One of the fundamental tensions in true constitutional thought is the tension between encouraging and protecting the freedom of speech on the one hand, and the societal duty to discourage and/or punish hate speech, on the other.
Anyone--whether a lawyer or not--who suggests that this is an easy tension to resolve is kidding themselves, and you, or they are simply ignorant of the true scope and nature of the problem.
By calling it a "problem" I don't mean to imply that it is a problem that has a "solution", i.e., something that we can do to make the problem go away forever. In fact, that tension should always be with us. The fact that the tension exists, the fact that people talk about it, is a sign of a healthy democracy, just as a temperature of 98.6 is the sign of a healthy body. That body temperature is a tension between the heat necessary to run the body and the point at which heat begins to damage the body. Just a few degrees too cool and the body beings to shut down. Just a few degrees too hot and tissues start to become damaged. That fine "knife edge" of temperature is right, as doctors sometimes say colloquially, "where you want to be".
A healthy ongoing public debate about the nature of free speech vs. hate speech is "right where we want to be" as an American constitutional democracy. The day that it becomes too easy to prevent hate speech is the day that it becomes too tempting to overly discourage "free speech", which would start us down the slippery slope towards the thought police, censorship and intellectual fascism. On the other hand, the day that we fail to acknowledge the powerful role that language has in shaping our society, i.e., the day that we decide hate speech no longer matters and that everyone is free to call anyone else whatever they wish, is the day that we stop acknowledging that a better tomorrow lies around the corner.
A recent story out of Missouri highlights this tension.
Along our highways, it's now common to see "adopt-a-highway" signs indicating that a particular sponsor has either personally cleaned up a particular stretch of highway or has hired a contractor to do it in their name. Most often, we see civic groups and corporate sponsors "adopting" stretches of highway in this fashion, and most of the time, none of us are going slow enough to be able to read the signs, let alone particularly care who's adopted that stretch of road.
In the future, I now plan to take a moment to slow down, perhaps even pull over, if time allows, and see just who is "adopting" our highways.
A neo-Nazi group calling itself the "National Socialist Movement" (the words "national" and "socialist", in combination, are usually indicative of some variety of "Nazi"), adopted a portion of a Missouri state highway in order to get their official recognition for it in the form of an adopt-a-highway sign. Because states cannot legislate the source of the content of speech due to free speech concerns - which is appropriate and reasonable lest the state become the official auditor of what the public may and may not hear from whom - Missouri was powerless to refuse these Nazis the opportunity to adopt the highway and get that official recognition. So they fashioned a rather clever sidestep.
They renamed the highway after a rabbi who had fled Nazi Germany to escape Nazi persecution. If this Nazi group wishes to clean up the highway, they are going to be cleaning up a highway named after a Jewish rabbi and civil rights activist who fought the Nazi way of thinking.
Obviously, some of the Nazis in that particular group objected, suggesting that it was "childish" for Missouri to do that. This, by the way, from people who wear red, white and black arm bands around their arms and who, as adults, mind you, march around with their hands in the air, worshiping a dead lunatic. So much for "childish.
Yet, there were other objections from Constitutional scholars who suggested that even this "sidestep" of renaming the highway amounted to "content-based" anti free speech activity on the part of the Missouri highway department. In essence, the highway department was judging the morality of the message, and responding with a deterrent.
I read the article, sent to me by a friend, and began to think about it. As a Constitutional scholar, as an attorney who swore to uphold and defend the Constitution against all enemies, including when an enemy happens to be a government, this posed a real conundrum for me.
On the one hand, the whole purpose of the Constitution is to protect the minority from the majority, even when the minority are a bunch of hateful, ignorant bigots. It is their right to be hateful ignorant bigots today that protects the next "free thinking religious conscientious objectors" (for example, like the Puritans who came here on the Mayflower) from governmental persecution tomorrow. No one - no one - is intelligent or wise enough, or great enough in soul and in spirit, to be solely responsible for judging the content of the ideas that flood the marketplace in a country with 300 million people. For these reasons, it is critical that we not allow the government to ever generally legislate the content of our free speech except in the case of the most outrageous abuses, such as yelling "fire" in a crowded theater, or publicly calling for violence.
When there is a legitimate purpose to legislating against free speech in certain environments, however, where certain people are more vulnerable, then, of course, it is also appropriate to do so, such as in New Jersey where we have anti-discrimination laws that affect the workplace and places of public accommodation, where hate speech is aggressively legislated against. Put simply, you can't call your co-worker a racist name because you will upset the Law Against Discrimination, but you could call a stranger that racist name at a bus stop. Either way, the racist name is just as hurtful and just as objectionable on moral grounds, but at a bus stop, the state lacks the legitimate interest to legislate against that speech and therefore free speech concerns must reign supreme. In the workplace or in a school, however, or when the individual called the name comes into a restaurant to eat, it is especially inappropriate and therefore it is legitimate for the state to legislate against it.
That's the balancing act.
Part of me applauds the Missouri move. Technically, there is absolutely nothing wrong with renaming a stretch of highway to applaud and laud a civil rights activist. At the same time, however, it is very clear to me that they would not have made this move but for the particular content of the Nazi speech. Part of me is worried about that "trick", even if it has the effect of offering counterbalancing ideas to Nazi thought. What if, the next time, some racists in the state legislature decide to rename the highway after Adolf Hitler just because a synagogue decides to adopt a highway?
Unlikely, of course, but then, once upon a time, everything that ultimately surprises us seemed very unlikely before it happens. As a Constitutional scholar, my job is to think about this, even when most people don't, even when most people are smiling and clapping over the Missouri move.
For now, I guess more of me likes the idea than doesn't. But it's worth a discussion, and as I said above, the discussion is a symptom of a healthy democracy.
So discuss it.