When is Action, Speech and Speech, Action?
My views on speech are very heavily influence by the approach I saw adopted, firstly during the time prior to the loosening of speech in local politics, and then when I started debating, on the issue of hate speech and in particular the approach (formerly, see current qualifier below) adopted by the US (First Amendment) and the EU (Convention on Civil and Political Rights).
But more recently, when I defended a classmate for his personal expressions of what many considered racist. And again during the whole racist-bloggers incident. Throughout it all, the constant question that I kept putting forth was this, given that their speech neither advocated nor incited violence, why should unpopular speech be criminalised? Yes, I am well aware of the Sedition Act and yes, I am very well aware that our constitutional right to free speech may as well as be the Common Law residuary right to speech. But that's really besides the point. Just because an action is criminalised does not make it wrong per se, here mandatory seat-belt laws come to mind.
And it is in that particular framework that I really want to talk about the freedom of speech and expression. But before I go on, just a number of links that I think help provide some bits of interesting recent developments. Firstly, a Professor at Northern Kentucy University was so offended at a school-sanctioned display by a pro-life group which had erected hundreds of crosses, that during a break she had asked: "if any students wanted to participate in practicing their freedom of speech in destroying the very offensive right to life, anti-abortion display in the central plaza." And they did including the Professor.
Oddly for a literature professor, she seemed not to have understood what is meant by the freedom of speech.
But what about cross buring then? Once upon a time, a burning cross on your lawn was almost a prelude to a lynching unless you got out of town. Today, it is a symbol of racial hatred and intolerance, something that persists even till today, sometimes to deadly effect. Here it is worth comparing two similar (not identical mind you because of the content of the statute. I promise to go into more of it later) cases. The first is R.A.V. v. St. Paul, which held that a statute criminalising the display of certain symbols with the intent of arousing anger (including burning crosses) was non-constitutional. That was then. Now, we have, Virginia v. Black, which decided that a burning cross is no longer protected speech. I don't think I want to go into the arguments of this case, partly because of time constrains and partly because this Slate article on this issue is just a lot of fun to read.
What I do want to bring up is the so-called "Nelson Mandela argument". It goes something like this: If the law would put Nelson Mandela into jail, it shouldn't be law. Far be it for me to say that anything Mr Mandela did is equivalent to what the KKK did to make a buring cross a symbol of fear (although I don't think Mr Mandela ever condemned the ANC for their actions back when they were still engaging in terrorist activities, in fact I think he thought they were justified), nevertheless, one need not go so far as to think that the Sedition Act could have been used against him as could, for example, the new laws against "hate-preachers" in Britain. Because laws can and have always been abused by those in power.
But the kicker is this. In the RAV case, the justices pointed out that the city's ordinance had been used previously during the Jim Crow era, AGAINST civil rights activists and groups. This is where I think the distinctions in the statutes make quite a big conceptual difference. In the RAV case, the statute basically banned a bunch of displays other than buring crosses e.g. Nazi-swastika. In the Black case, the focus was almost entirely and exclusively on cross burning (which to me violates one of the fundamental tenats of the law, that it be general) and with a qualifer clause that it had to have the intend to intimidate.
However, this leads to the very obvious question. If the only way this statute can pass constitutional muster is if the very act of cross buring is a threat of bodily harm, then the intend to intimidate is AUTOMATICALLY established by the very act itself and therein lies the circularity of the argument (or at the very minimum, the eradication of a presumption of innocence). I suppose it might be possible to burn a cross without having an intent to intimidate......but that's not the intention of this particular (targetted) law.
Which brings me by a very circular route back to the point I was intending to make. Most of my readers would agree that the NKU Professor was wrong in the action she advocated and partook of. Similarly, I believe some (maybe even most) of my readers would probably accept the US Supreme Court decision that buring crosses transcend unpopular (even obnoxious) political speech to actual threat/intent to intimidate. So I put this question to you. What if the crosses that had been planted was by a militant pro-lifer group i.e. the sort that go beyond picketing to obstructing or intimidating the doctors, nurses and patients? What if they had been buring crosses by the local chapter of the KKK?
I know that not everyone will accept the argument but I hope to be able to get across why I don't think that societal's approval or disapproval of a particular viewpoint should ever be subject to criminalisation.