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In recent weeks two law professors, Thane Rosenbaum of Fordham University[1] and Garrett Epps of the University of Baltimore[2] have written on freedom of speech[3] in two popular news sources, The Daily Beast[4] and The Atlantic[5], respectively. Both articles have some merit, arguing for opposing sides, but a rational skeptic must look at the claims supporting (or not supporting) all opinions.  I will provide you my opinion as a rational skeptic, to demonstrate how an analysis of social issues can be conducted and then form an opinion with this viewpoint. My opinion may not be the same as the reader’s, but it will be based on evidence and considerations from multiple sources, while conducting a logical analysis of the issue and proposed arguments.

To start with, the question posed by Professor Rosenbaum: should the United States enact hate speech laws that limit the freedom of speech?[6] Mr. Rosenbaum suggests that the only reason that hate speech is not censored and indicted in the United States is because speech causes no actual harm; as compared to hate crimes involving assaults (or worse), which cause obvious physical harm. But, says Rosenbaum, new neurological evidence (which he never specifically cites) suggests that emotional pain can be equally as painful as physical pain, therefore we should limit free speech on “indecent” language.

Rosenbaum’s position is simply flawed. To start with, his suggestion that the only reason we do not limit hate speech is because we believe it does not cause pain, is not necessarily true, as it is not supported by any evidence. Professor Rosenbaum simply makes this statement, but that does not mean the foundation of the law is based on any assumed difference between emotional and physical pain. If this was the clear-cut reason for separating hate speech from hate crimes, then a clear, specific legal precedent could be cited. He seems to only claim that since the case for limiting speech (for example, shouting fire in a crowded theater) is for the safety of the public, the emotional harm felt by people counts as well and these laws should therefore be enacted. But again, there is no specific statement saying that hate speech doesn’t meet the public harm because it does not cause physical harm. Instead he has no real foundation, which means this conclusion cannot stand.

The good professor follows by a personal jab at the justice system’s assumed reasoning of suggesting a difference between emotional and physical pain, saying their opinion is based on nursery rhymes. This is an ad hominem attack, a type of logical fallacy in which the person attacks the person or organization instead of attacking the merits of the argument. Again, not a good reason to agree with his position.

A final part of Rosenbaum’s argument suggests that by allowing hate speech to be protected, the perpetrator’s rights are upheld at the expense of the victim’s rights. Though on its face this seems very reasonable, it is not that simple. As the late Christopher Hitchens noted on this topic – by limiting another person’s right to speak his opinion, you limit your own right to listen to what they have to say[7][8]. Mr. Hitchens further demonstrated the appropriateness of this stance when he asked a Canadian convention crowd if a single one of them knows anyone they trust enough to decide what they do and do not have the right to listen to or read[9]. It may be worth noting that not one person was suggested by the crowd, possibly providing evidence of the complications to be encountered with such a drastic legal step.

Garrett Epps provides a counter to Rosenbaum’s article by suggesting that free speech should not be limited, but it does have cost[10]. In his conclusion, as may be told by the previous paragraph, I agree with Professor Epps, at least mostly. However, I found the particular arguments Epps makes of why free speech is harmful, and maybe that it could be reasonable to adopt the practices of many European democracies, somewhat wanting. To begin with, both Rosenbaum and Epps suggest that the wide-spread use of hate speech laws legitimizes them in some way, but only the premises an argument is based on can legitimize it. After that only if those premises are found to be both valid (appropriately logical) and sound (actually true) is the argument legitimate. This argument of consensus is in no way a proof of anything at all. As John Stuart Mills said in his book On Liberty:

            If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he         had the power, would be justified in silencing all mankind (14)[11].

Both authors also minimize what appear to be clear violations of persons to freely express their opinions in the face of such laws. For example, in France in 2012 Bob Dylan was charged with violating one of these laws for a comment made in a Rolling Stone interview he did[12]. During the interview Dylan was asked about similarities in American between the Civil War era and today. Dylan in remarking about the effect that race still has on American society today said:

            If you got a slave master or [Ku Klux] Klan in your blood, blacks can sense that. That       stuff lingers to this day. Just like Jews can sense Nazi blood and the Serbs can sense     Croatian blood.[13]

Dylan’s statement about Croatians has resulted in charges in France for inciting hate. This appears to be a misuse of the law, as Dylan’s statement in the article was not even derogatory, but simply his opinion of the effects of history on people today; which considering the context of the conversation there may or may not be a point of truth to. If these laws limiting free speech are to be truly considered, then the possible abuses of the spirit of the law must be part of the discussion.

From there Ebbs suggest that the reason the Europeans passed such laws was that men like Hitler demonstrated that democracy can allow such pernicious tyranny to gain influence, so therefore these laws are needed. This seems reasonable, except for the fact that Hitler did not continue democratic values once he came to the ranks through a more democratic process. Hitler instead silenced his critics and opposition[14], as is common in many totalitarian regimes, though quite uncommon in modern day democracies. Based on this evidence it is the suspending of democratic values, such as free speech, that is the actual point of concern. Indeed, as Jonathan Rauch (author and senior fellow at the Brookings Institution) has suggested it is the free debate of ideas that has abated the power that bigotry towards sexual orientation once present in the United States[15][16].

Ebbs also looks at how, historically, in the United States free speech did not engulf so many persons in its protections. These examples are accurate and as Professor Ebbs suggest people can be harassed when they are not a part of the majority. Yet, this in no way means that the best way to safeguard vulnerable citizens from oppression is to take away their right to dissent flagrantly boisterous opponents. In fact, Thomas Paine (American founding father and noted pamphleteer) suggest the opposite idea when he wrote in the closing lines of his Dissertation on First Principles of Government:

            An avidity to punish is always dangerous to liberty. It leads men to stretch, to        misinterpret, and to misapply even the best of laws. He that would make his own liberty            secure must guard even his enemy from oppression; for if he violates this duty he       establishes a precedent that will reach to himself.[17]

To end Ebbs concludes, fairly, that the reason we have free speech laws cannot be for a lack of any harm, but again I slightly disagree. Though the essential point of fighting with words vs. weapons is a fine message, many examples of sedition acts and imprisonment (or worse) have been demonstrated over the course of human history when free speech is limited[18][19]. Paine warns plainly that more harm may come to those who limit liberties (such as free speech) than is averted by the limitation of liberty itself. Paine is saying that, although it may cause more short-term harm to allow even derogatory speech, in the long run the greater harm of oppressive and tyrannical abuse of the law may be avoided.

For my part I agree with the Supreme Court that all other laws are based (to some degree) on the right to free speech[20]. Despite the laws in France, a comedian is currently making outlandish anti-Semitic jokes and statements, regardless of the fines and limitations[21]. To me this is evidence that suppression of certain view does not change those views or diminish their notoriety.  Only by defending arguments with understandable evidence and reason can we hope to diminish the influence of noxious opinions on obsequious adherents. Once more, in the words of Thomas Paine:

            … I have always strenuously supported the right of every man to his opinion, however      different that opinion may be to mine. He who denies to another this right, makes a slave            of himself to his present opinion, because he precludes himself the right to change it.

            The most formidable weapon against any error of every kind is reason. (v[22])[23]   

By using rational skepticism to inform my process of analysis I hope I have shown how an opinion on debatable issues can be determined. Note that even though I agreed with the conclusions of Garrett Epps, still I analyzed all his rationale for both truth and errors. For a rational skeptic, even our own opinions are not exempt from skeptical evaluation. In presenting my views on this topic I do not expect my opinion to be the same as all readers. My only goal is for the reader to come to see my position as a fair one, based on evidence and reason.

This is exceedingly important in matters of societal engagement and policy decisions, where you necessarily wish to have your opinion forced on others. Debate based on rational skepticism does not force any particular opinion (assuming it is not in contradiction to the evidence), but it may increase the probability of people being able to relate with one another, as they may be able to more clearly see differing arguments and opinions as reasonable. In this ways rational debate becomes a godsend of excessive proportions. By engaging in this method people may be allowed to come to some accordance on the world they all want to live in, without empowering demagogues and swindlers that prey on the discord and prejudices of society… and avoiding that should be good for everyone.   

~By Nicholas S.

[8] This is a paraphrase of his stance, not a direct quote

[11] Mills, J. S. (1859/2002). On liberty. Dover, Mineola, NY.

[14] Eley, G. (2003). Hitler’s silent majority? Conformity and resistance under the Third Reich (part 2). Michigan Quarterly Review, 42. Retrieved by: http://quod.lib.umich.edu/cgi/t/text/text-idx?cc=mqr;c=mqr;c=mqrarchive;idno=act2080.0042.319;rgn=main;view=text;xc=1;g=mqrg

[18] Zinn, H. (2005). A people’s history of the United States: 1492-present. Harper Perennial Modern Classics, New York, NY.

[19] Foner, E. (2009). Give me liberty: An American history: Volume 2 (ed. 2nd). Norton, New York, NY.

[22] Capitalizations removed from some words.

[23] Paine, T. (1794/2006). The Age of Reason. Barnes & Nobles, New York, NY.