The First Amendment is under attack. Events in the past couple of years, from the 2016 electioneering to the Berkeley de-platforming of an atheist professor, have led to the public discourse on free speech in the United States. Some people believe free speech is not absolute — that there should be a distinction between free speech and hate speech. There are also those who believe free speech is what its name dictates: free. And the last group of people couldn’t care less. The current zeitgeist makes touching this topic tantamount to strutting through a minefield. But if we don’t, who will?

So, what is freedom of speech? The Merriam-Webster dictionary simply defines it as “the legal right to express one’s opinions freely.” Based on this definition, one has the right to say whatever they want, legally. The term legally here makes this more complex. Hence you can say whatever you want as long as it is legal to do so.

That same dictionary defines hate speech as “speech expressing hatred of a particular group of people”. Does this mean that the freedom of speech makes it permissible to include hatred against a group of people? Technically, the answer to that question is yes. The reason for this is largely due to the First Amendment of the Constitution of the United States, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Current events, like the “Unite the Right” protest and its aftermath, in a small city, that would have been unknown to anyone, where it not the location of a prestigious university and home to Thomas Jefferson and James Monroe, have led to calls by many to make hate speech illegal. If that were to happen, then it would, technically, be going against a tenet of the First Amendment, except legislative juju happens.

Like in everything else, from mass incarceration to health care, and the topic of the day, free speech, the United States is exceptional. Suzanne Nossel, a former assistant secretary of state for international organizations, aptly describes this in her recent article for Foreign Policy: “The Problem With Making Hate Speech Illegal.”

“Most of what we consider hate speech — slurs, insults, and provocations — are shielded from bans and punishment by the First Amendment, rendering ours the world’s most protective standard for hate speech in the world.”

The article goes on to say, “a neo-Nazi salute is illegal in Germany but permitted here. Thirteen out of the European Union’s 28 countries ban Holocaust denial, a viewpoint that’s perfectly legal in the United States. Whereas many Muslim-majority countries ban depictions of the Islamic Prophet Mohammed, such cartoons can be published here.”

This exceptional business of free speech is one of the things that make the United States great and a bastion of freedom the world over. For example, sometime ago a roommate of mine from South Asia saw me watching a popular political satire show where the host called a presidential candidate a “whiny little b—-.” He opened his mouth in surprise when he heard that. Then he told me that saying something like that about a very powerful man in his country could potentially put the life of such a TV host in danger. But in the United States, using profanity against powerful people on cable TV is a right, and one doesn’t have to fear for their life when they do it.

The American Civil Liberties Union

This is also why an organization like the American Civil Liberties Union, which was established to “defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country” can defend the right of the members of the KKK, neo-Nazis and white nationalists to demonstrate when the city of Charlottesville tried to revoke their protest permit.

This isn’t the first time ACLU has taken unpopular positions in their defense of the Bill of Rights. In 1978 they defended the rights of a Nazi group to march through the Chicago suburb of Skokie, where many Holocaust survivors lived.

They have been involved in epochal cases, like Brown vs. the Board of Education, which led to the desegregation of schools; the Scopes trials, which in part makes it possible for teachers to teach evolution in schools today; Roe vs. Wade; “which held that the right to privacy encompasses a woman’s right to decide whether she will terminate or continue a pregnancy,” and most recently they were involved in the declaration of the President’s travel ban as unconstitutional by a Federal Appeals court.

One can notice that the ACLU has mostly held on to its principles under any circumstance even when public opinion was not in their favor. But an argument can be made for the importance of organizations like the ACLU. Organizations that have a single voice, and are unshakable in their adherence to their core principles. These organizations see the world as it should be and try to make it so. Sometimes they are successful and sometimes they are not, but they are important, especially in a time where most politicians and their political bases can give Janus a run for his money.

But then things are not always how they should be.

In practice, there might be exceptions to the freedom of speech, because things are, most of the time, how they are and not how they are supposed to be. The doctrine of clear and present danger was adopted by the Supreme Court of the United States in the 1900s and 1910s as a framework on what limits to the freedom of speech can look like, but that doesn’t include hate speech, at least not the kind generally referred to.

Eugene Volokh, a law professor at UCLA, makes this distinction in a 2015 Washington Post column: “there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.”

The situation in Berkeley, where the radio station KPFA de-platformed the evolutionary biologist Richard Dawkins come to mind. The station had booked him to talk about his recent book of essays, Science in the Soul. Dawkins is known for his tweets and remarks criticizing the ideas inherent to Abrahamic religions especially Islam, which often offend adherents to the various religions. Hence, he has been accused many times, for spewing hate speech. But Dawkins has the right to do so, since he criticizes the ideas, that people hold, without the intention to start a fight. Hence, his tweets and remarks about these ideas, no matter how denigrating they sound, won’t count as an exception to the First Amendment, even if it offends the feelings of those who hold those ideas.

The clear and present danger also has to do with the question of imminent danger. Volokh in that same column buttresses this point, with respect to making “true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future).” He stated that “indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.”

This also includes “falsely shouting fire in a crowded theater,” which could potentially lead to imminent danger of those around. Hence, because one feels like it does not give such a person the right to pull a fire alarm lever when there is no evidence of a fire.

Apart from the complex legal ramifications to free speech, there are also, maybe more complex, political ones. For example, in a community that is majorly Hispanic, a Hispanic Republican congressman who is running for reelection in 2018 might be on very tenuous ground in the current political climate. Such an individual might have gotten elected before the current political dispensation and now such a person could potentially be faced with the dilemma of not upsetting the party base and not upsetting the voters. Hence, topics on hate speech become politicized and distinct lines of the issues are blurred while those for or against such issues, with only a superficial understanding of the issues themselves, draw lines in the sand, and political mayhem becomes the reality.

This maybe the reason for much equivocation, with respect to the White House, on their response to Charlottesville. Indeed, a sizable amount of their political base were part of the “Unite the Right” protest and to condemn them in unequivocal terms could potentially result in the loss of future elections.

What can we then do – potentially?

Proposing to make hate speech illegal might have very serious legal and political ramifications down the line; this, in part, is because in the United States, watching one news channel with a different political leaning than yours could potentially sound like hate speech, directed at you, to your ears. But somethings can be done.

First, making an appeal to “our better selves” has its advantages and could be useful. Because a person can say something does not mean a person should say it. All things may be lawful but not all things are expedient. Putting oneself in the shoes of another can help.

This does not mean that a group of people who want to, by any means necessary, expel another group of people from “their country” should be left to go unchallenged. In a situation like this depending on the usefulness of “our better selves” could potentially be an idealistic joke.

The repercussions of the implementation of many ideas are well documented in history. The Communist practice of state atheism, the ideas of racial and ethnic superiority in Nazi Germany and Rwanda, the ideas of feudalism in the Medieval Europe, Popes having temporal power from the Dark ages to the Renaissance, etc.; all have well-documented macabre consequences during the years and in some cases, centuries they were implemented.

Considering this, ideas of the type just mentioned should be potentially shut down by the affected governments using the Apparatus of the State, so history doesn’t repeat itself.

For example, the criminalization of Holocaust denial or a Nazi salute in post-war Germany, and the 2003 Rwandan constitution that eliminated references to ethnicity from  national discourse could be seen as pragmatic and well justified reasons for states to put limits on free speech.

What this would look like in the United States is something that should be left open for discussion and not hindered.

Tam Kemabonta can be reached kema4033@stthomas.edu.