For American Extremists, it’s a Thin Line Between Freedom of Expression and Hate Speech
Posted by dorian on June 11, 2009
June 11, 2009, 12:29 pm The New York Times Online OPINION section
Hate Crimes and Extremist Politics
By The Editors
Updated, June 11, 2:30 p.m. | The 88-year-old white supremacist, James von Brunn, has been charged with murder in the killing the security guard at the U.S. Holocaust Memorial Museum on Wednesday.
The killing of George Tiller, the abortion doctor in Wichita, Kan., and the attack on the Holocaust Memorial Museum in Washington yesterday have raised questions yet again about the role that extremist propaganda sites play in inciting violence among some militant believers. In both cases, the suspect arrested was well-known among fringe “communities” on the Web.
Most legal scholars and many experts on extremist violence in the U.S. oppose reining in of such sites, or restrictions on extremist speech generally. Should the United States consider tighter restrictions on hate speech? In the meantime, how should law enforcement agencies respond?
- Phyllis B. Gerstenfeld, criminal justice professor
- Chip Berlet, Political Research Associates
- Eric Hickey, criminology professor
- Edward J. Eberle, comparative law professor
- Eugene O’Donnell, John Jay College of Criminal Justice
Phyllis B. Gerstenfeld is a professor and chairman of the criminal justice department at California State University, Stanislaus. She is the author of “Hate Crimes: Causes, Controls and Controversies.”
Although violent extremism is nothing new, either in the United States or abroad, it continues to present several daunting challenges to those who wish to prevent it.
Some of those challenges are legal. It is often difficult to balance the protection of civil liberties, especially freedom of expression, with the desire to avoid bloodshed. Those charged with enforcing the laws have sometimes overstepped the bounds of their authority—and have infringed upon First Amendment rights—when they have attempted to investigate or silence extremists.
Some challenges are policy related. How many resources ought to be allocated to fighting the terrible but uncommon instances of hate-fueled violence? Furthermore, a very large majority of those who attack others because of their victims’ race, ethnicity, religion, sexual orientation, or other characteristics are not hard-core bigots who join supremacist groups or expound their views in websites or manifestos. Even if we could somehow focus effectively on people like James Von Brunn or Scott Roeder, most bias crimes would continue unchecked.
In recent years, extremist propaganda has been cloaked so as to appear more mainstream and less radical.
And some challenges are empirical. We still know only a little bit about what factors influence a small number of people to act on their hatreds. There is, unfortunately, no shortage of extremist propaganda. In recent years, much of that propaganda has been cloaked so as to appear more mainstream and less radical. Some white supremacist groups claim that they don’t hate anybody, they simply love white people. Extremist political parties that recently won seats in the European Parliament did so on anti-immigration and economic platforms not very different from those of the more conventional parties. It is unclear to what extent extremist rhetoric, whether veiled or not, inspires violent behavior.
One thing that ought to be remembered is that attacks like the murder of George Tiller and the shooting at the Holocaust Memorial Museum are rare. We should take care not to rush blindly into creating “solutions” that are ill-suited to the real problems, that result in poor distributions of scarce resources, or that violate basic freedoms.
Link Between Theory and Violent Action
Chip Berlet is a senior analyst at Political Research Associates, a group based in Somerville, Mass., that studies extremist and authoritarian movements. He is co–author, with Matthew N. Lyons, of “Right-Wing Populism in America.”
The alleged shooter at the U.S. Holocaust Memorial Museum spread historical white supremacist views and anti-Semitic conspiracy theories through a Web site that included the hoax document “The Protocols of the Elders of Zion” and a link to a Holocaust denial Web site.
The attack demonstrates why it is a mistake to ignore bigoted conspiracy theories. Law enforcement needs to enforce laws against criminal behavior. Vicious bigoted speech, however, is often protected by the First Amendment. We do not need new laws or to encourage government agencies to further erode our civil liberties. We need to stand up as moral people and speak out against the spread of bigoted conspiracy theories. That’s not a police problem, that’s our problem as people responsible for defending a free society.
Demagogues and conspiracy theorists use the same four “tools of fear.” These are 1) dualism; 2) scapegoating; 3) demonization; and 4) apocalyptic aggression.
It is the combination of demagogic demonization and widespread scapegoating that is so dangerous.
The basic dynamics remain the same no matter the ideological leanings of the demonizers or the identity of their targets. It is the combination of demagogic demonization and widespread scapegoating that is so dangerous. In such circumstances, angry allegations can quickly turn into apocalyptic aggression and violence targeting scapegoated groups like Jews or immigrants. Meanwhile, our ability to resolve disputes through civic debate and compromise is hobbled.
Apocalyptic aggression is fueled by right-wing pundits who demonize scapegoated groups and individuals in our society, implying that it is urgent to stop them from wrecking the nation. Some angry people in their audience already believe conspiracy theories in which the same scapegoats are portrayed as subversive, destructive or evil. Add in aggressive apocalyptic ideas that suggest time is running out and quick action mandatory, and you have a perfect storm of mobilized resentment threatening to rain bigotry and violence across the United States.
Infiltrate and Monitor Hate Groups
Eric Hickey is a professor in the Department of Criminology, California State University, Fresno.
Unlike the more common mass murderers in American society who usually are individually motivated by mental illness to kill, extremists have their own niche of chaos. To date, acts of hate murder (akin to random acts of hate violence where killing does not occur) are sporadically committed by only a handful of offenders yet they represent groups of individuals who share common hatred toward other groups based upon religious beliefs, race, ethnicity, gender, sexual orientation, etc.
What can be done to identify extremists who may be preparing to carry out acts of violence? We need to do a better job of infiltrating and monitoring their groups. Police often are aware of such individuals because they are vocal and do not hide their hate, and they often use the Internet or even hold public rallies to espouse their views. It’s during times of economic stress and social and political change that hate groups tend to attract those who feel marginalized or threatened.
In our democratic society we pride ourselves on being allowed the freedom to gather and espouse whatever we wish so long as we do not incite others to commit acts of violence. But we also, as a society, have the right to monitor such groups to ensure public safety.
The problem in doing that is we create a less democratic society. Or, we can provide more security for potential targets and institute gun control measures like those in Canada and England. Neither of these options, however, will do much to stop violent acts, even though they give us a greater sense of security.
Another approach is to create more public awareness of these groups and solicit public assistance in identifying anyone who may be at risk for acting out. But these “big brother” campaigns serve mostly to heighten public fears but ultimately do little to stop hate crimes. Watchfulness and adherence to rule of law is really the only way to keep hate-based crimes to a minimum. One only has to look around the world to see far worse situations.
What Speech Laws Say
Edward J. Eberle is a professor at the Roger Williams University School of Law and author of “Dignity and Liberty: Constitutional Visions in Germany and the United States.”
The United States is perhaps the only country in the world that allows for protection of hate speech. Much of this has to do with the idea that a free exchange of ideas is important and that allowing speech — even hate-filled speech — can be a safety valve that helps prevent outbreaks of violence.
Under this view, speech needs to be regulated only when it will present a clear and present danger, as when it is a direct incitement to violence. The only exception to this is obscenity, which is unprotected speech even when there is no concrete demonstration of harm.
More restrictive speech laws in other nations reflect different values placed on dignity and personal reputation.
By contrast, most other countries of the world consider hate speech to be an unprotected category of speech. This is the case in all the European countries, like Germany, France, Britain, etc., and also Canada.
That view reflects the different values those legal systems place on factors like the norm of human dignity and personal reputation as well as the experience of the Holocaust. In the U.S., we follow an individualist model of a right to self-determination and expression. For the Europeans and others, there is also a right to speak your mind, but there are some bounds based on respect of others.
One of the leading cases in Germany is the “Holocaust Denial Case” (1990) where the Constitutional Court upheld the denial of a group’s right to protest that Germans had never persecuted Jews or committed the Holocaust. The court stated that this was hate speech, a denigration of a group based on ethnicity and race. In a different case, “Denial of Responsibility for World War II” (1994), the court found that a book observing that Germany was not responsible for World War II was protected speech, as this was a work of research and history and was not defamatory. In a major Canadian case, the constitutional court there ruled that a high school teacher could be censured and fired for using hate speech in the classroom.
Yet most European countries find obscenity to be protected speech unless it demeans women, harms youth or incites violence. As with most things, there are underlying social norms that guide the complexion of the law.
The Mental Health Factor
Eugene O’Donnell is a lecturer at the John Jay College of Criminal Justice. He was a former officer in the New York Police Department, a prosecutor with the district attorney offices in Brooklyn and Queens, and a police academy instructor.
It is impossible to ignore the mental health dimension in the Holocaust Museum attack and an earlier assault at the Federal Reserve headquarters by James von Brunn. There may also be serious mental health issues with Scott Roeder, the killer of Dr. Tiller.
Extended post-release mental health supervision should be explored — in some cases, for the whole life of the ex-convict.
There is a gaping hole in our mental health infrastructure which will not be easy to fill, but needs urgent examination and action. Far too many potentially dangerous people are left to fend for themselves. Even when there are concerned family members or friends in their lives, these guardians are often worn out from trying to help, or do not know where to get dependable care.
We continue to leap at the chance to declare actions criminal despite the fact that attacks like this museum shooting are rooted in an extremely irrational and bizarre world view, and are thus outside the scope of traditional criminal notions of “punishment” and “correction.” And of course, even where the criminal justice system is utilized, extended post-release mental health supervision needs to explored, in some cases for the whole life of the ex-convict.
This is not to trivialize the danger of domestic hate groups which certainly exist and need to be ceaselessly monitored. But local police departments have mostly extricated themselves from the business of spying on individuals suspected of political extremism. This is because many departments were accused of abuses in conducting surveillance on, for example, members of the Communist Party and individuals tied to black nationalist activities. In some places, including New York City, police departments cannot even be present at or record rallies conducted by persons espousing hateful objectives.
As always, protecting the rights of an individual, while safeguarding society as a whole, presents an exquisite challenge, with the dangers of stifling individual expression balanced against the wider harm than can occur if we do not get that balance right.
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