Hate speech, free speech

29 Feb

When I read the article “Anti-gay ID badges at California school spark anger,” my first reaction was: maybe I don’t understand hate speech.

Here’s a quick summary of the controversy:

A handful of students wearing anti-gay symbols on their school ID badges at Shadow Hills High School in Indio have sparked anger and worry among students and staff on campus, but administrators said they cannot ask the students to remove the symbols in the interest of protecting freedom of speech rights.

Hate speech is broadly understood to comprise any verbal, written, pictorial or gestured communication that “may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group.”

Legally, hate speech has to clear a few more hurdles. According to past Supreme Court rulings on the hate speech exception to protected free speech:

There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace (Justice Frank Murphy, 1942).

The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey (Justice Antonin Scalia, 1992).

So while I no longer think the issue is my understanding of hate speech, I remain confused. Here are the badges some Shadow Hills students have begun wearing:

Anti-gay symbol

And I ask: how is this not hate speech, by both lay and legal definitions? What better “fighting” word than the no symbol, which at its most basic means: you are not permitted, and can also mean: I am against you. Whether the statement is that gay sexuality and people do not exist, or that gay people and sexuality are wrong, these badges “by their very utterances inflict injury” in the form of dismissal and condemnation of fellow human beings, on the basis of identity.

A simple thought exercise might help illuminate the issue: what if the badges disallowed or disavowed whiteness? women? physical disability? heterosexuality? Christianity? Old people? What does it mean to say “no” to or “I am anti” a group of people? It means ceasing to see them as people, and objectifying them as a problem or issue to be corrected or erased. And historically, we know where that has led.

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