Brison discusses free speech limits

By Sasha Dudding

Published on Tuesday, January 17, 2012

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Americans often think of free speech as the most important right granted in the Constitution, but it is no more fundamental than any other right, and, thus Americans do not appropriately address the consequences of hate speech, philosophy professor Susan Brison said in a lecture at the Haldeman Center on Tuesday.

“Free speech is not a special right,” Brison said. “There is no sound philosophical basis for giving such a right a priority when it comes in conflict with other values, such as the right to equality.”

When Brison first came to Dartmouth in 1985, she “arrived on a campus that was rife with racist hate speech,” she said. Martin Luther King, Jr. Day did not become an official holiday in New Hampshire until fifteen years later, when New Hampshire became the last state in the nation to name a holiday after him in 1999.

Around this time, Brison began her research on hate speech. Brison found the extent to which American courts and legal theorists protect hate speech “striking,” she said.

“It seemed to me that the First Amendment was being adhered to unthinkingly,” she said. “No other country has had anything like it.”

Other countries that protect free speech as a value do not protect hate speech, a fact that is “disconcerting rather than cause for celebration,” Brison said.

“In the U.S., the First Amendment is so central to our self-conception that it is taken as a defining feature of our national identity,” she said.

Other countries do not view free speech in the same way we do, according to Brison. France and Germany instituted laws prohibiting Holocaust denial and included certain restrictions on discrimination, while South Africa prohibited hate speech after the Apartheid, she said.

When these laws were first created, the American scholars helping to draft them had a “missionary zeal,” she said. However, other countries were resistant to adopting what she referred to as American “free speech absolutism.”

Brison attributed this to the differing histories of individual nations. While European nations were faced with the immediate history of the Holocaust and South Africa with apartheid, the framers of the American Constitution were concerned with preserving as much personal liberty as possible, according to Brison.

This approach has held over time but should be reconsidered, she said.

“There are ample grounds for adopting free speech skepticism,” she said. “To hold that there is a right to free speech is not, however, to hold that it is absolute.”

Even in America, free speech law is “a patchwork of exceptions” such as restrictions against libel, perjury and “crying fire in a crowded theater,” all of which can cause public harm, according to Brison.

She said that excluding hate speech from these restrictions is inconsistent.

Due to the American concern for free speech rights above others, it is hard to restrict it even when it hurts others, Brison said.

“Great wrongs have been committed in its name,” she said.

The broad nature of speech and expression makes it difficult to pass laws to govern free speech, as does the fact that it is in a “twilight zone between thought and action,” she said.

Still, these difficulties should not cause inaction, and although the First Amendment is first in the Bill of Rights, that does not mean it is “paramount” to the other rights, she said.

Audience members said that Brison’s speech challenged their beliefs.

“I thought it raised some really interesting ideas I hadn’t considered,” Mike McDavid ’15 said. “It considered the First Amendment from a viewpoint we rarely consider it from.”

Philosophy professor Sam Levey agreed and said he enjoyed the “criticism of absolutism.”

Sam Gardener ’15 desired more explanation about “what it would tangibly mean” to change First Amendment law in America.

Brison acknowledges that she has the “luxury” of being a philosopher without formulating exact solutions, she said.

“It’s not obvious how conflicts among these various rights are to be resolved,” she said.

However, an inquiry into popular attitudes toward free speech is the right place to start, she said.

“More thinking needs to be done about why people think speech is so special,” Brison said in an interview with The Dartmouth. “What interests me are the philosophical issues brought up by free speech.”

Brison said she is more interested in the moral questions brought up by the topic than specific policy recommendations and does not think hate speech codes are a solution.

Although private institutions such as colleges can have them, these codes have often created “free speech martyrs” of the students who went against them, she said.

“I don’t think hate speech codes are a good thing,” she said. “Dartmouth has never had a hate speech code, and I don’t think it should.”

The decision to not have a code should be seen as a matter of institutional policy, not as something mandated by the First Amendment, she said.

Brison said she plans to continue her search for an explanation to why so many people accept free speech as a right above all others and to find solutions.

The talk, entitled “Hate Speech and American Exceptionalism,” was part of the ongoing celebrations of Martin Luther King, Jr. Day as well as the Dartmouth Centers Forum program “Words and Their Consequences.” It was co-hosted by the Leslie Center for the Humanities.