Newsday Editor: Carve Hate Speech Out Of First Amendment, Hold Websites Responsible If Users Post Hate Speech

from the this-is-a-newspaper-editor dept

Remember back when newspapers were considered the leading defenders of the First Amendment and free speech? Apparently that’s over. Newsday (the newspaper I grew up reading) has an editorial up by Anne Michaud (the publication’s “interactive editor”) in which she argues for a dismantling of the First Amendment when it comes to “hate speech.” These kinds of arguments have become popular again lately (in fact, many in the US seem to think that hate speech is already not protected under the First Amendment). Michaud’s piece starts out by highlighting how she, herself, explored the white supremacist world a few years ago:

Years ago, I took a journalistic excursion through the nation’s white supremacist scene. I read books and spoke with professors, attended rallies with Aryan Nations members and Keystone Skinheads and interviewed their leaders….

When I heard about Dylann Roof, I suspected that he had trod the same path.

And yet… Michaud did not become a white supremacist. She did not become a racist. She did not post racist, hateful things on websites, nor did she go and kill nine people solely based on the color of their skin. Perhaps, just perhaps, there was more to Dylann Roof’s racist hatred than the fact that he could surf some ignorant, hateful websites. But Michaud does not consider that. Instead, she argues not just that we should carve hate speech out of the First Amendment, but that websites should be held responsible if their users post such hate speech:

We should consider whether people who run such websites bear some responsibility for the nine dead at Charleston’s Emanuel African Methodist Episcopal Church. It would be difficult, but perhaps we should carve out an exception to our First Amendment protection of free speech to hold people accountable for hate speech.

I can totally understand the emotional appeal of such a “solution.” However, it is possible (as I believe) to abhor hate speech itself — find it horrifying and ignorant — yet at the same time worry about the implications of trying to carve it out of the First Amendment, and to undermine intermediary liability at the same time.

First, defining hate speech is not nearly as easy as some people like to believe. People think it’s easy — in the “I know when I see it” kind of way, but inevitably it becomes quite the slippery slope and turns into “people saying mean things.” In political discourse, for example, it is not uncommon for people opposed to this or that political party to gleefully describe their hatred of members of that party. I find this to be silly and counterproductive, but should it be a crime? Should political websites that encourage comments attacking the opposing political party be held legally liable for such “hate speech?” Once you give an exception to “hate speech,” you only open a huge can of worms as people look to use that exception as a way to stifle and censor all kinds of speech they dislike.

Remember that parody of an anti-hate speech rant we wrote about a few months ago (which some still insist was not a parody but the actual beliefs of some people)? Whether it was a parody or the earnest feelings of someone, it shows how quickly things can morph from “hate speech” into really gray areas — including political speech and just general opinions.

But here’s the bigger issue that no one seems to discuss: outlawing “hate speech” doesn’t make it go away. It doesn’t make people stop feeling hate. Hate speech tends to be the product of ignorance, and making the ignorant feel persecuted and outcast doesn’t tend to lead them to suddenly getting educated. It tends to lead them to even greater resentment, and often a belief that they must be on the right track, since people are trying so hard to shut them up. You combat hate speech with more speech, not by censoring speech.

People say horrible things. Things we absolutely disapprove of and disagree with. But they have the right to say those things, and others have the right to speak out against them, to highlight the ignorance, and even to shame and expose the ignorance itself. Shoving it down into the darkness and pretending that you’ve somehow “dealt with” the problem doesn’t help. These people still believe what they believe. Hiding it in the dark doesn’t change that. If this country really wants to confront racism and hatred, making it illegal for people to express their beliefs (no matter how ridiculous) doesn’t fix anything. It just hides the real problems and lets them fester. You need to expose hatred, ignorance and bias if you’re going to confront it. Yet, Michaud and others want to sweep it under the rug.

And, of course, Michaud uses the usual tropes against free speech, including pointing out that there are some existing exceptions to the First Amendment, so there should be no problem adding more:

In the United States, we prize our freedom to speak, but in fact our laws uphold many limits. Sedition, for example, or advocating force as a way to change the government, is illegal. Threats, defamation, false advertising and profanity on public airwaves are illegal. Companies protect trade secrets, and courts enforce gag orders in legal settlements.

At least she didn’t trot out “fire in a crowded theater.” However, the fact that she leads with “sedition” is an interesting choice, given the history of the US using laws against sedition to crack down on political speech the government disliked.

It’s perfectly reasonable to be angered and horrified at ignorant, racist, bigoted hate speech. It’s perfectly reasonable to be concerned about those who spew such idiocy. But it’s something else entirely to argue that because you dislike it, others should not be allowed to speak their beliefs. That a newspaper editor would advocate for such things seems particularly bizarre and counterproductive.

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Comments on “Newsday Editor: Carve Hate Speech Out Of First Amendment, Hold Websites Responsible If Users Post Hate Speech”

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65 Comments
Ninja (profile) says:

Years ago, I took a journalistic excursion through the nation’s white supremacist scene.

And learned nothing it seems.

We should consider whether people who run such websites bear some responsibility for the nine dead at Charleston’s Emanuel African Methodist Episcopal Church.

We should consider if pieces like what she wrote bear some responsibility in censorship, totalitarianism.

You combat hate speech with more speech, not by censoring speech.

You know, nowadays hate speech and ‘terroristic speech’ is only as successful as the media and a bunch of morons out there allows them to be. As you said, a super effective way to deal with these kinds of stupidity (hate speech/ terrorism) is to show how stupid, ignorant such speech is. You know, make fun of how silly the message is and not necessarily waste time with the messengers.

That Anonymous Coward (profile) says:

“Newsday.com now uses Facebook for our comment boards.”
This way we can avoid the liabilities we demand everyone else face.

Old white woman tells everyone what is best for them, film at 11.

Its words on the interwebs, not a societal problem.
Its words on the interwebs, not institutional racism.
Its words on the interwebs, not parents who spend more time following faux news than raising their children.
Its words on the interwebs, not talking heads from “news” organizations who reframe everything to suit their use of fear to keep a demographic.
Its words on the interwebs, not the media.
Its words on the interwebs, which means I can tell this stupid woman to shut the fuck up.
Your solution is a feel good piece of bullshit, meant to pander to a demographic, not to actually solve the problem.

The internet isn’t the problem, the problem is the media deciding to create the spin rather than report actual facts without hysteria or slant.

Jacob H (profile) says:

trade secrets?

Weird that she mentions that companies protect their trade secrets – COMPANIES protect them, the government DOESN’T! If you successfully acquire the recipe for Coca-Cola and distribute it, you haven’t committed a crime. That’s why they guard those secrets so assiduously – the law doesn’t do it for them. They still seem to be doing ok, though…

Anonymous Coward says:

Re: trade secrets?

Weird that she mentions that companies protect their trade secrets – COMPANIES protect them, the government DOESN’T!

Nice theory. But bullshit in the real world.

If you disclose even a moderately influential company’s trade secret, the government will investigate you, rough you up, often throw you in jail, and very possibly even convict you.

Yes, it is tied to campaign contributions and lobbying, and just basically the fact that a large corporation has more power than you. But it’s no secret that that’s how the government works these days.

That Anonymous Coward (profile) says:

It occurs to me, as it often does after I’ve thought more, that she is falling into the new amazing explaination.

People are not responsible for their own actions, there is always an outside force to blame.

Words on the internet did it, not the freak who went on a spree.
Words on the internet did it, not the fact we’ve taken brownphobia to such a level that young Muslims feel that much more apart from the world that they find support in words online than in society.
Words on the internet did it, not the parents who paid no attention to the long term plans of their kids to murder a schoolmate to get in with the Slenderman.
Words on the internet did it, not a community that thought nothing of years of racism & blaming the other for misfortunes that befell them raising someone who didn’t learn the value of people who were different.

Maybe stop blaming the inanimate objects, and put the blame on the people who should face blame for their (in)actions. Stop finding an out, assign responsibility and own up to it. Stop pretending someone made a speech and the problem got solved that one time decades ago.

Anonymous Coward says:

In other news....

While we are redefining what speech is… lets once again redefine non-whites as non-humans, lets use the same logic that got the same results as the Dredd Scott case, and lets just go ahead and say that the US Constitution is just a bunch of recommendations that Government can pick and choose when to follow and when to wipe their asses with.

“Two things are infinite: the universe and human stupidity; and I’m not sure about the universe.”

~Einstein

There is apparently a LOT of stupidity to pass around.

Onewhomustpostviator says:

Among usual boilerplate, Masnick's only real worry is "undermine intermediary liability".

First, recognizing that society is ALWAYS on a slippery slope removes most of his hand-wringing. Arguing over where is the line is always useful so there’s slipping.

2nd, Masnick claims to be against ANY restrictions on speech, but that doesn’t relieve (commercial) intermediaries of responsibility to make SOME effort to NOT spread obviously hateful messages.

3rd, LIKE EVERYONE, Masnick / Techdirt are good at preaching, short on tolerance when they’re directly affected. Case in point, as always, is that my comments, mere bits of text well within common law and common decency, are censored here. — Oh, here come the excuses: it’s a private site — no, it’s got a box for public comment. — And so on, familiar to all regulars. Bottom line is: they have the ability to hide my comments and use it often.

SO, in retaliation to point up hypocrisy, I’ll just show hate speech HERE that not only passed without comment from Masnick, but HE HIRED THE WRITER:
http://www.techdirt.com/articles/20110621/16071614792/misconceptions-free-abound-why-do-brains-stop-zero.shtml#c1869
There are white people, and then there are ignorant motherfuckers like you….

Gwiz (profile) says:

Re: Re: Among usual boilerplate, Masnick's only real worry is "undermine intermediary liability".

Mike isn’t censoring you. The rest of us are.

Blue also cannot seem to understand that no one is clicking report in his comments because they wish to “censor” him or because they want to “bury the message” or whatever other tinfoil-hat conspiracy he believes is happening.

People click report on his comments because they are “trollish” and that is one of the explicit, stated purposes of the report button. (you can hoover over the button for a description)

Anonymous Coward says:

Re: Among usual boilerplate, Masnick's only real worry is "undermine intermediary liability".

I am not seeing any problem with it. It doesn’t even look like hate speech. Only an insult pointed at you. Also, you constantly label everyone that reads this blog as pirates. If an insult is all that it takes as hate speech then you are a shining example of hate speech as I am insulted that you label me a pirate.

Get off my cyber-lawn! (profile) says:

Re: Among usual boilerplate, Masnick's only real worry is "undermine intermediary liability".

1) if Mike were to truly censor you he’d just block your stupid ass
2) it’s a good thing that YOU don’t get to decide what is actual “hate speech” because you obviously have issues
3) if it bothers you so greatly then take your ball and go home….or I’ll buy you a new one to go home with if you have lost yours

Anonymous Coward says:

The Enlightenment is Dead?

This idea comes from someone else, so I hope I can articulate it as well.

Freedom of speech only succeeds because people agree with the Enlightenment values that underlie it. That we must be able to be willing to let our ideas be tested with other ideas.

Now, there are people who are so convinced of their ideas that why would they want to go through the bother of having to defend it? The don’t see the point or value of having to listen to what they see as weak or discredited ideas.

With that mindset it’s easy to shut people up.

Anonymous Coward says:

Re: The Enlightenment is Dead?

best to keep it simple.

Freedom of speech means that you have a right to spew bullshit that other people do not like without fear of reprisal from government.

You can still be negatively impacted by public opinion which is more than enough punishment for people as it is.

A TV personality uttering certain words is more doom then a legal battle for them. Public assassination is NO fucking joke!

Anonymous Coward says:

Among usual boilerplate, Masnick's only real worry is "undermine intermediary liability".

No, he is correct as to the state of the law which is solidly against any hate speech exception.

The reason for not carving out another exception for hate speech is that there is no historical precedent for placing hate speech outside the First Amendment.

There are narrowly drawn exceptions of defamation (knowingly false statements of and concerning an individual, corporation or organization), incitement to imminent lawless action, obscenity and child pornography (depictions of actual children) but hate speech — namely speech playing on political, social or religious division is at the core of political disagreement and is therefore entitled to the highest protection afforded political speech.

This has been settled law for over 50 years.

Spaceman Spiff (profile) says:

What could POSSIBLY go wrong?

Free speech is free speech. If you don’t like it, don’t listen to it! But DO NOT LIMIT IT! There are, as always, exceptions to this rule. If the speech is an incitement to riot or harm to others, then there are specific laws that limit it. IE, saying “I hate all … (insert favorite minority here)” is protected under the First Amendment. Saying “Let’s kill all … (insert favorite minority here)” is not, or should not be. Beware the slippery slope!

Anonymous Coward says:

Re: What could POSSIBLY go wrong?

If the speech is an incitement to riot or harm to others, then there are specific laws that limit it.

“The first count of the indictment charged that appellant ‘did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform . . . .’ ”

            ——per curiam, Brandenburg v Ohio (1969), footnote 3.

“Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars [$500] to which may be added imprisonment for not to exceed one hundred eighty [180] days.”

            ——per curiam, Hess v Indiana (1973), footnote 1.
 

Anonymous Coward says:

Re: What could POSSIBLY go wrong?

It is not necessarily against the law to say “Let’s kill all (insert disfavored minority here).” The presumption from the 1st Amendment is that all speech is protected. Per the Supreme Court’s recent ruling, there are three factors that must be considered before speech, even like the above, can be restricted:
1. Is there an apparent ability to carry out the threat?
2. Is there a clear intent to carry out the threat?
3. Is there a likelihood of success?

In most cases, it would be unlikely that the speaker has the ability and intent, and therefore saying this is likely protected (e.g., on the Interwebs). If you’re standing in front of a crowd of said minorities with an axe in your hand, it’s probably not. Either way, it’s probably stupid, unless of course you’re Sister Solove – no wait, that was stupid too.

Anonymous Coward says:

If you get rid of hate speech from the frredom of speech well you might as well shuit everything down as I am sure that some of you know, anyone can find something hateful in a speech.

So I guess if we follow the “bimbo’s” idea we should all shoot ourselves cause someone will find what you say hateful. I guess that the “bimbo” will be the first victim, as I feel her speech about this is very hateful of my right to speak freely, put the “bimbo” in the stocks

dakre (profile) says:

What is next?

So let’s go with her idea and strip out hate speech from the first amendment. Suddenly you are being arrested for an article you wrote about how hate speech should be stripped out because of some hateful people.

I say that because politicians are either going to add loopholes or leave them in, so others can use it to their advantage. Then claim it was hate speech because it was hateful towards white supremacists. It may not get that bad, but people don’t care until they are on the other end of the story. It’s sad how many people, companies, and the government agencies don’t think of long-term consequences for their actions. Maybe everyone has a severe case of ADD?

Anonymous Coward says:

If hate speech is illegal.....

If hate speech is illegal how will I know who I should or should not associate with?

No one wants to hang out with a closet racist/homophobe/supremist/insert other bad vile thing here

By allowing hate speech you get it out in the open where it can be delt with instead of brushing it under the rug as if it does not exist.

John Fenderson (profile) says:

Re: Let the dead tree die out already

Be careful. There’s nothing magical about printing on paper that makes is less likely to be accurate, and there’s nothing magical about the internet that makes online reporting more likely to be.

Your job as a news reader is the same as it has always been: get your news from a variety of sources with different perspectives, think critically, and don’t assume things are so just because some “authority” says they are.

This is the problem: paying attention to the news is actually work. If you don’t do the work, you aren’t being informed. You’re being propagandized.

Anonymous Coward says:

Re: Re: Let the dead tree die out already

All true and I have read good articles on paper and loads of junk online. However it seems that over time all of the presses have been aquired to push one adgenda or another. While on the Internet there are seemingly infinte digital presses and they can’t all be aquired. It always takes comparision, logic and research to strip the opinion/spin and get the facts out of the news.

1stworlder (profile) says:

Re: Re: Let the dead tree die out already

We can look at hundreds of videos of black on white crime and see unedited videos on the internet. Lamestream was still staying Gentle Mike Brown was doing gods works a week after reality news showed the video of him robbing a liquor store and beating up an Asian clerk with all the “hands up” witnesses participating, just 10 min before he was shot.

Not only did lamestream edit out any physical contact of Gentle Mike with the Asian liquor store clerk but the more important part of the “hands up” witnesses participating when they finally got around to it. Reality news knew Brown’s felony crimes from the previous November while lamestream just said he didn’t commit any serious felonies.

Anonymous Coward says:

Re: Re:

Sedition, for example, or advocating force as a way to change the government, is illegal.

Thank goodness that’s never happened in this country!

Oregon Code, 1930, §§ 14-3110-3112 — as amended by chapter 459, Oregon Laws, 1933:

“Section 14-3110. Criminal syndicalism hereby is defined to be the doctrine which advocates crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.

“Section 14-3111. Sabotage hereby is defined to be intentional and unlawful damage, injury or destruction of real or personal property.

“Section 14-3112. Any person who, by word of mouth or writing, advocates or teaches the doctrine of criminal syndicalism, or sabotage, or who prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any books, pamphlets, paper, hand-bill, poster, document or written or printed matter in any form whatsoever, containing matter advocating criminal syndicalism, or sabotage, or who shall organize or help to organize, or solicit or accept any person to become a member of any society or assemblage of persons which teaches or advocates the doctrine of criminal syndicalism, or sabotage, or any person who shall orally or by writing or by printed matter call together or who shall distribute or circulate written or printed matter calling together or who shall preside at or conduct or assisting conducting any assemblage of persons, or any organization, or any society, or any group which teaches or advocates the doctrine of criminal syndicalism or sabotage is guilty of a felony and, upon conviction thereof, shall be punished by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years, or by a fine of not more than $1,000, or by both such imprisonment and fine.”

            ——De Jonge v Oregon (1937), footnote 1.

Rekrul says:

Re: Re: Re:

Oregon Code, 1930, §§ 14-3110-3112 — as amended by chapter 459, Oregon Laws, 1933:
“Section 14-3110. Criminal syndicalism hereby is defined to be the doctrine which advocates crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”

I meant thank goodness that the fine, moral, upstanding people of this country have never tried to use violence to force political change or cause a revolution! Can you imagine how horrible that would be? What would the founders of our country think if that were ever to happen?!!

Curt Morgan says:

More media brilliance

Problem with “carving out” hate speech is its definition: Any speech I don’t like. There always are wonderful reasons for censorship, yet censorship is ALWAYS a ludicrously bad idea. And, by the way, Charleston is the excepion, not the rule to American violence. Black people are more imperiled by lightning strikes or winning the lottery (there’s danger for you) in this country.

Anonymous Coward says:

No obviously rather than picking and choosing what amendments to tear away, we should abolish the whole constitution. Make the Current president “Dear leader for life” and create a new monarchy from his family line.

What he says goes and anyone that disagrees gets their head chopped off. We will get to that point sooner rather than later if we only remove bits and pieces from the rights people are granted at the current rate.

JK Jones says:

hate speach

fascism
The only official definition of Fascism comes from Benito Mussolini, the founder of fascism, in which he outlines three principles of a fascist philosophy.
1.”Everything in the state”. The Government is supreme and the country is all-encompasing, and all within it must conform to the ruling body, often a dictator.
2.”Nothing outside the state”. The country must grow and the implied goal of any fascist nation is to rule the world, and have every human submit to the government.
3.”Nothing against the state”. Any type of questioning the government is not to be tolerated. If you do not see things our way, you are wrong. If you do not agree with the government, you cannot be allowed to live and taint the minds of the rest of the good citizens.

Duncan says:

Responsible for Hate Speech?

Perhaps we should hold CNN accountable for their inflammatory, deceptive and deliberately provocative coverage of the G. Zimmerman episode. They showed baby pictures of T. Martin, had talking heads spouting racist assumptions as facts (“G. Zimmerman outweighed T. Martin by 100 pounds”. etc.), blurred video, blurred pictures, edited audio, and repeated, over and over for weeks on end their B.S. racist narrative; a narrative that was MEANT to motivate and mobilize the extremists on the fringes of both sides while enraging their army of Tube Boobs. The Charleston shooting was a direct result of CNN’s deliberately inflammatory,deceptive, provocative racist rant. A act beyond irresponsible–because the violence that it brought upon the people of Charleston was intentional. CNN and the BO administration sacrificed the good Christians in Charleston in order to advance their racist agenda. You want to hols people responsible for their speech? Start in your own social circle.

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