Justifying Every Kind of Self-expression Undermines the Value of Free Speech

“Hate” is the subject of a lot of media news content lately. Recent “hate” crimes and their targets get intense attention, while news stories and talk shows feature arguments over whether various criticisms of minority groups should be considered “hate” speech. But just how effective is all this journalistic attention in helping us to properly understand hateful speech? Not very much, according to some journalism ethics scholars who argue that the way news presents hate speech is simplistic and often seems to violate the journalistic duty to minimize harm.

It doesn’t help that audiences of all the news media coverage of actual, hate-fueled criminal acts and hateful speech may end up misunderstanding it all as a single “hate” narrative and lose key distinctions.

We have numerous state and federal laws that increase punishment of people who are motivated to attack others based on animus or prejudice against the groups to which their targets belong. Hence our public discussions about whether, say, the shootings of several Asian women at Atlanta-area massage parlors in March 2021 should be considered a “hate” crime. Hate speech, however, is different. Even if perceived as “hateful,” verbal attacks on or criticisms of specific groups based on race or ethnicity are considered constitutionally protected speech, as long as they don’t contain a clear threat or incite immediate violence. That’s why so many folks might easily connect hate crimes to hate speech: if someone perceives hate-fueled words as harmful, an attack is an attack, whether physical or not.

The way journalists write about controversial speech may be part of the problem. As champions of free speech, journalists may be hard-wired to feature extreme or hateful speech and assume that doing so promotes a free press and a healthy democracy – while disregarding or minimizing possible harms that may well result from their coverage. This is the argument made by Brett Johnson and his colleagues, who analyzed American editorials and opinion columns on hate speech over a 21-year period, from 1998 to 2019. They focused on 335 columns by opinion journalists (as opposed to invited non-journalists and letter-writers) published in national, regional and local newspapers.

What they found was that when it came to hate-speech issues, writers overwhelmingly weaponized the First Amendment for partisan ends and demonstrated a superficial understanding of free-speech law, too often restricting their arguments to variations of “liberty for liberty’s sake.” “Opinion writers tended to offer a thinly theorized understanding of the First Amendment as an end in itself, rather than a means to other, democracy-enhancing ends,” they concluded. The journalists routinely linked hate speech to the “unassailability” of free speech, suggesting that shutting down any hate speech was always far worse than the hate speech itself. By framing hate speech in such absolutist terms, journalists denied the complex range of other duties that define journalism itself, Johnson and his colleagues concluded:

[T]hese journalists are sacrificing duties to educate their audience on the complexity of hate speech and First Amendment jurisprudence, minimizing harms while maximizing equality, and nurturing deliberative democracy, all in the name of categorically championing freedom of expression (Johnson et al., 2021, p. 32).

Americans routinely consider the First Amendment as a sort of trump card that supersedes all other considerations. But this is a mistake, as many theorists have long argued. Owen Fiss (1996), Glenn Tinder (1979), and others make the case that using our free-speech right to justify every kind of self-expression undermines its real value. In the words of prominent First Amendment theorist Alexander Meiklejohn, “What is essential is not that everyone shall speak, but that everything worth saying shall be said” (1960, p. 26). This is why the journalistic presentation of hate speech in simplistic ways, such as crying “censorship” when provocateurs are denounced, is part of the problem, Johnson and his colleagues concluded. As a counterweight, they cite a claim by Catherine Rampell of the Washington Post in 2015:

What Trump and his supporters are championing is not free speech, but consequence-free speech: the ability to spew whatever hateful or odious thing that comes to mind and suffer no loss of love, respect, or business opportunities. But no such right has ever been guaranteed, either by the Constitution or civil society and recoiling from such commentary isn’t censorship. It’s just human decency.

The view that hate speech is only a danger when it directly incites violence is a morally stunted one. Its more subtle and often more insidious effects are arguably just as harmful. When minority or vulnerable groups are gaslighted, are made to feel less worthy of a seat at the democratic table, such corrosive tactics that weaponize words should be fully combatted. Among the many duties that journalists have, spotlighting such harms should be near the top of the list.