CJ Reid

Gov & Cit U3

28 Apr 2020
Rights-Related Position Paper

Freedom of speech is a crucial part of the freedoms that America so dearly

values. It is the cornerstone of democracy and allows for individuals to think and

express their opinions without governmental intervention. Free speech, as listed in the

first amendment, is founded on the idea that regardless of how controversial an opinion

might be, it ultimately stimulates discussion and debate which benefits society. The

purpose and definition of this concept are expanded upon in the Snyder vs. Phelps case

surrounding disrespectful speech. Mr. Snyder filed a lawsuit against the Westboro

Baptist Church for protesting at his son’s funeral. The case quickly made its way to the

Supreme Court in a battle between freedom of speech and freedom of religion, where

the justices ruled that although the speech was “distasteful and repugnant” (United

States Court of Appeals for the Fourth Circut), it was ultimately protected by freedom of

speech. The courts have frequently sustained the idea that speech should be countered

by “more speech, not enforced silence” (Hudson), and that it is not the responsibility of

the government to censor speech that it disagrees with. While freedom of speech is

certainly important, there is a not-so-fine line between free speech and hate speech.

The constitution protects ideas, but hate speech and bigotry are incredibly destructive

and there is absolutely no respectable individual who advocates for such things. The

concepts of free speech and freedom of religion, and the hesitancy of government, have

allowed objectively abhorrent behavior like racism, sexism, and protests of terror to run

rampant and un-denounced in the name of an outdated and extolled concept.

Ultimately, the all-encompassing protections included in freedom of speech impair

judgments in situations where what is being done is clearly unethical. It encourages

pompousness, arrogance, and ignorance, and creates a scenario where people are

given far too much power to commit acts of hate.

Free speech is not hate speech. This is a point that most other developed

nations have figured out, aside from the U.S., of course. While America tends to have a

“no holds barred” approach on what qualifies as free speech, the European Court of

Human Rights has issued statements declaring the cruciality of freedom of expression

in a democratic society while stipulating that “Tolerance and respect for the equal

dignity of all human beings constitute the foundations of a democratic, pluralistic

society… it may be considered necessary … to sanction... forms of expression which

spread, incite, promote or justify hatred based on intolerance”(Factsheet - Hate

Speech). Following this statement, they also list a series of landmark cases involving

nearly every specific type of hate speech from “Denigrating national identity” to “Display

of a flag with controversial historical connotations” and the result of each case. This

document was published by the court itself and has a succinct, yet comprehensive and

absolute list of the court’s views on hate speech. In the 60 years since its founding, the

ECHR has managed to accomplish exceptionally more than our own highly-revered

Supreme Court has in regards to free speech, despite it being almost 200 years

younger. Europe, unlike the U.S., isn’t holding on to a sanctified idea that free speech

should be absolute in the same way that they don’t hold on to the concept of gun laws

being absolute. They recognize that political ideologies don’t apply to every instance

and that what is moral should supersede what is governmentally mandated.

In addition to the excusatory nature of free speech in the U.S., having it be

idolized excuses immoral behavior as patriotism. Groups spouting intolerance are the
most fervent protectors of free speech because they understand it exempts them from

repercussions for being a malicious human being. Hate groups such as the Westboro

Baptist Church are even wholly funded by their abuse of free speech through lawsuits

(Brown). America’s overprotective nature surrounding expression is not only protecting

hate and intolerance, but it is blatantly funding it. Nobody would argue that protesting a

soldier’s death is beneficial or morally correct in any way, but somehow when it’s put in

the context of free speech it is fervently protected despite it still being immoral and

disgusting. The act hasn’t changed, it has simply been excused as a necessity as if we

can either allow all speech or no speech, but never anything in-between.

The immoral nature of acts is further ignored and supported by the courts in the

name of free speech. Ultimately, free speech is an easy answer to a hard question.

What if a religion is spouting hate speech, are they protected by freedom of religion?

What if an antiquated anti-black group from one of the darkest periods in America is

holding violent protests? What if individuals are advocating for the genocide of Jews?

Some of the questions, of course, aren’t so hard, but they risk controversial answers.

This creates a situation where courts hide behind the concept of free speech in lieu of a

controversial court case to protect them from political backlash. They choose what is

easy over what is right. It isn’t simply courts that hide behind the law, either. America’s

legal system has morphed into a system where individuals find ways to abuse the law

instead of following it. The law isn’t supposed to protect individuals from getting in

trouble, it is supposed to ensure that everybody is following the rules, but individuals

such as the Westboro Baptist Church manipulate it in a way that allows them to get
away with (and even benefit from (Brown)) things that are objectively and morally

wrong.

While it is clear that there must be some limits on free-speech, these limits must

be exercised with extreme caution. One major argument for the blanket-coverage of

freedom of speech is the inherent, albeit warranted, distrust of government that is

deeply rooted in the American ideology. If the government is given leeway in what is

protected by free speech, there is a substantial fear of regulations being abused. While

this is a valid concern, it does not mean that there should be absolutely no limits on free

speech, it simply means that citizens need to hold the government accountable for the

decisions they make. Additionally, governmental organizations protected slavery and

sexism for hundreds of years; they are most certainly not the best judge of what is good

and what is bad. There is a fear that if the courts choose to limit free speech it would

ultimately result in them ruling in favor of politically popular views rather than what is

objectively correct. This is a huge concern, but again returns to the necessity of

exercising restraint at the highest level. We currently have a system that places freedom

of speech above moral correctness which is subjectively wrong, but in a system with

punishable speech, it is crucial that the courts sustain an attitude of hesitancy in regards

to limiting expression.

Free speech is crucial to democracy, but it is not more important than human

decency. Justifying hate speech as “free speech” is destructive and barbaric in its most

systematic form. Individuals and courts hide behind the concept of free speech as if it

somehow excuses their abhorrent and intolerant behavior, and in many ways, it does.

The prioritization of free speech blinds the courts from making a moral decision on what
are often objectively wrong acts of hate. The perceived superiority of free speech and its

place in our justice system has created a scenario where soldiers are fighting to give

bigots the right to protest their funerals and to protect a human rights clause written by

slave owners during one of the most oppressive time periods in American history.
 Bibliography

Brown, Jennings. “The Reviled Westboro Baptist Church Makes a Ton of Money by
Suing Communities That Don't Let Them Protest.” Business Insider, Business Insider,
24 June 2015.

Factsheet - Hate Speech. European Court of Human Rights, Mar. 2020, echr.coe.int.

Hudson, David L. “Counterspeech Doctrine.” The Free Speech Center, Mtsu.edu, Dec.
2017.

United States Court of Appeals for the Fourth Circut. Snyder v. Phelps. Sept 24 2009,
44.

Versteeg, Mila. “What Europe Can Teach America About Free Speech.” The Atlantic,
Atlantic Media Company, 19 Aug. 2017.