First Amendment stressed by today’s hate speech

Negative stereotyping is the ugly common denominator connecting the race baiting of U.S. Supreme Court nominee Judge Sonia Sotomayor and the recent hate-crime killings around the country.

Some say the murder of a physician who performed therapeutic abortions; the killing of Stephen Tyrone Johns, an African American security officer at the National Holocaust Museum; and the random murders of two members of the congregation of a Unitarian church in Tennessee last year by a man who hates liberals, were catalyzed by the endless caterwauling of right wing hate radio and propaganda TV.

What’s left of the political right, at the moment, seems reduced to a consistent strategy of stereotyping their opposition and repeating false characterizations ad nauseam until they come to be seen a reality. Anne Coulter’s vicious tirades against liberals is a good example of that tactic. And so is Bill O’Reilly’s labeling Dr. George Tiller as “Tiller the Killer” over and over.

Stereotyping is the same tactic white supremacists used against African American slaves, misogynists use against women, and the Nazi Party used against Jewish people. Did Hitler’s endless speeches denouncing Jews as non-human “others” catalyze the Holocaust? Was the negative labeling of African Americans as subhuman the cornerstone of Jim Crow laws in the South? Does the stereotype of women as fragile, dependent, weak and foolish keep women as second class citizens? Is there any doubt?

But saying that hate speech catalyzes capital crimes makes those of us who follow the First Amendment jumpy.

Does helping to create a climate of opinion dominated by negative stereotypes make you equally culpable for murderous acts by people who share your opinions and stereotypes because you’re an effective propagandist? Even the voicing of utterly vile prejudices are protected by the First Amendment unless they cause immediate, direct harm.

And what about trying to ruin the character of a Supreme Court nominee by accusing her of racism because she refers positively to her background and personal history? Is that kind of attack protected by the First Amendment too, even though it’s a clear case of slander? I believe it is, even though the law is clear about criminal libel.

If you attack Judge Sotomayor for being a “Latina,” accusing her of being helplessly prone to some kind of ethnic bias, couldn’t you also accuse the Supreme Court itself, with seven of its members being white males, as a sexist and racist institution on the face of it?

Hasn’t it become clear by now that every judge’s background impacts their decisions, no matter what Chief Justice Roberts told the Senate Judiciary Committee during his confirmation about his ability to rise above his political past as a Bush family protegee and Republican operative and become a dispassionate umpire of the law?

Why should Judge Sotomayor’s background be used against her, when Justice Roberts’s background is discounted all together? Could it be because she’s Hispanic, a woman, and grew up in modest means, and he’s a well-to-do Anglo male?

There’s no excuse for it. It’s simply a political tactic that uses negative stereotyping and gross oversimplification to cloud reality and gull the citizenry.

But is any of this, even murderous hate speech, beyond the protection of the First Amendment?

My instinct is to say no. But another part of me is wondering if the current situation, with advanced communication technology in the hands of hate speech propagandists, might come to be associated with many more acts of domestic terrorism, in which deranged people feel they’ve been given the go-ahead to act on their delusions, becoming murderers and threatening the public welfare.

In a situation such as that, could high-tech hate talk, disseminated to a mass market, be considered to be a direct cause of violence and harm?

In our country, speech is free unless it is an immediate incitement to harm. That principle was decided in 1969 in a unanimous decision in Brandenburg v. Ohio by all members of the so-called “liberal” Warren Court, which included William O. Douglas and Thurgood Marshall.

A leader of the Ohio Ku Klux Klan, Clarence Brandenburg, had been convicted in an Ohio Court on a l919 Ohio law designed to quash dissent during an early “Red Scare.” Mr. Brandenburg spoke of “revengeance”[sic] against “niggers” and “Jews” during a KKK rally and was changed with “advocating” a “crime,” “violence,” and “unlawful methods of terrorism.”

The Supreme Court ruled against Ohio, saying that the history of free speech decisions “have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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 speech that incites “imminent lawless action” may be considered unconstitutional. This is a further refinement of a Supreme Court ruling in 1919 in Schenck v. United States that said speech is unconstitutional that causes a “clear and present danger” of unlawful action.

In 1927 Supreme Court Case Whitney v. California, Justice Louis Brandeis wrote these famous words “no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”

While these rulings seem to preclude hate-filled media from being subjected to the “clear and present danger test,” should the country experience waves of domestic terrorism and political murders directed at people on the left, who knows how much the tradition of free speech might be damaged in this country.

The crimes of political vigilantes and people driven mad by hate are often treated as mere extensions of political ideas, and are seen somehow as comprehensible if not forgivable.

But the families of people murdered for political reasons, family networks of usually dozens of innocent people, are burdened with the trauma for the rest of their lives. Murder is not an other form of discourse.

Speech can be at least as mighty and as potentially catastrophic as the sword. It can also be the tool that informs us and protects us against tyranny. And that is why our constitution protects it so strongly.