Anti-Defamation League Claims Free Speech does not extend to “Racist Groups”
I have heard it repeatedly. “Free speech does not mean hate speech!” I am calling shenanigans right now. What the hell do these people mean? Of course hate speech has the same protection as free speech requires in other areas. If not, the idea that the earth was round or that it was not the center of the universe would have never been questioned! Perhaps a ban on blasphemous speech? Why not?
So why am I disgusted? The Anti-Defamation League, which is apparently a Jewish nonprofit that exists for the purpose of opposing hateful, anti-Semitic groups. The ADL’s website contains an “About the Anti-Defamation League” section where anyone can learn about its mission. It says, in part:
The Anti-Defamation League was founded in 1913 “to stop the defamation of the Jewish people and to secure justice and fair treatment to all.” Now the nation’s premier civil rights/human relations agency, ADL fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all.
I guess “natural rights” got left out of that mission statement and can be conveniently disregarded. And, of course, when the existence of a protected expressive speech incident requires “bigotry,” of course that discussion must not exist.
It should be clear to anyone who understands what “free speech” means as to why this is clearly unacceptable. Free speech is a “liberal” idea (not necessarily a democratic one, but perhaps that, too) that exists to prevent the perpetuation of ignorance. So long as it is protected, we need not censor or silence holocaust deniers, flat-earthers, creation scientists, or any other group that advocates for what is thought to be an “idiotic” position. Surely Orville and Wilber Wright were viewed as foolish for thinking that their airplane would fly. Einstein’s spacetime even took a very long time to be accepted. I am perfectly okay with that. That is why we live in, and fight to keep, a free society where ideas can be shared freely. That does not mean that such speech is protected from counterspeech, in fact, the truth is quite the contrary. We allow idiots to speak because it allows us to examine their evidence (or lack thereof) and then choose to reject their ideas. The ADL seems to think that it knows better for all of us what the “good” speech is along with the “bad” speech. I would prefer to avoid their totalitarian ways.
As Eugene Volokh points out, this is not only a factually incorrect reading of First Amendment jurisprudence, it is also what he calls a, “deeply misguided…matter of what the law should be.” His reasoning is that opening the door to silencing their opposition could come back to haunt them. If somehow their own activism were labeled as “hateful” or “bigoted,” the ADL itself would be no longer able to accomplish its goals. “Free speech for me and censorship for everyone else” seems like a good policy, until it is your speech subjected to the censorship, and your opponent’s free speech rights being protected.
When hate speech becomes regulated like “obscenity,” (and thus content-based restrictions on expressive speech become acceptable) it just might be time for a revolution. But such speech does not need protection because I am hateful or because I support hateful viewpoints, but because labeling one’s opponents as worthy of censorship while enjoying your own freedom of speech is hypocritical and counterproductive to the liberal values on which this country is founded. The ADL would be right to condemn Potash’s expression (Potash is the regional director for Nebraska, Iowa, and Kansas), which are available for your perusal here.
Shortly thereafter, Potash updated his statements to say:
When I wrote to the Omaha World-Herald and said that “free speech does not extend to racist groups,” I misspoke. Free speech can and should extend to such groups. However, extremist or racist speech is not and should not be protected where it incites imminent lawless action that is likely to occur. ADL has a long history of defending free speech and we stand by our deep commitment to this fundamental principle of democracy. See e.g., Responding to Extremist Speech.
And in doing so, he has done precisely what I claimed that he did in the first place, using an overbroad definition of “imminent immediate lawless action” to make his point. Now he tries to claim that when an “extremist” or a “racist” incites immediate lawless action, that such speech is not protected. But this is once again an ignorant interpretation of a legal doctrine. One must neither be “extreme” nor “racist” to riot, or yell for an angry mob to burn a building to the ground. This speech is not being censored because of its content, but because the speech itself encourages criminal conduct immediately. The Supreme Court of the United States has even said in Hess v. Indiana, 414 U.S. 105 (1973) that “We’ll take the fucking street later” does not meet the definition of “imminent lawless action.” The intent of this exception of the legal doctrine has nothing to do with the content as extreme or racist. It exists because the government has a compelling interest in protecting the safety of those who would be legitimately injured or killed by allowing such speech. Simply holding an extreme or racist viewpoint is grossly insufficient for such a narrow exception to America’s first liberty.
It is also worthy of noting that this entire discussion happened due to debate surrounding a hate crime bill in Congress, which is quite possibly another expansion of federal government policy. Making a crime federal and punishing it as a “hate crime” does absolutely nothing that current laws against these acts fail to do, but that is a topic for another discussion.
