Silence on hate speech construes consent

By Carol Hay

On Jan. 1 I cowrote an op-ed defending Donald Trump's right to hold a campaign rally at the arena owned by the university where I'm a professor. In it, I argued that despite legitimate concerns about the racism, sexism, ableism, and xenophobia that had been exhibited by the candidate, the best way to counter hateful speech is not with censorship but rather with more speech.

There's an upside to letting people like Trump speak, I argued: When you let them speak, their true colors show themselves pretty quickly. And the beauty of free speech means that those who disagree can air their beliefs as well. Off we went to the counterdemonstration.

The night of the rally, Jan. 4, was frigid. Ebullient students and grimly determined faculty and staff huddled together in the cold, pleading with those waiting to get inside not to give in to Trump's hateful rhetoric. The queue of supporters snaked for blocks outside the arena, comprised mostly of relatively respectful folks who regarded us with quiet suspicion or curiosity. An occasional angry young white man approached us to pepper us with obscenities or scream "Ban the Muslims!" in our faces. Some of the protesters had brought hand-warmers to share with their compatriots, while entrepreneurial would-be Trumps sold them at exorbitant prices to supporters in the queue.

When reports rippled through the crowd that Trump had arrived at the venue, some of his fans - apparently confused about what we protesters hoped to achieve, sequestered as we were in our somewhat out-of-the-way "free speech zone" - taunted us for having failed to prevent him from attending his rally.

More than 11 months have passed since that night. Trump has spewed a great deal more hatred since then, and despite, or because, of it all, has been elected president.

Modeling the kind of humility and willingness to change one's mind I hope to inspire in our president-elect and his supporters, I want to publicly state that I was wrong when I said that letting Trump show his true colors would be enough to convince people to reject him. This was relatively early in his campaign, remember. This was before we learned about his penchant for calling women "nasty" or about where he liked to grab them, before he insisted that a federal judge with Mexican parents couldn't possibly be fair in overseeing a lawsuit bringing fraud charges against Trump University, before he questioned the patriotism of the Muslim parents of a U.S. soldier who'd been killed by a suicide bomber in Iraq. None of it was enough, it turns out, to dissuade voters.

I said in January that I thought Trump's rhetoric was flirting with hate speech. Hate speech is speech that attacks a person or a group because of their gender, race, ethnicity, religion, disability, or sexual orientation. In the vast majority of Western democracies, hate speech is not protected by the laws that protect freedom of speech in general. From Germany, where Volksverhetzung ("incitement to hatred") is punishable by up to five years of imprisonment, to Canada, where advocating genocide against an identifiable group carries a maximum sentence of five years imprisonment, and publicly inciting hatred against any identifiable group carries a maximum sentence of two years imprisonment - any speech, conduct, or writing that disparages, intimidates, or incites violence or prejudicial action against members of oppressed groups is legally forbidden.

The United States, on the other hand, is one of the few countries in the world where hate speech is protected. In 1942 the U.S. Supreme Court decided that unless hate speech presents an "imminent danger" - i.e., unless it will incite an immediate breach of the peace - it is protected by the Constitution. Since then, it has affirmed this judgment by issuing decisions that have protected, for example, the racist speech of members of the Ku Klux Klan and the homophobic speech of members of the Westboro Baptist Church. Unless hate speech will lead to imminent violence, it is permissible in this country.

Why do so many countries - countries that are otherwise as committed to protecting freedom of speech as we are - exclude hate speech from these protections? Quite simply, because hate speech leads to hate crimes.

According to the Southern Poverty Law Center, a nonprofit group "dedicated to fighting hate and bigotry and to seeking justice for the most vulnerable members of our society," there have been more than 700 reports of hateful intimidation and harassment since Trump's election. Many of these incidents have involved explicit references to the Trump campaign and its slogans.

The wave of bigotry and violence sweeping our country is the direct and predictable result of the hateful rhetoric Trump was willing to use to get himself elected. In electing a man willing to pander to certain people's worst natures, we risk normalizing and legitimizing them. We risk undermining every ideal our country is supposed to stand for.

I'm not advocating for censorship. Instead, I'm suggesting that if we're going to be a country that treats hate speech differently than most other Western democracies, then all decent U.S. citizens have a corresponding duty to engage in another kind of speech: speech that asserts our shared values of respect, tolerance, and belief in the equality and dignity of all people.

We should hereby call on Trump and his supporters to denounce the violence and bigotry being committed in his name. Their silence on this issue will henceforth be presumed to indicate their approval.

Carol Hay is an associate professor of philosophy and director of gender studies at the University of Massachusetts Lowell. carol_hay@uml.edu