Let’s start with some counterfactual history.
You may find it a waste of time, I think, however, it’s relevant to ask how broad and robust the protection of free speech would be in the US if it hadn’t been for civil rights organizations like the American Civil Liberties Union, and later Jewish organizations and the NAACP?
Would a First Amendment doctrine based on viewpoint neutrality and the emergency principle have developed in the US? Or would the country have seen a development similar to Europe where hate speech – however it is defined — is criminalized and evil words to a far higher degree are seen as evil actions and therefore, cannot count on constitutional protection?
Without holding Samuel Walker, professor emeritus of criminal justice at the University of Nebraska, responsible for my interpretation, I think it’s fair to conclude after having read his prolific and still extremely topical book Hate Speech: The History of an American Controversy (1994) that the American courts’ libertarian interpretation of the First Amendment and the widespread support for an uninhibited, robust and wide‐open public space in the US would not have materialized without advocacy groups committed to free speech.
At a time when the support for free speech is sliding and people on the left and on the right are more than willing to shut down their opponents it’s worth revisiting professor Walker’s story of why hate speech is protected in the US and why the current First Amendment doctrine has played a crucial and positive role in creating the necessary environment for tolerance and inclusion of groups that for decades if not centuries were not seen as belonging to American society. There was nothing inevitable about this development. American law and policy could have gone in a very different direction.
A banal though fundamental point is that good ideas do not defeat bad ideas in and by themselves. They only prevail if there are groups and individuals willing to explain and defend them. That’s basically the reason why the US free speech tradition is different from the European one in spite of the commitment to democracy on both sides of the Atlantic. Ideas have no force in the world without advocates. In twentieth‐century Europe there were no civil rights organizations with a position similar to the ACLU’s on free speech.
It’s a common fallacy to think that the US from the very beginning was exceptional when it comes to the protection of free speech; that the First Amendment from the foundation of the republic meant that Americans enjoyed more or less the same legal right to freedom of expression as they do today.
As a matter of fact, for the first 150 years the US wasn’t that different from the rest of the world. A few years after the adoption of the Bill of Rights (1791) Congress passed the Alien and Sedition Acts that among other things criminalized making false statements that were critical of the government. President Adams used the law to imprison his political adversaries. In general, the US federal and local governments introduced the same arguments and the same kind of legal instruments as other states around the world to silence challenges to the status quo, i.e. national security, blasphemy, obscenity, offensiveness, protection of the public order and morals and safeguarding the social peace.
As late as 1928, a man was convicted for blasphemy in Little Rock, Arkansas. He put up a poster in a shop window with the words: ”Evolution is true”, ”the Bible is a lie”, ”God is a ghost”. During World War I Socialists received long prison terms for protesting the draft. Attacks from the right on the ACLU in the 1920s denounced free speech as ”un‐American” because of the organization’s defense of unions and left‐wing groups. In fact, anything that might have the tendency to cause social harm could be restricted including criticism of the government during times of war, discussion of birth control, and any literature with a sexual content. Government officials were allowed to ban speakers and groups they did not like. They issued injunctions against picket lines, Communists, Socialists, union meetings, and shut down debates about strikes and unions.
The reality of American history is that meaningful protection of free speech and other individual rights has emerged only since the 1940s. The legal climate only began to change in 1931 when the Supreme Court upheld First Amendment rights of a Communist and of the publisher of an anti‐Semitic newspaper – the first cases when speech deemed dangerous and offensive by the majority received constitutional protection and a vindication of the ACLU’s line. Until the 1960s free speech was considered a radical and dangerous idea. As Walker puts it: ”What millions of Americans think of as ancients and hallowed rights are of very recent origin.”
The hate speech issue first arose in the 1920s with political and legal debates over whether to restrict offensive racial and religious speech. The same two arguments for restricting speech were repeated over and over again: First, that a particular group like the KKK or the Nazis represent a special case and a limited exception to free speech protection should be made for it, and second, that a free and democratic society has an obligation to restrict the activities of anti‐democratic groups. In most European countries these arguments carried the day. Laws restricting hate speech and anti‐democratic groups were adopted.
The ACLU refuted both arguments, and their line of defense for hate speech as free speech was adopted by the courts and today serves as the foundation of American public policy and the First Amendment doctrine. The Supreme Court’s decisions were shaped by the advocacy groups that brought cases before it. The ACLU filed briefs in all the major cases through which the Supreme Court created the body of the current First Amendment law.
The ACLU’s arguments against hate speech provisions were summed up in the 1934 statement Shall We Defend the Nazis in America? It began by challenging the argument that the Nazis with a reference to the suppression of civil liberties in Germany after Hitler’s power grab in 1933 represented a special case and should be exempted from First Amendment protection. The ACLU insisted that the rights of everybody have to be protected and defended independent of the content of their beliefs. Once you accept exemptions to free speech you cannot be sure when they will be used against yourself. In fact, the public order act that was adopted in the UK in 1936 to target Fascists was used to imprison more anti‐Fascists than Fascists. Therefore, according to the ACLU, the right of Communists and Socialists are inextricably bound up with the rights of Nazis.
This is in essence of viewpoint neutrality, the first principle on which the modern First Amendment doctrine is built. The other, the emergency principle, implies that speech has to entail a clear and present danger if it is to be exempted from First Amendment protection. The ACLU made the case for the clear and present danger test by making the point, that nobody can say for sure what speech will lead to violence.
The ACLU and its allies knew from experience that one has to be very careful calling for banning offensive speech. First, if you are in the business of fighting for social change then most defenders of the status quo will perceive your speech as offensive. Second, terms like offensive speech are very elastic and can easily be used to target yourself the moment your opponents will have the power to move against you.
Finally, it’s worth pointing out that the libertarian idea of individual rights has been driving the modern First Amendment doctrine. The ACLU early on came to the conclusion that the advancement of the rights of a minority or any other group were best achieved through the expansion of individual rights. That’s the reason why civil rights groups in the US abandoned group libel litigation to defend minorities against racism. They saw it as a threat to their larger goal of achieving equal rights.
This libertarian idea lies at the heart of the conceptual difference on free speech between the US and Europe. The same can be said of the concept of tolerance. In America, tolerance is of the individual rather than the group, and it is more radical than what is practiced in the European nation states. In the immigrant American society, as Michael Walzer notes, the state is not committed to one group over another; it’s neutral. Government is not an arbiter of taste, and citizens must learn to tolerate one another as individuals, even within the group. This concept of tolerance is the consequence of the First Amendment doctrine’s focus on individual rights.
Professor Walker concludes that “protection of free speech has helped to ensure the participation of different groups in American society, particularly the powerless.” He insists that free speech has promoted inclusion in contemporary society. Today, this point of view is not shared by those on college campuses who argue that hate speech must be prohibited in order to achieve the inclusion of the historical victims of discrimination. But the history of the hate speech issue, as presented in Walker’s book, supports just the opposite argument. “The inclusion of the powerless and the historical victims of discrimination has been aided (not fully achieved, of course) by the broadest content‐neutral protection of offensive speech.”