Sunday, October 19, 2008

Free Speech and Hate Speech in the Course of Presidential Campaigns

This was probably inevitable, though that doesn't make it any less shocking. But this post is not so much a repeat of last week's discussion of racist mobs as it is an opportunity to talk about the free speech issues raised by this extraordinary political campaign.

As Kos commenter Lorelei points out in Tariq Nelson's recced post on the subject, the openly racist activity showcased in the above video is protected speech under the First Amendment. Interestingly enough, the circumstances that gave rise to the landmark 1969 Supreme Court case Brandenburg v. Ohio bear an eerie resemblance to this incident, as it was about a Ku Klux Klan member, in Ohio, preaching racism and antisemitism in the presence of a television crew.

In the most significant piece of the ruling, SCOTUS overturned the Ohio law that allowed Brandenburg's conviction: "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." So there must be a threat of imminent action and specific direction towards that action for something a citizen says to be illegal. Otherwise it's just (mere) hateful speech.

That's a very powerful, and very specific, ruling. It places the question of the legality of speech outside the bounds of the speech itself, and forces us to ask in each instance: where is that line between (mere) hateful speech and hateful speech designed to incite someone to action? It's probably somewhere beyond both this and this, but you do have to wonder about the degree of McCain and Palin's responsibility for their supporters' actions. Legally, they're safe: the link between "Obama pals around with terrorists," "Obama is a terrorist" and "kill terrorists!", for example, has not been made explicit. This is particularly true because there's no way to know the severity of the threat to Obama's life – it isn't the sort of question that gets answered until it's too late.

But just because a line of reasoning isn't explicit doesn't mean that its purveyor is not responsible for its consequences, and the force of the argument behind outlawing rabblerousing hate speech absolutely applies to this instance. Members of the press, after all, were physically and verbally attacked by McCain/Palin supporters shortly after the campaign charged the media with bias detrimental to McCain's image. Furthermore, it's important to note that presidential candidates are, by definition, the leaders of the country (or the parts of it they represent). As such, their actions have far greater potential to incite, empower and implicitly condone the actions of their followers, and they must be extraordinarily careful with their message. If they are to follow the spirit and not the letter of the law, then, they are bound by a higher moral burden than the ordinary citizen.

This is precisely why McCain and Palin's refusal to explicitly denounce the racists among their supporters is disgustingly political enough to transcend politics. No, they didn't ask that man to hang "Obama's Ghost," and I'm sure they'd be disgusted with the display. But they can't claim that this campaign isn't about race, either – there's no "race card," there's just the situation. Pressing back hard against the racism here, rather than encouraging it, would lose them supporters. But it would the right thing to do at a time when the choice has real consequences.

Now, I'm not running a political campaign, and lack this influence to affect change in the republican base. But nor am I standing in front of the Supreme Court, and I am not bound by the government's responsibility to impartially uphold a legal decision. I'm perfectly free to call that man – Mike Lunsford of Fairfield, Ohio – a despicable human being whose disgusting beliefs have led him to take deplorable action. He should be ashamed of himself, and I am ashamed by the fact that racism is so unrepentantly present in my home country.

I'm also saddened by John McCain's inability to overcome his political situation, and scared by Sarah Palin's penchant for tapping into the darkest passions of her followers. Both of them are failing in their moral responsibilities as leaders of the United States. It hardly matters whether it's because of ignorance or intentional manipulation. America deserves better.

(In what may be the coolest bit of legal trivia I've ever seen, by the way, Brandenburg was defended in part by DC’s own Eleanor Holmes Norton, who was the assistant legal director of the ACLU at the time. Aside from reminding me of this old Onion article, the image of her standing up in front of the Supreme Court in the late '60s on that particular case is some mad poetic justice.)


  1. Great post.

    It continues
    . From a rally the other day. Classy.

  2. God, seriously. Just fuckin awesome.

    Yo, how tight is that about Eleanor Holmes Norton?

  3. I loved the thing about Holmes Norton, and seriously had no clue that happened.