Is Free Speech Absolute? Where Do We Draw The Line?

Eleven days. Three troubled extremists. Three hate-fueled killings.

It was enough to prompt U.S. Attorney General Eric Holder this week to propose new hate crime laws that would, he said, "not tolerate murder, or the threat of violence, masquerading as political activism."

But the recent fatal attacks on an abortion doctor, an Army recruiter and a guard at the nation's Holocaust Museum have also launched an intense national debate about what the spate of targeted killings mean.

One signal question: Do others — from Internet and talk-radio hate-mongers to right- and left-wing pundits and politicians who dabble in incendiary speech — bear some responsibility for the killings?

No matter where one's free speech and political beliefs may lie, the killings — allegedly carried out by an anti-abortion, anti-government zealot, an anti-military Muslim convert and a virulent anti-Semite — have provided a sobering reminder of what lurks in the nation's darker corners.

"We've seen in the last few weeks some pretty shocking violence in the United States," says political historian Donald Critchlow.

But what, or whether, anything should be done about the extremist rants and general threats emanating from those corners remains, as always, a stubborn constitutional free speech question.

And it raises another one the nation has long wrestled with: Would enforced silence of the most abhorrent speech prove a more dangerous enemy of the good?

A Climate Conducive To Violence

Brett Barnett is the author of Untangling the Web of Hate, a book about online hate sites and whether they are worthy of First Amendment protections.

"My conclusions then were, though the speech on hate sites may be repugnant, I found nothing unconstitutional," says Barnett, an assistant professor of communications at Slippery Rock University.

"But since I've written the book, rhetoric on the hate sites has changed drastically," he says. "The conclusions I drew four years ago may be different now."

The election of Barack Obama, the nation's first black president, has prompted an upswing in white supremacist activity online, according to a new report by the Leadership Conference on Civil Rights Education Fund.

The bad economy, anxiety over immigration, widening political polarization and a three-decade trend of growing mistrust of government have also contributed to a climate that is more conducive to extremist groups, says Critchlow, a professor at St. Louis University and author, most recently, of The Conservative Ascendancy.

"The distrust of the government has created a very unhealthy political climate," he says, "and we are seeing a political polarization where opponents are denouncing each other in deeply personal and moralistic terms."

"This is on top of a high moralism found on the extreme left and right that allows for individuals to take the law into their own hands to fulfill what they believe are 'God's purposes,' " Critchlow says.

Experts who track hate groups say a controversial April 7 Department of Homeland Security memo, which said the current economic and political climate was fueling a resurgence of right-wing extremism, including among far-right anti-abortionists and anti-Semites, accurately described general conditions.

But the memo stumbled by providing "conjectured conditions" about what might lead to violence, Critchlow says. DHS chief Janet Napolitano apologized to veterans' groups after conservatives reacted angrily to the identification of military veterans as vulnerable to extremist recruiting.

Networked Hate

Though major hate groups like the Ku Klux Klan no longer have the boots-on-the-ground organizations they once did, extremists have been mastering the art of online organizing.

The Leadership Conference report, which tracked activity over two decades, said social networking sites like MySpace and Facebook are being used by groups to bring together splintered and far-flung members.

Barnett says hate-site trackers estimate that there are more than 900 such sites now, including the neo-Nazi Stormfront, which launched in 1995 and is recognized as the first major hate site.

"The Internet has really given voice to groups that we thought were once dying," he says.

But some trackers are puzzling over whether the Internet, with its ease of communication and duplicative nature, may make hate movements seem larger than they actually are.

Free Speech In Peril?

Today's conditions mark a serious test for free speech, but the test is not unprecedented, says Monroe Freedman, a Hofstra University law professor.

Recalling the "red scare" and McCarthyism of the 1950s, Freedman warns that the pendulum can swing too far in the other direction. He remembers two brilliant scholars, twin brothers, who were a year behind him at Harvard Law School. David and Jonathan Lubell were pressured by Harvard to give up their top positions at the Law School Record and had to fight efforts to have them expelled.

Their offense? Called to appear before the House Un-American Activities Committee, they cited their constitutional right to free speech and due process, and refused to answer questions about their political activism.

"There's a lot of scary stuff going on out there now, no question about it," Freedman says, but he adds that he is suspicious about "mythical, nostalgic thinking" by those who would suggest that the climate is worse now than it's ever been.

"The bottom line is that we've seen it before," says Freedman, who served as the first executive of the U.S. Holocaust Memorial Council, which laid the groundwork for the museum.

Freedman and his Hofstra law school colleague Eric Freedman, no relation, co-edited the book Group Defamation and Freedom of Speech: The Relationship Between Language and Violence.

Speech can provoke violence, Eric Freedman says. But his co-editor says it is difficult, if not impossible, to draw a connection between provocative speech and action by the likes of James von Brunn, who is charged with killing the Holocaust Museum security guard.

Barnett puts it this way: "It could be argued that right-wing talk radio stokes some of these fires. But the fires were already burning."

The 'True Threats Test' Of Speech

A 2003 U.S. Supreme Court decision addressed the issue of where the line of constitutionally accepted free speech should be drawn.

Then-Justice Sandra Day O'Connor's opinion in the case defined "true threats" as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." The decision notes that the threat does not have to be acted on to fall under the definition.

Lower courts have not applied the standard uniformly, but Barnett says the true threats standard would naturally apply as a test of the constitutionality of extreme speech on the Internet.

But the professors Freedman both caution against pushing back too vigorously on any speech that doesn't rise to the level of "clear and present danger."

The clear and present danger standard dates to a World War I-era Supreme Court decision that limited the ability of government to regulate speech unless the words "are used in such circumstances to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent."

It has been interpreted as a substitute for what was known as the "bad tendency" judicial test adopted by the court in the early 1900s, and strongly opposed by free speech advocates.

Under the bad tendency standard, Eric Freedman says, someone who says, for example, that he believes Judaism is the equivalent of astrology is someone who will kill Jews.

"Any attempt at repression will, as a practical matter, make things worse," he says. "We are taking a risk, a calculated risk, that repression would lead to far worse outcomes."

"Nothing is going to stop people who are insane from doing insane things," he says.

Monroe Freedman says the best antidote to hate speech is criticism, boycotts and "good speech."

"I just have to stick with my civil libertarian position, in part because I don't want any government official, including judges, deciding which hate speech qualifies for suppression short of a clear and present danger," he says.

As ugly as abhorrent speech is, its suppression would, the Freedmans argue, certainly be the enemy of the good.