The Daily Gamecock

Column: Like it or not, hate speech protected under law

This letter to the editor is in response to Shana Bethea's letter "SAE students' hate speech indefensible" published on March 23.

Ms. Bethea,

I write these columns every week and rarely get any real feedback from anyone outside of my friend group. It’s nice to get responses from people who will state, with blunt honesty, what they think of what I’ve written; such critiques help me improve my future pieces, as I do (to borrow your words) “plan to write some more in the future.”

Furthermore, this Opinion section is meant to be a dialogue that promotes critical thinking on campus, a goal that is much easier to achieve when articles are challenged and adversarial debate occurs. Thank you very much for expressing your thoughts and for contributing to those goals.

As you pointed out, I’m not a journalism student, nor do I intend to pursue a career in journalism — though I’d argue that my years of experience writing for this paper, and my awards from the South Carolina Press Association for that work, would suggest that my degree alone does not disqualify me from being a journalist. My past and my future are in law, which is a large part of the reason why I felt it necessary to devote a part of my article to the legal precedent involved in the SAE hate speech case.

The legal basis for hate speech was such a small section of my article, which focused on the moral defense of the more general freedom of speech, specifically because it is so well settled by the courts. The cases I cited last week were but few of a slew of cases from the Supreme Court that afford protections to hate speech, even when it (again, borrowing your words) “threatens or insults groups based on race, gender, ethnic groups, disability or sexual orientation … [or] can often incite prejudicial action."

In the most extreme example from those decisions, Terminiello v. Chicago (1949), a man (Arthur Terminiello) made a speech to a packed auditorium of nearly a thousand people while another thousand people picketed and protested his speech outside. The speech was so offensive and suggestive of violence that it spurred the audience to begin chanting racial slurs and immediately leave the auditorium to begin a series of brawls against the peaceful protesters. Terminiello was subsequently arrested for disturbing the peace with his speech and was convicted.

The U.S. Supreme Court reversed that conviction, holding that "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, [. . . ] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest [. . .] There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

Hate speech is protected by the first amendment not only when it can potentially incite to prejudice or violence, but even when it actually does. Whether or not we should provide this level of protection is an issue that can be disputed (and is what my article last week focused on); whether or not we do provide it is not.