Should SOME Types of Speech Be Regulated?

I’m going to have a bit of fun today and share with y’all a “food for thought” response I gave to my students in one of my online classes after reading through their responses to an assignment about “free speech”. I’m particularly busy this semester teaching thirteen classes, which has made it more difficult for me to write new content as often. However, today’s teaching is something I think y’all would enjoy being privy to, so I get to use my class time to also give y’all new content :D.

My students were supposed to respond to a quote from their book that says that most Americans, in the abstract, are a fan of free speech, but when it comes to the practical application of free speech, we’re almost all ok with suppressing some group’s freedom of speech, usually if we disagree with them.

So, I decided to play devil’s advocate and respond with this below:

“I thoroughly enjoyed your discussions on free speech and our tolerance or lack thereof for it! 

I wanted to give some feedback and push y’all a bit on this topic since it seems that many of you agreed that SOME types of speech should be regulated. I want to remind y’all that the First Amendment, and Constitution in general, does NOT protect anyone from private silencing of speech. In other words, a private business can regulate your speech, or an individual can tell you to “shut up”. The only thing the First Amendment does is prevent the FEDERAL government from ever silencing or criminalizing speech of almost any kind. At this point, even groups we may deem evil or distasteful (i.e. Nazis) are still free to express their opinions without fear of government retrobution (that is not to say that societal or economic retrobution won’t occur).

But, let’s imagine that we DO want to allow govenrment to start regulating some kinds of speech… “hate” speech seemed to be the preferred form of speech in need of federal regulation. 

If we were to eliminate the First Amendment, change the enumerated powers to allow for federal regulation of speech, and allow certain kinds of speech to be criminalized, who would be making the decision on which speech to criminalize? How would we avoid that immense amount of power, the power to control and regulate speech, from being arbitrary and oppressive? When governments are given the power to regulate speech, most governments–or historically, all governments—have used that power to coerce and control the citizenry, and eliminate any who would challenge their power and authority. If government gets to decide what is “hate” or “criminal” speech, they get to decide the discourse of everything in society. 

Offensive speech or “hate” speech is very subjective. What one may find offensive another may not. What one may have meant to be offensive, another may not have. So, how do we apply laws regulating speech to every day crime fighting? What’s the punishment for saying something that someone deems offensive? How do you regulate that? Do people call the police on someone for something that person said? Do the police then start arresting people for saying something someone else deemed offensive? If you yell at your sister and say offensive, cruel and, according to her, “hateful” things, is she, in a fit of anger, able to call the police on you? WHO decides what’s offensive enough to require a criminal prosecution? Do people pay a fine, go to prison etc for these crimes? Everyone says something they regret at some point in their lives, everyone...how many humans are free of the guilt of saying something mean or offensive to another? What if the mercy for human stupidity and error built in the system now, was eliminated? Further, how would any criminal trial work without potentially offending someone? Are criminal trials, critiques of government etc not offensive to someone? What if government starting making laws saying anything negative about government was “hate” speech or offensive and worthy of prison time? 

The “idea” of criminalizing certain kinds of speech we today deem offensive or rude or cruel is nice in theory, but the practical application of it gets much more messy. Just want to play devil’s advocate with you here to force you to really think through all the implications and assumptions implicit in criminalizing speech. Think about this. If y’all have thoughts, I’m happy to keep discussing… respond here!”

Hope y’all enjoyed this and hope it also pushes you to think through your own assumptions and the implications in your own political beliefs.

The Liberty Belle