"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." –The First Amendment
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech…" –Benjamin Franklin
"Tolerance and defense of all forms of speech, no matter how extreme or offensive, make up the yardstick by which you can measure true freedom," I reminded myself. Freedom of speech, a concept that normally warms my soul, was doing little to warm anything else as the cold December wind tore at my face and hands. However, the chilling effect of nature’s barrage was no match for that of the cold hatred that I was hearing on this frigid afternoon, as I stood watching twenty members of the Ku Klux Klan openly attack anyone that was not white. There was only one thing that could keep me here at this public display of hate in Lexington, North Carolina. I was here to show my support, support not of their vulgar and offensive viewpoints, views which I find personally repugnant, but rather support of what I consider to be the most important freedom a person can have: the freedom of speech.
"When you see a black man on the street, address him as nigger… there aint no law against it," one of the klansmen shouted. "He is certainly wrong on that point," I thought to myself. Besides being morally wrong and downright deplorable, to perform such an action is clearly against the law.
"But why?" you may ask. After all, doesn’t the first amendment read "Congress shall make no law … abridging the freedom of speech … " (emphasis added)?
This is certainly true, but in the case of Chaplinsky v. New Hampshire, the Supreme Court recognized a First Amendment exception for what is known as "fighting words." What are fighting words? These are words that the Court described as "those which by their very utterance [1] inflict injury of or [2] tend to incite an immediate breach of the peace" (The Fighting Words Doctrine). Since this ruling, the Supreme Court has clarified the fighting words doctrine to include only part two of the definition, and then only when the words "… tend to provoke violent resentment," and are "directed at the person of the hearer" (The Fighting Words Doctrine). Based on the rulings of the Court, it is therefore legal for the Klansman to say what he did, but illegal for anyone to heed his advice.
Is the Supreme Court within its bounds to enact any such limitations? According to the absolutist viewpoint, no they are not. Absolutists, who have always been in the minority, believe that the forefathers "literally meant no law when they said no law," according to Barbara Walls, an instructor of history and political science at Guilford Technical Community College (GTCC). Ms. Walls is herself a professed absolutist, "… like Justice Black." She notes an apparent contradiction of the Court rulings, saying, "If you’re going to have a fighting words restriction, then it is only logical to include hate speech under it."
While conceding the sensitive and difficult nature of protecting hate speech, Ms. Walls is quick to note that "it’s hardest to protect that which you don’t agree with … but remember," she prompts us, "when you protect the rights of those which you despise the most, you protect your own rights as well … The purpose of the bill of rights is to protect the minority from the tyranny of the majority."
But why should we protect highly offensive forms of speech such as hate speech? To understand the importance of unrestricted freedom of speech, you need only to look to one of its greatest advocates: the nineteenth century philosopher, John Stuart Mill. Mill, an Englishman, has been regarded as probably the foremost spokesperson in the world for free speech. But why did he feel so strongly about unfettered speech?
In On Liberty, a work many consider his Magnum opus, Mill explains that there are three primary reasons for the necessity of unbridled speech (133). First of all, the currently prevailing opinions may be false. "He who knows only his own side of the case, knows little of that," states Mill. People in this situation, he explains, are in a position where "Their conclusion may be true, but it might be false for anything they know ... " (126). Secondly, he maintains that even if an opinion is true, a challenge to the false is necessary for clear understanding and acceptance. In his words, "… there is always hope when people are forced to listen to both sides; it is when they attend only to one that errors harden into prejudices, and truth itself ceases to have the effect of truth, by being exaggerated into falsehood" (139). Last of all, Mill reminds us that sometimes the real truth lies in a combination of the two conflicting opinions. Based on Mill’s assertions, one could say that unrestrained freedom of speech is essential for the discovery, maintenance, and preservation of truth.
Given the persuasiveness of Mill’s arguments, one may wonder why so many support restrictions, even on fighting words. In his essay titled Racist Speech as the Functional Equivalent of Fighting Words, Charles R. Lawrence, III offers an explanation as to why the Court ruled the way it did. He also gives two reasons as to why he agrees with the Court’s decision that face to face insults are unworthy of first amendment protection.
The first reason, he explains, is that racial insults produce immediate injury. "Visceral emotional response to personal attack precludes speech," he states. "Attack produces an instinctive defensive psychological reaction." One could summarize by saying that face to face racial insults tend to provoke a fight or flight response on the part of the victim.
The second reason cited by Lawrence for justification of restricting fighting words is the preemptive effect insults have on further speech (240). One of the underlying purposes of the first amendment is to foster the greatest amount of speech possible. In the case of face to face insults, speech is often an inadequate response. If a gay person is called faggot, Lawrence explains, "… it is not sufficient to deny the truth of a word’s application, to say, I am not a faggot" (241). Thus, it can be seen how the preemptive nature of such manner of speech is in direct conflict of the underlying goal of promoting further speech.
How far should we go to protect the first amendment rights of those guilty of hate speech? When such extreme types of speaking are often offensive to the overwhelming majority, do we really need to pay more than just lip service to the defense thereof? The American Civil Liberties Union (ACLU) seems to think we do. From within their own ranks, the ACLU can produce a number of examples of just how far someone dedicated to the freedom of speech will go in its defense. One shining example of absolute dedication to the first amendment rights of everyone, regardless of how deplorable they might be, is the story of Anthony P. Griffin.
Anthony P. Griffin, a black attorney, put his money where his mouth was by defending the Ku Klux Klan in the 1993 Texas commission on Human Rights vs. Michael Lowe, Grand Dragon of the Ku Klux Klan case in Austin, Texas (Bond 1). His devotion to free speech cost him on both a personal and professional level. Being highly offended by Griffin’s actions, the National Association for the Advancement of Colored People (NAACP) removed him from his voluntary post as general council. In addition to removing his post, seven members and officers of the Texas State Conference wrote to the NAACP Executive Director Dr. Benjamin Chavis asking that he suspend Griffin’s membership immediately.
In spite of this backlash, and much to their credit, others of the black community showered Attorney Griffin with support. The Black Heritage Committee of Galveston, Texas gave Griffin its Citizen of the Year Award. Also, the Congress of Racial Equality (CORE) has extended an offer of membership to him (Bond 2). As for everyday black people, Griffin says "Walking through airports, walking down the streets, shopping in the stores, regular black folks … stop me, smile, and extend a hand and express verbal support. Maybe," he goes on, "this is because the First Amendment affects those who are poor, disenfranchised, and powerless to a greater extent than those of us who are more fortunate, comfortable, and whose everyday activities are not threatened by governmental restraint."
Of the First Amendment, Griffin has this to say: "The First Amendment makes us laugh, scream, cry, scratch our heads at the wonderful contradictions – it crosses color, class, and racial lines." It is obvious that Attorney Anthony P. Griffin shares the view of the ACLU that "without noticing it or expecting it, freedoms hard won can slip away unless we continue the fight for their preservation on every front" (Bond 2, emphasis added).
Regardless of which side one takes, that of the absolutist or that of the current Supreme Court rulings, it should be obvious that the freedom of speech is a freedom that should never be taken lightly. It is not a freedom that we should ignore or take for granted. Jefferson, Franklin, Mill, and other great thinkers spoke on the importance of free speech. Our founding fathers deemed free speech so vital that they made it a part of the First Amendment to the Constitution. They knew that truth has nothing to fear from exposure. They knew that in order to see something clearly, it must be examined in the open light of day.
During the discussion of what, if any, limitations should be imposed on the freedom of speech, the beauty of free speech manifests itself; for through free and open discussion, examination, and debate, we reinforce and shape our values as a common people. We open the door to learning and tolerance by remaining steadfast in supporting the right of even the most extreme voices to be heard. This is what makes America what it is; the land of the free.
"They have the right to stand up there and look and sound as stupid as they want to." –anonymous black woman, referring to the Ku Klux Klan at a rally held in Lexington, North Carolina on December 6th, 1997
"If all mankind were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind." –John Stuart Mill
Works Cited
Bond, Jean Carey. First Amendment Shock: An Unusual Civil Liberties Story.
ACLU Issues.
Lawrence, Charles R., III. Racist Speech as the Functional Equivalent of Fighting
Words. Social Ethics: Morality and Social Policy. Eds. Thomas A. Mappes
and Jane S. Zembaty. New York: McGraw-Hill Co., Inc., 1997, 239-242.
Mill, John Stuart. On Liberty. Primer of Intellectual Freedom. Ed. Howard Mumford
Jones. Cambridge: Harvard University Press, 1949, 110-141.
The Fighting Words Doctrine. MIT. legal/chaplinsky-v-new-hampshire> (7 December 1997). Walls, Barbara. Personal Interview. 5 December 1997.
