Democratic Sen. Ed Markey of Massachusetts has introduced legislation calling for the government to investigate "hate speech" on broadcast, cable, and Internet outlets — a bill that is raising concerns from First Amendment advocates and constitutional experts.
Harvard law professor Alan Dershowitz called the enactment of hate speech laws a "dangerous trend."
"I have never in my life seen a successful effort to define hate speech that does not interfere with rights of free expression," Dershowitz told Newsmax. "It is a worthy effort, but my prediction is that it either leads to the conclusion government cannot do it, or that they will do it and that will infringe on First Amendment rights.
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"Governments are trying to also make changes to hate speech law and debating the issue in Canada, at the United Nations, and even right now in Israel. It is a worldwide trend, but it is a really dangerous trend," Dershowitz said.
Announcing the Hate Crime Reporting Act last month, Markey cited three killings at Jewish centers in Kansas by a white supremacist in April, and said in a statement it is "critical to ensure the Internet, television, and radio are not encouraging hate crimes or hate speech that is not outside the protection of the First Amendment."
Markey's bill directs the National Telecommunications and Information Administration (NTIA) to update "The Role of Telecommunications in Hate Crimes" report, which was released in 1993 after then-Rep. Markey used the Telecommunications Authorization Act to mandate the study.
The NTIA will have a year to "examine the role of telecommunications in encouraging hate crimes" and then would deliver that review to the Senate Judiciary and Commerce, Science, and Transportation Committees, and the House Energy and Commerce Committee.
In January, Democratic Rep. Hakeem Jeffries
of New York introduced a similar measure — HR 3878 — that also would "mandate a comprehensive analysis of criminal and hateful activity on the Internet that occurs outside of the zone of the First Amendment protection."
Ken Paulson, president and CEO of the First Amendment Center, told Newsmax that Markey's bill "strikes me not only as misguided, but also probably a waste of time.
"Studying the prevalence of hate speech on the web or in any other media is a perfectly legitimate examination for academics who want to explore that issue. It is an entirely different matter when government seeks to do that because inevitably they will act on the report," Paulson said.
Paulson asserted that even if the report requested by Markey comes back finding a prevalence of hate speech, the government cannot do anything about it as a consequence of First Amendment protections of even the most vile speech.
"There always is the concern when Congress studies an issue because there exists that temptation to act on the results," Paulson said. "If someone posts on the Internet that we should go string someone up and they name that person, and encourage action, that is a different matter. But hateful speech is absolutely protected by the First Amendment."
That inherent conflict between government attempts to monitor speech on the Internet and in other media and the First Amendment was not lost on the authors of the initial NTIA report.
In the 1993 report, the NTIA stated its concurrence with those who contend the best response to hate speech is more speech, and not government censorship or regulation.
The report noted that the "electronic media can be used to disseminate messages of bigotry and prejudice; they can also be a powerful tool for promoting tolerance, equality, and harmony. The private sector and government should intensify their efforts to make strong statements supporting tolerance and abhorring bigotry. Such action does not involve sanctioning speech or punishing thought."
The NTIA further stated that the agency "recognizes the power of telecommunications in disseminating voice, video, or textual messages to large audiences. However, the fact that telecommunications technology can extend and amplify speech does not change the governing First Amendment analysis."
Conservatives see in both bills a thinly veiled effort to silence or censor conservative voices.
"What the congressional Democrats are targeting isn't virtual Ku Klux Klan rallies. The left slaps the 'hate speech' label on just about anything with which it disagrees. They aim to shut down conservative voices," asserted The Washington Times
Many liberal advocacy groups have expressed their support for the hate crimes bills. Alex Nogales, president and CEO of the National Hispanic Media Coalition
, said an updated report "is long overdue and desperately needed given the incredible evolution of our communications systems over the past 21 years, as well as the ever-increasing numbers of hate crimes targeting Latinos and others."
The NHMC has been lobbying for an update of the 1993 report for several years. In January 2009, the NHMC filed a Petition for Inquiry
at the Federal Communications Commission, asking it to examine hate speech in media, and also sent a letter to the NTIA, asking it to update its 1993 report.
The group's petition was backed up several months later by 40 civil rights and public interest groups
that requested the FCC take action.
However, some liberals oppose Markey's and Jeffries' bills on First Amendment grounds.
Liberal commentator Alan Colmes recently wrote in The Huffington Post
that "no matter how many heinous crimes are committed by deplorable white supremacists, it's inane to make the case that it's because something someone said on the radio. It takes more than a ranting talk show host to instill the kind of hate in someone that spurs this kind of depraved behavior."
The introduction of the bills comes even as hate crimes have been on the decrease.
According to the FBI's 2012 Hate Crimes Statistics,
there were 5,796 hate crime incidents reported in 2012, down from 6,222 incidents in 2011.
FBI statistics show an even steeper decline in the years since the NTIA report was issued in 1993. In 1996 — the first year the FBI began comprehensively reporting hate crime figures — 8,759 bias-motivated criminal incidents were reported.
While Dershowitz believes there is greater freedom of speech today, he noted people tend to be more easily offended and more likely to call for a solution for that offense, which can set a dangerous precedent.
"There is an '-ism' for everything — racism, sexism, fatism — and once you give in to one -ism, every other -ism comes back and asks to be treated the same, too. It can be dangerous to satisfy people's sensitivities," he said, adding that hurtful words used in political and social debates are "far different than the incitement that led to massacres in Rwanda.
"In America, the pendulum swings far too widely in reaction to these events. The proper response to hate speech is to answer that speech more often, not to censor it. The best solution and answer to hate speech always has been to keep the marketplace of ideas open."
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