Watching these videos reminded me how tricky and complicated the issue of free speech is.
The right to free speech is not trivial. It is a right that needs to be used carefully and responsibly, because the pen, and the video camera, are indeed mightier than the sword. Legal words can inspire illegal actions that have terrible consequences. Just because you have the constitutional right to say something doesn't mean it is morally right for you to say it. If right-wing rabble-rousers describe their opponents as "murderers," and invite their supporters to symbolically burn them at the stake, they oughtn't express surprise if listeners take their words as the justification for real acts of violence. And it's really not fair for them to whine when commentators such as Rachel Maddow use their own free-speech rights to point this out.
I suspect that some folks would like to go one step further and make it illegal for evil-speakers like Bill O'Reilly and Randall Terry to spew their poisonous rants. I'm guessing these folks would say that it's okay to oppose abortion rights, and it's okay to oppose health care reform -- but you need to be moderate and responsible in the way that you do this. And if you're not, there ought to be some kind of legal penalty. We have to stop hate speech before it destroys us. To these folks, I would like to say, not so fast. Yes, we need to stop hate speech, but passing a law to do that is likely to have serious unintended consequences.
Back when I was in college, I took a course in constitutional law. This was maybe 30 years ago, so I apologize that I don't remember the names of all the cases that we studied. But here is how I remember the case law on free speech. Remember how you don't have a right to "yell `fire!' in a crowded theater?" Sounds reasonable, right? Well, it came from a case involving people resisting the draft during World War I. There was a law -- I think it was called the Espionage Act -- that said that if you encouraged people to avoid military service, you were committing a felony and could be sent to jail. (You remember World War I, right? That was supposed to be "the war to end all war," but all it accomplished was the humiliation and impoverishment of Germany -- which set the stage for World War II.)
Wait. I just had a brainstorm. Due to the miracle of Wikipedia, I don't have to dig through the stuff in my junk room to see if I kept those old notes from college. I can point you to an entry about the Espionage Act of 1917, which leads me to an entry about Schenck v. United States, the case in which the supposedly liberal Justice Oliver Wendell Holmes, Jr. penned the famous phrase about fire in a crowded theater. In case this isn't absolutely clear, I want to emphasize the Holmes wrote a concurring opinion for the court in upholding this act, which had such bizarre consequences as the following:
The poet E. E. Cummings and his friend William Slater Brown, then volunteers in the Norton-Harjes Ambulance Corps in France, were arrested on September 21, 1917. Cummings' "espionage" consisted mainly of his having openly spoken of his lack of hatred for the Germans.[2] The two were sent to a military detention camp, the Dépôt de Triage, in La Ferté-Macé, Orne, Normandy, where they languished for 3½ months. Cummings' experiences in the camp were later related in his novel, The Enormous Room.I can also point you to a biography of the grand old socialist presidential candidate Eugene Debs, who was imprisoned under the Espionage Act for giving this speech. He compared the despotic rulers of Germany with the supposedly democratic rulers of the United States, and found that they ruled in just about the same way. The speech is as gentle as it is eloquent, but ya know, it certainly implied that the US government was illegitimate and ought to be replaced.
Publications which the Wilson Administration determined were guilty of violating the Act "were subject to being deprived of mailing privilege, a blow to most periodicals," according to Sidney Kobre's book Development of American Journalism. A section of the Act allowed the Postmaster General to declare all letters, circulars, newspapers, pamphlets, packages and other materials that violated the Act to be unmailable. As a result, about 75 newspapers either lost their mailing privileges or were pressured to print nothing more about World War I between June 1916 and May 1918. Among the publications which were censored as a result of the Act were two Socialist Party daily newspapers, the New York Call and the Milwaukee Leader. The editor of the Leader, Victor Berger, was sentenced to 20 years imprisonment after being convicted on a charge of conspiracy to violate the Act; this was later reversed on a technicality. Other publications banned from the mails were the Industrial Workers of the World (IWW) journal Solidarity, American Socialist, bohemian radical magazine The Masses, German-American or German-language newspapers, pacifist publications, and Irish nationalist publications (such as Jeremiah O'Leary's Bull).
My point should be obvious. Laws restricting "hate speech," or laws restricting criticism of the government are just as likely -- or more likely -- to be used against progressives, feminists, and left-wing radicals than they are to be used against right-wing haters like Randall or O'Reilly.
Any feminist worth her salt has been accused of being a "man-hater." Advocates for the rights of people of color routinely accused of hating white people. Critics of US intervention in other countries are routinely accused of trying to destroy the United States.
As painful as it is to contemplate, in order for the right of free speech to be safe, it has to apply to the hateful and immoderate as well as to the thoughtful and responsible. We need to distinguish between hate speech and hate crimes.
There is a difficult but very effective way to stop the haters. We have to do what Rachel Maddow does. We have to speak out against them.
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