When Free Speech Collides with Hate Speech, Truth is the Remedy
Conspicuously wearing my kippah, I walked out of a TJ Maxx in Cincinnati, Ohio, where I was visiting family, when a car full of skinheads sped up to me with arms stretched out the window in a Hitler salute chanting "Sieg heil!" I sternly retorted: "I condemn and despise your hateful ideology but support your right to free expression!" If these Neo-Nazi skinheads thought Jewish people were strange, I'm sure my response confirmed it.
The Georgia Department of Transportation rejected the Ku Klux Klan's application to adopt a highway because of the groups' hateful ideology. The American Civil Liberties Union is now defending the Klan. Despite the KKK's despicable and hateful ideology, the First Amendment protects their free speech, and therefore their right to participate in Georgia state's Adopt-A-Highway program.
At face value, Jewish law does not appear to support pure free speech. It does, however, recognize and espouse the benefits of rigorous debate. The interpretation of Jewish law is in fact created through heated debate, for example, between the schools of Hillel and Shamai. The Jewish approach tends not toward regulating different opinions, but promoting the "marketplace of ideas," believing that is where the truth of matter will be revealed.
Laws prohibiting the government from regulating hate speech, excluding of course obscenity, defamation and incitement to riot, are generally unconstitutional in the United States. U.S. Supreme Court opinions dating back to Chaplinsky v. New Hampshire 315 U.S. 568 (1942) affirm that speech directed at a specific individual meant to inflict injury or "incite an immediate" threat (i.e., "yelling fire in a theater") is not protected under the First Amendment. However, unless you can show that the words pose a direct and immediate threat, hate speech is still generally protected.
The more difficult question is where do we draw the line when it comes to hate speech that is not designed to incite but is an expression of a hateful ideology? Should society regulate speech such as a sign bearing the insignia of the Georgia KKK on an interstate highway?
In Jewish law the punishment for hate speech (e.g., lashon hara) is a heavenly dermatological disease called tzara'at. In Numbers 12:10 Miriam is afflicted with the disease for criticizing the Ethiopian race of Moses wife. Interestingly, nature and the divine, not the justice system, afflict an offender with tzara'at (Artscroll Tanach, Leviticus 13, commentary, pg. 272). Those afflicted with tzara'at were marginalized from society, in designated camps, as part of their atonement (Leviticus 13:45-46). Figuratively, the hate speech itself marginalized the offender from society just as the vile rhetoric of the Westboro Baptist Church isolates their ideology from mainstream society. It is a cause and effect relationship without any need for government censorship.
The inherent message is that we don't need to ban or censor hateful speech, because the real solution is marginalizing hateful ideology through truthfulness. Harvard law professor Alan Dershowitz said it best: "Freedom of speech carries with it certain obligations. One of those is to condemn false speech. The best answer to false speech is not censorship, it is truthfulness."
Racist, homophobic and hateful organizations like the KKK undermine their ideology more than promote it. Allowing them to speak in public helps expose them for who they are. The best way to respond and defeat those ideologies is by exposing them.
By attempting to suppress their speech we only make them stronger. Racist ideologies thrive in countries like Austria, France and the United Kingdom, where hate speech is restricted. For instance, the Netherlands' islamophobic and racist Party for Freedom received almost 1.5 million votes in the 2010 election. Those guilty of hate speech often garner media attention, become martyrs and use speech suppression as a recruitment tool.
In 2004 when the Eighth Circuit Court of Appeals ruled that the KKK had a free speech right to adopt a highway, the Missouri legislature used the opportunity to effectively and constitutionally combat the hate speech:
Lawmakers named that section of roadway the Rosa Parks Highway, as the New York Times reports. When a different white supremacist group adopted another highway segment, Missouri lawmakers renamed that road for Rabbi Abraham Joshua Heschel, a Jewish theologian who escaped Nazi Germany for the U.S. where he became a civil rights activist.
The best way to delegitimize racist and bigoted viewpoints is through the marketplace of ideas not through government regulations infringing on the First Amendment.