Should Americans tolerate the invective flung at them by terrorists or their supporters, speech that is not just offensive or hateful but downright scary?
Bruce Fein doesn’t think so. He does not believe there should be a haven in our free-speech traditions for “hate speech teaching that indiscriminate murders are morally justified to further a crazed religious, racial, ethnic or political cause.” Fein believes there is a direct line from such speech to acts of terrorism, and he wants this speech outlawed.
Bruce Fein is not just some pundit on a rant. He is a constitutional scholar and an estimable thinker. And in a recent article in The Washington Times, he makes a strong argument for the criminalization of terrorist speech. “Freedom of speech does not include expression that hopes to provoke violence in order to destroy democracy, the rule of law or human rights,” he contends.
Our first instinct, of course, is to agree with Fein wholeheartedly. Why should we endure speech that crackles with a bitter desire for our destruction?
But we should not follow our initial instincts on a matter of such consequence. Any attempt to criminalize so-called hate speech, even that of the terrorist, is unwise, unworkable and unconstitutional.
From a practical point of view, drafting a law that narrowly targets “terrorist speech” would be a task fraught with futility. Precision and fairness would be elusive. For example, Fein would include “advocacy of jihad” in language to be banned, yet “jihad” is a broad term used in many different ways.
And it is next to impossible to come up with a definition that would confine the law’s application to its intended target. Expanding the definition to include the hateful speech of racists, anti-abortionists, homophobes, white supremacists and others would be tempting.
Distinguishing terrorist speech from the work of journalists, scholars and political analysts presents another hurdle. Would such a law, for example, prevent news organizations from reporting Osama bin Laden’s latest dispatch from his hideout?
Similar attempts to criminalize hate speech, whether for racial or sexist expression, have been ruled unconstitutional by federal courts.
But even if such a law could be drafted, even if its reach could be extended beyond our borders, where most such speech originates, it still would not solve the problem. We know from experience that a series of international covenants and hate-speech laws in several countries have failed to stop either the speech or the hate. To our dismay, it flourishes, even where it is illegal and punished severely.
Aside from the legal problems, there is the problem of logic. For example, Fein concedes that no one knows for sure what causes terrorist acts and that the link between speech and action is tenuous at best. There is a real danger in proposing to regulate speech, let alone punish it, based on mere assertions of a connection between speech and violence rather than a certainty.
Finally, there is the challenge such a proposal poses to our democratic values. We should not let advocates of violence stampede us into a flight from our principles, to slight the idea of a free society in our quest for a more secure society.
Criminalizing political advocacy, even odious advocacy, is one of the most pernicious forms of censorship. It is not a shield against offensive or violent speech but a double-edged sword that hacks away at vital protections for all freedoms. That is why with some regrettable exceptions Americans routinely decline to make a distinction between so-called “acceptable” speech and that which offends, or harms, or even scares us when deciding on First Amendment protections.
And that is why a series of Supreme Court opinions and two centuries of shared experience come down solidly on the side of the idea that the answer to bad speech is good speech, not censorship.
Banning speech about hate, after all, does not eliminate hate or violence. But it may eliminate a fundamental freedom and illuminate the fragility of Americans’ attachment to all other freedoms.
Even if we had the power or the ability to censor the language used in Islamic schools, textbooks and mosques, as Fein suggests, should we? Is that who we are? Is that what we stand for?
As much as we worry about the possibility that terrorist speech may incite violence against us, we must resist the temptation to criminalize such utterances. We should focus instead on the fact that hate speech exposes the haters for what they are, for their ignorance, their fear, their irrationality and occasionally their intent.
Instead, when we respond to such speech by affirming our own values, we demonstrate to the world including those the terrorists would like to turn against us the strength of our commitment to the tolerance of intolerance and the vital function of freedom of speech in protecting freedom for all.