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For democracies, free speech vs. hate speech is a delicate balance

Anti-Islam demonstrator faces counter demonstrators outside of ICC Phoenix mosque (Luqman Patino)

By Susan Bassal –

Over the past few years, the United States has gone through numerous contentious and transformative moments for minority groups. As a result, protests, demonstrations and rallies have traversed the country and have highlighted an area of increasing debate, the difference between hate speech and free speech. In turn, this has emphasized the ways in which communities attempt to balance respect for freedom of speech with a desire to limit speech that seemingly perpetuates hate.

One day before the nationally covered, Phoenix “Draw Mohammed” cartoon contest and rally was to take place, Azra Hussain, co-founder and president of the Islamic Speakers Bureau of Arizona, reached out to her interfaith community and to Rev. Erin Tamayo at the Arizona Faith Network, suggesting, “I think our best response is one of love and peace and I think we should wait a few days and respond in a beautiful manner.”

The May rally, outside the Islamic Community Center of Phoenix, drew about 200 armed protestors. Some wore T-shirts with profane messages and held signs denouncing Islam. The rally’s organizer, Jon Ritzheimer, wrote on a Facebook page for the event, “People are also encouraged to utilize there (sic) second amendment right at this event just in case our first amendment comes under the much anticipated attack.” The protestors were met with an equivalent number of counter protestors who came out in support of the Muslim community.

National attention driven by coverage by major news organizations spurred numerous conversations on hate speech and constitutional protection of free speech.

The fact that the First Amendment protects establishment and practice of religion, and so protects the speech of those who may express disagreement with those practices, creates a quandary. To deny one would seemingly deny the other.

A previous “Draw Muhammad” event organized by anti-Muslim advocate Pamela Geller in Garland, Texas, that resulted in an attempted attack by two men who were shot and killed by police, added to colorful debates surrounding the peaceful and appropriate response to events that could potentially incite angry responses. The event was even criticized by the New York Times editorial board in their May 6 editorial titled “Free Speech vs. Hate Speech.”

While the line is somewhat clear about what speech does not have First Amendment protection, including true threats, child pornography, obscenity, libel and “fighting words,” things can get a little more complicated when dealing with “hate speech.”

James Weinstein, a law professor at Arizona State University’s Sandra Day O’Connor College of Law, and co-editor of Extreme Speech and Democracy, explained it this way, “You can use the worst epithets, there’s a constitutional right to use those words as part of public discourse. Once you start focusing those words on (specific) people, then it becomes fighting words…an invitation to a brawl, not a public discourse, it’s sometimes hard to draw.” Weinstein noted that public forums, including streets, parks, letters to the editors and media are protected places for public discourse.

As recently as October, Ritzheimer organized a “Global Rally for Humanity” campaign under the pretense that “Humanity is attacked daily by radical Islam.” Like the May event in Phoenix, the rallies were planned to take place at mosques across the country and world. In response, many Muslim communities across the nation called for their communities to avoid the protests or organize counter protests. In Phoenix, Hussain said that the community was urged to ignore the protest and write op-eds in response to the hateful rhetoric.

According to Imam Zaid Shakir, Muslim American scholar, jurist, author and co-founder of Zaytuna College, “…we need to understand that reciprocating hateful speech in kind only encourages more belligerence on the part of the offending party. Hence, Muslims are instructed to respond to vile speech and actions ‘with what is better.’ This wise course of action, we are told, is what changes hearts.”

That sentiment is what Hussain hoped her rally in response to the “Draw Muhammad” event would exemplify. Hussain’s “Love is Stronger than Hate” rally was supported by the interfaith community, the Muslim community and many other organizations. According to Hussain, over 1,000 people attended the event and instead of bringing guns, they brought flowers.

When asked about his thoughts on the response to the rally by the local community in Phoenix, Congressman André Carson of Indiana, the second Muslim elected to Congress, said, “I think the Muslim Community handled it phenomenally and in a strategic manner…We have to demonstrate the kind of civility, compassion, and understanding that Islam teaches us.”

Some legal scholars suggest the same. In order for potentially morally repugnant or bigoted speech to be addressed, it is essential for it be permitted and disproved, not suppressed. In September of this year, Weinstein wrote in the CQ Researcher magazine: “In a free Democratic Society, bigoted ideas should be refuted, not censored.”

Of course, public discourse is not the only avenue. If people are not publicly responding,  Weinstein recommends that attempts be made to prevent hate speech privately, through conversation and among friends and family. “We can insist to people privately, I’m not going to put up with that kind of speech, or we can say that to our children, and to our friends.”

This conversation is not new, nor is it limited to communities facing discrimination. It is of foundational importance for the nation’s citizens. Oliver Wendell Holmes, one of the most respected legal minds and scholars of the First Amendment, wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

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