Why we must tolerate hate

In America, if you decorate your house with anti-Semitic slogans or your clothing with swastikas, you are engaging in protected speech. But paper your neighbour’s car with anti-Semitic bumper stickers and you are guilty of vandalism. Hate speech is constitutionally protected (as the Supreme Court confirmed most recently in Snyder v Phelps). Destruction or defacement of someone else’s property is legally prohibited.

Advocates of censoring ‘hate speech’ might say that we value property more than the elimination of bigotry. I’d say that we value speech, as well as property, more than inoffensiveness. Besides, protections of presumptively hateful speech are not absolute: a prohibited act, like assault or vandalism, accompanied by vicious expressions of bigotry, may constitute a hate crime under law.

Consider this recent incident at Wheaton College in Norton, Massachusetts: anti-Semitic graffiti was scrawled across the back door of the Jewish Life House, where four students reside. The student who discovered it, Molly Tobin, described herself as ‘shocked, angry, and terrified’, according to the Boston Globe. But students and faculty members have ‘come together’ in support of diversity, with a potluck and a Facebook campaign. Campus police are investigating the incident, and the school is offering a $1,000 reward for information about it.

Could the vandals in this case be prosecuted for a hate crime? Perhaps. Massachusetts law provides that assaulting someone or damaging her property with ‘intent to intimidate’ on the basis of race, colour or religion, among other characteristics, is punishable by a $5,000 fine and/or a maximum two-and-a-half-year prison sentence. Whether or not the graffiti on the door of the Jewish Life House was intentionally intimidating is a question of fact; but you can guess how it might be resolved.

Should the vandals in this case be prosecuted for a hate crime? Fierce free-speech advocates, like my friend and colleague Harvey Silverglate, condemn hate-crime laws for practically creating thought crimes. ‘It is foolish and dangerous for the legal system to punish a malefactor on the basis of whatever ideological or personal views or hatreds might, or might not, motivate crimes against person or property’, Silverglate says. ‘The slope from punishing acts to punishing thoughts is very slippery indeed.’

I tend to agree. Hate-crime laws are generally sentence-enhancement laws, imposing harsher sentences on crimes motivated by bias. They ensure that assaulting someone you hate because of his personality quirks is a lesser crime than assaulting someone you hate because he belongs to a particular, protected demographic group. In other words, when you’re prosecuted for a bias crime, you’re prosecuted for your bad thought and beliefs as well as your conduct.

Once convicted of a hate crime, you may even be subject to mandatory thought-reform: in Massachusetts, you’re required to complete a state-sponsored and designed ‘diversity awareness programme’ before being released from prison or completing probation. Deface someone’s property for the wrong reasons – bigotry or a bad attitude towards a protected group – and your thoughts become the business of the state.

This seems quintessentially un-American, if freedom of speech and belief are quintessential American values. But individual freedom is sometimes valued less, especially on campus, than diversity and the psychic as well as physical security of presumptively disadvantaged groups. Greg Lukianoff, president of the Foundation for Individual Rights in Education (FIRE), reports on the lamentable consequences of this values shift in his important new book, Unlearning Liberty. ‘On college campuses today, students are punished for everything from mild satire, to writing politically incorrect short stories, to having the wrong opinion on virtually every hot button issue’, he reports, in disturbing detail.

When ‘mild satire’ and arguably offensive jokes are deemed too dangerous or disruptive to tolerate, it’s not surprising that anti-Semitic graffiti is ‘terrifying’ and virtually incomprehensible. At Wheaton, Molly Tobin says she remains afraid to walk around the campus at night and describes her reaction to finding the graffiti on her door as ‘an out-of-body experience’. While appreciative of the strong support offered by Wheaton faculty and students, she considers it ‘pretty tragic that something on this level has to happen for the campus to respond like this’.

Death, disease, war and genocide are tragic; famine is tragic; climate change is potentially tragic. An isolated incident of anti-Semitic graffiti is unsettling and lamentable, but it is hardly a tragedy. It is human nature. Few of us will go through life without being insulted or disliked on account of race, religion, sex, sexual orientation, or other immutable characteristics. People can be mean and stupid. People harbour biases; they always have and always will, and their right to believe in the inferiority or sinfulness of particular groups is the same as your right to believe in equality.

I’m not suggesting that we should resign ourselves to bigotry. I’m arguing that we should tolerate expressions of it. This doesn’t mean tolerating bigoted acts. Vandalism is not a form of protected speech, regardless of the ideas it expresses. Penal laws should punish assaults on people or property that are and aren’t motivated by bigotry. Anti-discrimination laws can and do single out bias-motivated acts in employment and education with virtually no opposition from free-speech advocates, except in some cases that involve verbal harassment.

Advocates of censoring hateful or offensive speech draw on civil rights laws to assert a right not to be offended or intimidated on account of membership of a protected group. But in the interests of equality, the state can regulate some educational policies (especially in public schools) as well as hiring, firing and promotion in secular businesses without significantly infringing on the First Amendment. The state can’t regulate hate or offensiveness without eviscerating fundamental First Amendment freedoms.

Is this an excuse for vigilantism? When is it necessary, appropriate or ethical to publicly shame people for their bigoted speech? The website Jezebel sparked a minor fracas about journalistic ethics by calling out and ratting out to school administrators teenagers who spewed crude, racist tweets in the wake of Barack Obama’s re-election: ‘We contacted their school’s administrators with the hope that, if their educators were made aware of their students’ ignorance, perhaps they could teach them about racial sensitivity. Or they could let them know that while the First Amendment protects their freedom of speech, it doesn’t protect them from the consequences that might result from expressing their opinions.’

In fact, because the First Amendment protects the students’ freedom of speech it should also protect them from some of the consequences ‘that might result’ from their speech, especially consequences imposed by public school officials. It’s true that student speech rights have been significantly limited in recent years, but the girls at Jezebel might want to consider whether that’s cause for celebration.

In any case, they obviously enjoy their own First Amendment rights to shame teenagers or adults whose speech offends them. They enjoy the right to encourage public school officials to punish students for their racist tweets. But they should perhaps exercise this right with a sense of irony. Instead, the Jezebel site is infused with the self-righteousness of people who have little compunction of speaking up in the interests of shutting up their ideological opponents and shutting down speech they find offensive. Freedom of speech respects self-certainty, but requires at least a little self-doubt.

Wendy Kaminer is a lawyer, writer and free speech activist. Her most recent book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon (UK).) A version of this article was first published at theatlantic.com on 28 November.