Over the course of the 20th century, the United States built one of the most extensive legal protections for freedom of expression in the world, one that also protects speech that harms individuals and oppressed groups within society.
The debate regarding the limits of hate speech has intensified in the last few years, but the legal sphere is far behind in this discussion. Although the legal system sees defamation as a violation of free speech protections, hate speech is not considered a violation.
"Defamation is an issue for anyone who states something that can be construed as fact,” Caley Cook, assistant teaching professor in the department of communication, said. “I would be careful not to equate hate speech and misinformation — those are two different things. I would be really careful about construing those things, but I will say that [the] truth is always an absolute defense in defamation, and it is almost always a defense in other scenarios. If you can prove something, it's true; you can say whatever you want."
Basically, the legal system protects opinions so long as they can't be misconstrued as a statement of fact. Freedom of expression tends to allow hate speech as a legitimate manifestation of opinion at the expense of those harmed.
"You can't say ‘My belief is that John Smith is a murderer’ — I said my belief, so it's an opinion, it's not a fact, right?” Cook said. “That doesn't get you out of it. So in that way, the court really looks at ‘Did the person state some kind of false statement of fact?’ and that gets them in trouble. ‘I don't like that art,’ ‘that art is disgusting’ — those are the kinds of opinion statements that help us understand science, literature, poetry, visual art, [and are] the kinds of critique … that help us understand the world; those are protected speech."
The law then protects speech that does not harm individuals directly. Misinformation, for example, doesn't usually just impact an individual — it spreads a piece of false information far and wide, which is objectively wrong, but entirely legal.
"I think that's what makes it so hard for anyone to perceive what misinformation is doing in our online sphere, because who are you going to sue right now?” Cook said. “Has anyone been harmed? Yes, people have definitely been harmed by misinformation, but can those people … go point to the direct relationship between the statement and the harm? Probably not."
We are living in an era where unfounded opinions are spread and analyzed as if they are facts.
So, are all opinions valid? Should opinions that cause harm to individuals and oppressed communities be protected?
Individual freedom is a fundamental right and core value in a functional society — that much is true. However, we should not confuse individual freedom with the idea that you can do or say whatever you want.
In a perfect world, plain freedom would mean being able to say whatever you want, but in material reality, freedom materializes through concrete choices. In our imagination, we can do anything, and every desire is possible. However, this is not what the real world looks like.
In the real world, there is no exclusion between the ideas of freedom and determinism. If we have things like laws or norms, it is possible that through action, these limits can be expanded.
Material freedom only exists out of our subjectivity. For example, someone could technically affirm homophobia by saying that men and women were made for each other and that LGBTQIA+ couples should be illegal — because it’s their opinion. Or someone could even go as far as saying that a scientifically proven vaccine does not work, thereby ignoring its success in preventing deaths during a pandemic. These are examples of opinions that disregard their effect on the world and the people harmed.
In our world, freedom should require us to eliminate certain actions and behaviors — like hate speech — not as deprivation, but as a consequence of our freedom itself, because the truth is we don’t live in a world where you can actually say whatever you want without consequence.
The ideas of freedom and its limits are not mutually exclusive. Thus, if there are objective factors that limit human freedom, such as laws, norms, and social situations, these limits are expanded.
Doing and saying whatever you want — your opinions — seems like freedom, but it is only realized in a context where the real world does not matter. We do have freedom, but this comes with the caveat of making sure to also understand the consequences of our words and actions. The greater our knowledge about social norms and the world around us, the freer we are.
We should not accept all opinions because of the simple fact that there are opinions based on barbarism, violence, and prejudice. In other words, accepting these ideas also discriminates against those affected by them.
Reach writer Victor Simoes at email@example.com. Twitter: @victorhaysser
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