech because their own thoughts are too distant from the actual harm to be considered materially relevant.

What’s more, there is value in airing these despicable ideas. For, just as one person may be moved by them to violence, many others will respond and rubbish them in the public arena. Extremist views need to be critiqued, not banished from examination. In America, free speech has been protected and the views of extremists are debated and dismissed. That discourse disappears when you force extremists to only talk in private. It is impossible to change extremist opinions when we aren’t even granted the right to listen and respond to them.

Last year, Boris Johnson, the Mayor of London, allowed UK buses to display advertisements which exclaimed that “there’s probably no God.” This year the same London mayor banned the Core Issues Trust, a Christian group, from displaying on buses that being Gay was something one could and should get over. Both instances of free speech are extremely offensive and would cause emotional harm to those targeted. The former questions one’s belief system; the latter, their sexuality. Why was only one banned?

It is because what is deemed offensive and worthy of censure is subjective. What you and I are offended by differs because the harm hinges upon our own interpretations of the words that are spoken. Thus, politicians must rely on the subjective thoughts of the majority to decide what is worthy of hate speech. Even though hate speech laws weren’t employed to ban the religious ads on buses, the example aptly illustrates the random approach to the right to free speech taken by legislators.

Free speech is curtailed only in instances where the majority considers the group offended particularly important. One is punished for inciting religious, ethnic or homophobic hatred but not for inciting hatred based on wealth or age or employment. If someone was to write about how disgusting it is to be a prostitute, it would be hugely offensive to everyone who worked in that industry, yet it wouldn’t be considered hate speech. Why is their emotional harm considered less valid?

The subjective nature of hate creates laws that do not treat groups equally. It is a lovely idea for the State to seek to protect individuals from emotional harm. However, the State only exacerbates the emotional trauma of others when it sends a signal that society does not value their issues; when the Government protects against race-based but not employment- based hate, it makes many members of society feel excluded and abandoned by their society. That is an institutional problem of hate speech, which, without one of Plato’s mythical philosopher kings, cannot be solved.

Hate speech legislation doesn’t content itself with restricting people’s views of the present but grants the State the right to limit our interpretations of history. The study of history depends upon an appreciation of its continual evolution. Pieter Geyl, a Dutch historian, accurately claimed that history is “an argument without end.” Our understanding of our past shifts due to our different points of reference, our focuses, our intentions and preconceptions of the narrative of the past. Yet in Germany and Austria, historians are put in jail for suggesting a different interpretation of World War II. The State has declared one version of events to objectively be the only version of events and any deviation from that version is criminal. That has led to the arrest of British Historian David Irving for suggesting that Hitler did not in fact intend to exterminate the Jewish race. David Irving’s ‘opinion’ is grotesque but we must protect his views in order to not restrict the proliferation of more legitimate opinions and revisions to the history of the Second World War.

In New Zealand, our understanding of the interaction between Maori and Pakeha remains a hotly debated issue even though many of the conclusions are offensive to Maori. Concluding that Maori had no control over their future and instead were overwhelmed by Pakeha is a legitimate interpretation of our history. We allow that opinion because the pursuit of greater historical certainty is considered more valuable than the potential for people to be offended by our perception of their ancestors.

World War II is rightly an important issue for Germany and Austria. However, the Government’s blunt use of hate speech legislation doesn’t inform the public of the ills of the past. Instead,
it stifles discussion, preventing true appreciation of the past. No one wants to learn about the past if there is only one version of it, especially when the Government preaches that version. For the value and desire to understand history comes through continual revision and debate. You want people to engage in history. That only happens when they’re able to see more than one opinion: when they’re not just given a spreadsheet of facts by the Government and ordered to consider it ‘the truth’. It is unfortunate that that means David Irving’s thoughts will be listened to but it is necessary to allow them for real and valuable historical debate. A state censured version of the past is stale and disconnects society from valuing and remembering actions in history.

Justice Roberts and seven other members of the Supreme Court rightly considered freedom of speech more important than the emotional harm and indirect physical harm it engenders. The world does not need a First Amendment to realise the value of speech. It is essential for our ability to live in an intellectual society. It is invalid when only granted to those with which we are comfortable. Hate speech legislation must be repealed. We must fight for free speech.


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