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Freedom For The Thought We Hate

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In 1978, a Jewish lawyer named David Goldberger defended the rights of American Nazis to march through the streets of Skokie, Ill.  Skokie was and is home to thousands of Holocaust survivors.

Guest Blogger: Brian Cuban

A Jew defending Nazis?  Why?  Not only did he and the ACLU defend the Nazis, he won.  The Seventh Circuit Court of Appeals upheld the right of the National Socialist Party of America to march. The Supreme Court refused to hear the appeal, validating the developing national policy that even the most unpopular of speech in the most unpopular of circumstances merited First Amendment protection.

What Professor Goldberg knew and defended is what many in this country do not realize, which is that the United States of America stands alone in its unbridled protection of free speech which includes the most unpopular and the vilest hate speech.  You would be hard pressed to find any other country that does not criminalize hate speech in some form, including countries we would consider “free” by our standards.

How a particular country views hate speech depends on its history and social norms that are each distinct and unique.  The United States is no exception.   Each country also defines hate speech according to its own values. What might get you a slap on the wrist in one country may result in stiff prison sentences in another.  On that note it has been interesting to follow what has been going on in Kenya.  They have been engaged in massive crackdown under their hate speech laws.  Many there view hate speech as an affront to all social norms and values.  The view was stated succinctly in an article entitled: “Purveyors Of Hate Speech Are Kenya’s Enemies”

“So, why is it so hard for some media houses to spot the phenomenon, recognise(sic) it for the malignancy and threat to civilised(sic) society that it is, isolate it and only report or comment on it in the most circumspect manner, the way profanities are rendered in print in polite society?”

It goes on to state:

“Hate speech is the precursor of hate action and the herald of attempts at, or actual, genocide”.

How do these opinions and philosophies translate to the almost absolute freedom we have in the United States to spew hatred including racial epitaphs and general intolerance of those we do not agree with, pray with or look like.  Not very well.  We can try to regulate violent actions but we simply cannot universalize a moral compass where speech is concerned.  It is an impossibility where the ability to engage in unpopular speech is so tightly interwoven into the inception and growth of the United States as a nation.  It is not that we have not sporadically tried to do so.   The Supreme Court has not always been sympathetic to free speech.

What is unfortunate is that the freedoms we enjoy today to belly up to extremes has resulted in a lack of meaning to the rhetoric. Hate speech with meaning is not always hate speech. It is the backbone of government accountability.  In the 21st Century however, hate speech as a term of battle has been thrown around so freely that we simply shrug it off as pundit putridity.  Words like Sedition, Insurrection, Treason and Terrorism have become watered down to the extent that they no longer emotionally register.  They have become nothing more than terms of art expected and shrugged off.  What we are left with is a lot of doggies barking about nothing in particular, trying to see who can bark the loudest.  The cure is not to muzzle the dogs.  It is to teach our children not to feed the animals. That is where the freedom for the thought that we hate is unleashed.  That is where the battle against hate speech begins.

Brian Cuban is a Dallas attorney and nationally recognized speaker in the areas of social media and hate speech on the internet. He writes extensively on these subjects on his widely read blog, The Cuban Revolution.
Twitter: @bcuban
Website: www.briancuban.com

Erin Andrews and the 1st Amendment Under Fire

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The FBI is investigating a man who has been accused of making email threats directed at ESPN’s Erin Andrews.  In one writing the man says: “I would like to see if Erin Andrews can dance her way through a hail of gunfire referring to her appearance on Dancing With The Stars.

Guest Blogger: Brian Cuban

I would love to shoot her with a Barrett rifle.” The FBI is apparently reluctant to make an arrest in this matter concerned that the threats constitute protected speech under the 1st Amendment.

I disagree. I believe that his threats constitute unprotected “true threats” that can be prosecuted. What is a true threat? How can we tell the difference between a true threat and what may be 1st amendment protected hyperbole or other speech? Lets start off with the fact that there is nothing political about the threats made against Ms. Andrews. There is some hyperbole (dance through a hail of gunfire) that often distinguishes 1st Amendment protected speech but there are also specifics.  There is nothing being debated that I am aware of.  I doubt anyone laughed at the threats.   Because he said, “I would like to” instead of “I am going to ” Is not necessarily controlling.

What matters in these cases? I like to say that Context is King and intent is queen. What is the context of the statement? A disturbed individual sending at least a dozen e-mails since September threatening Andrews. The e-mails were at first sexual, but the most recent were explicitly violent and “threatened Erin with murder,”. They also had details about location and method. That is the context. He is not emailing her to debate Health Care reform. The intent is to threaten and intimidate. I could go through a primer on the law of true threats. I could cover Watts v. United States, Virginia v. Black or touch on Planned Parenthood v. ACLA and the rest of the muddled states jurisdictional division on what is considered a true threat but there is no need.  It is clear from the context and speech in the emails that the sole intent is to strike fear in the heart of Erin Andrews and put her in specific fear of her safety even referencing her prior stalker episode. Context and intent.  That is not protected speech. That is a true threat. The FBI needs to get off its ass and make an arrest of this whack-job.

Brian Cuban is a Dallas attorney and nationally recognized speaker in the areas of social media and hate speech on the internet. He writes extensively on these subjects on his widely read blog, The Cuban Revolution.
Twitter: @bcuban
Website: www.briancuban.com

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