How free speech beat hate speech

Prof. Jack Balkin, writing at, says the First Amendment gave “Pastor” Terry Jones the right to burn the Koran – but ultimately got him to cancel it:

The Rev. Terry Jones, the leader of a small congregation in Florida, recently announced he would burn copies of the Quran on September 11. A broad spectrum of figures in public life, including President Barack Obama and Gen. David Petraeus, urged him not to.
And soon, he said he wouldn’t, offering a face-saving excuse.
What explains this turn of events? The answer could well be the First Amendment to the U.S. Constitution, the very same amendment that protects Jones’ freedom of speech. The First Amendment allows — in fact it encourages — people to disagree with what Jones planned and to condemn it in public.
Instead of having the government punish people who say intolerant things, the American system relies on people to criticize each other for violating what they think are the proper norms of tolerance and equal respect in a democratic society. People will sometimes disagree about these norms, but that disagreement is also part of free expression.
This system is by no means perfect, and its imperfections seem most obvious when you are on the receiving end of another person’s hate-filled screed.
Nevertheless, its advantage is that it allows social norms to evolve and adjust to new problems and new circumstances in ways that rigid criminal penalties cannot. It allows freedom for obnoxious people, but it also lets people object to demagogues and hate mongers and turn the weight of public opinion against them.
The best response to people like Jones is not to throw them in prison. Rather, it is to criticize their actions as contrary to our country’s most hallowed traditions. Over the long run, using freedom of expression to promote tolerance and denounce intolerance is how Americans have preserved their experiment in democracy.

Via @kalimkassam. When a so-called “liberal” Supreme Court Justice starts talking like this, unfortunately, I fear many Americans learned precisely the opposite lesson – that less free speech, not more, is needed to combat acts of intolerance (especially where one belief system in particular is involved).
Update: Justice Breyer has clarified his remarks.

13 thoughts on “How free speech beat hate speech

  1. Bruce says:

    I suspect the visit by the FBI had more to do with Terry Jones reversal than did other people exercising their First Amendment rights.
    Regarding free speech and liberals – my experience is that most so-called liberals are quite illiberal when it comes to tolerating speech they find offensive. Ergo, global warming skeptics are committing “a form of treason — treason against the planet” (Paul Krugman), Huck Finn and Tom Sawyer are among the most commonly banned books due to use of the “N” word, and many universities have highly restrictive speech codes.

  2. 8bEbgcBBi says:

    “The answer could well be the First Amendment to the U.S. Constitution, the very same amendment that protects Jones’ freedom of speech. The First Amendment allows — in fact it encourages — people to disagree with what Jones planned and to condemn it in public.”
    And the very same amendment that gives the Imam the right to build a mosque near ground zero gives the people the right to express disapproval with it in public.
    Somehow, this lesson also seems to be missing from certain commentators.

  3. Dara says:

    So will you guys stand behind Wikileaks self-assumed right to publish anything and everything that they can get their hands on?
    They’re apparently about to release a chunk of data that dwarfs the last one.
    Surely it passes this (Hot Air’s purposefully specific) test:
    “It means that only when speech that will directly and immediately result in a threat to human life in the proximate setting can the government criminalize it — and it has to contain the element of malicious falsehood as well.”
    I guess Julian Assange should be comforted that even though the various agencies of the US government are hounding him, there remain proud Americans that approve of what he’s doing.

  4. Dara says:

    It passes the test from Hot Air that I mentioned above since the damage is not “in the proximate setting”.
    I used the words “purposely specific” because I feel that the argument is being crafted with a willful ignorance of the way things work today that apparently only gets noticed when you don’t agree with the speech.
    If you extend the argument, Hot Air should support Assange, but I’m under the impression that they don’t, so what gives?

  5. Bruce says:

    1) Why should I care what someone on Hot Air says?
    2) As for being hounded, how exactly is this being done — itching powder, whoopee cushions, exploding cigars? I’m not aware of any pending legal action by the U.S. government against Assange. Perhaps you can enlighten us. If anything, his actions seem to have made him quite the celebrity.

  6. Dara says:

    1) I was just using the same paintbrush you were using on liberals.
    2) Here’s an indication of how far back US government interest in Wikileaks goes:,_18_Mar_2008
    There’s a section in there discussing whether it’s free speech or criminal.
    There’s a bit of info on present activities here including a threat from a Pentagon spokesman:
    The threat itself:
    “If doing the right thing isn’t good enough for them, we will figure out what alternatives we have to compel them to do the right thing,” Pentagon spokesman Geoff Morrell said last week.
    Which ties pretty nicely into the original topic.

  7. 8bEbgcBBi says:

    What am I to make of the case where a kid in the UK is banned from entering the US because he called Obama a not-very-nice name?
    Since we’re switching topics and all but remaining in the free speech zone.

  8. Bruce Rheinstein says:

    1) Banning speech (including symbolic speech) because it is offensive is not the same as objecting to publishing the names of hundreds of informants who will then be targeted by the Taliban. And, unlike for example Stephen Boisson , Mr. Assange is free to express his personal beliefs.
    2) A spokesman saying that, “If doing the right thing isn’t good enough for them, we will figure out what alternatives we have to compel them to do the right thing” does not constitute “hounding.” Do you have any examples of him actually being hounded?

  9. Dara says:

    8b: It’s as absolutely ridiculous as US politics. Even as ridiculous as Rosie in Delaware.
    Bruce, both examples of speech endanger people in Afghanistan. One incites general violence towards an identifiable group (Americans, often in uniform). The other incites violence against individual Afghans.
    I don’t really know how having the pentagon looking for an opportunity to end your career for a few years would feel, but I think that it would qualify as hounding.
    Granted, they’ve been ineffective so far, but I wouldn’t expect them to stick their neck out on this until they were certain of a quick resolution.

  10. Bruce says:

    The standard “incites general violence towards an identifiable group” is a broad one, especially as applied in the Koran case. The preacher is not advocating violence, rather those who oppose his symbolic speech are expected to engage in violence as a result of his speech. In essence the lesson is that violence pays if you want to avoid criticism.
    The Wikileaks matter troubles me because it recklessly, and needlessly, places Afghan informers lives in danger by providing what amounts to a hit list to the Taliban. Remove that element and it is little different from what the NYT and Washington Post do on a regular basis, sometimes to the detriment of ongoing anti-terrorist efforts.
    Even given the notoriously thin skin of the current administration, it’s difficult to believe that someone would be banned from the U.S. for telling the President he’s a “prick.” And how often do you actually see newspapers squeamishly spelling prick as “p***k?”

  11. Si Vis Pacem says:

    Gee Darla,
    How’s that CO2 “global warming” workin’ out for ya gal? Went form “man-made global warming” to “anthropogenic climate change” to mere “global climate disruption” when they figured-out that humans account for immeasurably less than the margin of error. As a sanitation “engineer” I’m sure you could run the numbers yerself, old buddy.
    As mentioned above, it wasn’t so much “free speech” as a combination of FBI visits and the very real threat of death fatwas. A cartoonist in Seattle, for example:
    That is why the FBI showed-up. It isn’t funny. So tolerant. So merciful. So effing stone-age.

  12. Dara says:

    Ran, lol.
    “Focusing on nowhere, investigating miles…”
    I hear you’re working for the only person who thinks you’re worth employing after everyone else passed and called it a recession.
    Unfortunately, I have too many people who want me to work for them to have the time to run the numbers pro bono.
    I’d be willing to discuss a contract, but I get paid up front for rust belt clients. Bad credit and all. Also, I think you’d be one of those clients who only accepts a foregone conclusion, and I’m used to doing actual analysis, like the time I helped you shred your water vapour argument. Funny that you still posted that picture of energy flux out of the atmosphere on your blog as if it was relevant to energy being reflected the other way.
    But you can go ahead and call me a girl if it makes you feel better about your life. Hey, at least we had a nice warm summer.
    Do me a favour though, it’s an easy calculation even for a guy with a dim recollection of some geology courses.
    Can you come up with the energy involved in the massive snowstorms of last year when you lift that much water(n.b. snow is made of water) from sea level to where it ended up? To keep it simple, you can ignore the height of snow accumulation in your figures, I wouldn’t want you to have to deal with too many integrals.
    I’m sure you’ve got some spare time.
    Always great to hear from you, sweetie.
    “…I’m a seeker, I’m a really desperate man.”

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