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Fighting words or free speech?

Hate speech in the spotlight as advocates debate need for laws


by: TRIBUNE PHOTO: CHRISTOPHER ONSTOTT - Defining hate speech may be more difficult than passing a law restricting it, yet most western democracies outside the U.S. have attempted 
to do both.Here’s what keeps Drew Blevins up at night: Somebody with $5,000 cash who wants to run ads on TriMet buses that are out-and-out hate speech.

Blevins is TriMet’s director of marketing, the guy who deals with the ads. During the past two months, he has accepted — because TriMet attorneys said he had to — two controversial ads that Blevins recognizes aren’t hate speech but are moving in that direction.

One ad asked for public support for Israel and the defeat of jihad and “savages.” The other, which was pro-Palestinian, headlined “Palestinian Loss of Land.”

Bus and train ads net cash-strapped TriMet $5.3 million each year. Blevins says that if an ad comes in that the agency feels drifts across the line from political statement to hate speech, his only option might be to refuse the ad and discontinue taking all paid advertising.

“We’re not able to be arbitrary,” Blevins says.

In August, Ellis Bradley discovered that somebody overnight had spray-painted swastikas and racial slurs on his North Mississippi Avenue food cart and on the Sons of Haiti Masonic Lodge next door.

If Bradley’s food cart or the Masonic Temple had been in Canada, France, Germany or just about any other western democracy, the people who spray-painted their messages, if caught, might face punishments much harsher than they could get for mere vandalism.

by: TRIBUNE PHOTO: CHRISTOPHER ONSTOTT  - Food cart operator Ellis Bradley has been thinking of a move from Portland since swastikas and racial slurs were spray painted on his cart in August.But not in the United States, where hate speech has not been outlawed, and especially not in Oregon, where freedom of speech has been established as a transcendent principle beyond what other states have been willing to protect.

Bradley, a 41-year-old black man who grew up in Northeast Portland but lives in Vancouver, Wash., says he would favor a law against hate speech.

“I wish there was a law so when you do something like that, especially when I have my child with me, there would be some kind of sanction, someone I can call and say, ‘Hey, look, this is wrong.’ “

More harm than good

In a courtroom at the downtown Portland Mark O. Hatfield Federal Courthouse last week, about 70 attorneys, judges, law professors, students, a mosque president and a rabbi spent an evening debating whether the United States should consider joining those other countries in outlawing hate speech.

The Classroom Law Project led discussions that included the Topeka, Kan., Westboro Baptist Church protests at the funerals of U.S. soldiers who served in Iraq, and church members’ placards proclaiming, among other things, that homosexuals are “beasts” and that God hates Jews.

The U.S. Supreme Court has ruled that the church members’ signs, a form of speech, are protected by the First Amendment.

“Innocence of the Muslims,” the anti-Islamic YouTube snippet that spurred Middle East riots and the possible storming of a U.S. consulate in Libya, was one topic of conversation.

A recent book, “The Harm In Hate Speech,” by New York University Law School professor Jeremy Waldron, served as a starting point for the discussion. Waldron told the Tribune last week that the United States should consider joining other democracies in recognizing the dangers of not legally confronting hate speech. We don’t, he says, because the people who make the laws are focused on legal principles, but fail to recognize the effect of hate speech on real people leading real lives when they feel their dignity as citizens is under attack.

“In Britain or France that would be quickly brought up (to a court),” Waldron says. “In the U.S. it is just allowed to fester away.”

Waldron would try to narrowly define hate speech in any legislation. Words that offend would not be enough, he says. They would have to attack fundamental dignity. And they couldn’t be simply hateful on a personal level, but would have to attack the dignity of an entire class of people such as blacks or gays.

The United Kingdom’s hate speech laws were enacted in the 1960s, Waldron says, when large numbers of East Indians and Pakistanis immigrated to England and Parliament was hoping to forestall violence that might start with words.

“The aim is not to suppress hate, the aim is to make sure people are not making trouble by stirring up hatred between communities,” he says.

But as far as Lewis & Clark Law School professor Steve Kanter is concerned, that’s backward thinking. Kanter is convinced that allowing free speech is a better way of heading off violent confrontations.

“It (free speech) provides a protective safety valve,” Kanter says. “I would rather somebody has hate thoughts and they be allowed to say them, but we say to them quite clearly that they can’t act on them.”

Kanter, who is Jewish, has had a personal confrontation with hate speech. He says a few years ago he led a successful neighborhood effort to get stop signs installed to slow traffic near his home. But one of those signs ended up ripped out of the ground, decorated with a swastika and thrown on Kanter’s front porch.

It didn’t change his mind, mostly, Kanter says, because he fears the potential consequence of a government with the power to limit speech more than he fears whoever left the stop sign on his porch.

“Every society that has seriously tried to control deleterious or hateful speech, at the end of the day, it has turned out to be counterproductive,” Kanter says. “It’s caused more harm than good.”

In Germany, a swastika on somebody’s porch can land its creator in jail. But Kanter is more focused on Germany from another time.

“One of the first things the Nazis did in Germany is restrict free speech,” he says, adding that those democracies with hate speech legislation “pay a big price for what they do.”

Among the limits on free expression in those countries: Muslims in France can’t wear burkas, and erecting a minaret in Switzerland is illegal. Meanwhile, Kanter says, radicals unable to vent their ideas publicly might be more likely to turn to sleeper cell terrorism in Europe and England.

Yelling ‘fire!’

Portland constitutional lawyer Charlie Hinkle is more blunt.

“You don’t have the right to have your dignity upheld by society,” he says. “Hurt feelings go with the territory. You can’t have a speech code that worries about insults, because that’s what 90 percent of our discourse is.”

Kathleen Saadat, manager for diversity and affirmative action in the Portland Bureau of Human Resources, says she’s not simply worried about dignity, but about the consequences of hate speech allowed to flourish. Yelling “fire!” in a crowded movie theater, she says, is not allowed because people could get trampled as a consequence.

“There is a continuum between when I yell ‘fire!’ in the theater and what happens afterward,” Saadat says. “Why is there no continuum seen between yelling ‘Ni——’ and watching Mulugeta Seraw be murdered?”

Seraw was an Ethiopian student beaten to death in Southeast Portland by white supremacists in 1988.

Saadat, who is black, says years ago she was walking alone downtown after an election night party at the Hilton hotel when she heard somebody yelling, “Hey you sp—,” at her. Turning, she saw a white man standing more than six feet tall.

“I thought I was going to be hurt or injured, I thought I might be killed,” Saadat says. “If you protect that speech — it is not neutral.”

Kanter says it is impossible to set narrow standards for hate speech legislation that will apply equally to everyone and won’t be abused. Saadat says the media is already practicing those abuses.

“If you turn on the TV, every time someone says ni—— it gets bleeped out. But if they say ‘bitch’ it doesn’t,” Saadat says. “If we’re going to have free speech, then you should also say ni——.”

Or, she says, both should be censored.

Hiding the symptoms

Clackamas County attorney Ed Trompke, who is writing a book about the Oregon Constitution and characterizes himself as extremely liberal, says he’s coming around to the idea that maybe we should at attempt to address hate speech.

Trompke suggests legislation that would make public hate speech a low-level offense, like a traffic ticket. It could be a violation, Trompke says, not a criminal charge, but enough to let offenders know society doesn’t approve.

“There’s a very fine line between what is merely offensive and what is so offensive as to attack a person’s dignity as a human being,” Trompke says. “But that doesn’t mean you shouldn’t try. We have to trust our judges to do the right thing. That’s what it comes down to.”

Then there’s Portland State University sociology professor Randy Blazak, chairman of the Oregon Coalition Against Hate Crime. Blazak says his work in trying to fight racism might be more difficult if public hate speech were not allowed.

“I’m glad I know who those people are,” Blazak says. “I know who is dedicated to white supremacy because they join groups and have websites and walk around with swastika T-shirts. It’s probably better that it is spoken rather than hiding the symptoms and not dealing with the actual illness.”

It doesn’t feel that way to Ellis Bradley, the North Mississippi food cart owner who was victimized by hate graffiti this summer. The incident, and others like it, have him looking at moving out of the region.

“It made me stop and look at where I was personally. Do I really want to live in the state of Oregon or be in the Northwest?” Bradley says. “I’m as American as anyone and I love the idea of having free speech. But it’s not free when you hurt people, when you discourage people, when you alienate people.”


Sometimes talk leads to violence

Hate speech may not be regulated in Oregon, but two landmark cases have proven that hateful speech can still be outside the bounds of the law.

In 1988, Ethiopian student Mulugeta Seraw was beaten to death by three skinheads in Southeast Portland. The skinheads were convicted of murder and sentenced to prison. Leaders of the Alabama-based Southern Poverty Law Center filed a civil suit, claiming that White Aryan Resistance leader Tom Metzger was also responsible for Seraw’s death.

Metzger, they claimed, had sent one of Seraw’s killers to Portland to organize a skinhead group called East Side White Pride. From California, he had incited and encouraged the violence that led to Seraw’s death. A jury agreed and awarded Seraw’s family $12.5 million, bankrupting Metzger.

Laws such as those adopted by European countries make hate speech illegal regardless of whether any tangible harm results. Southern Poverty Law Center founder Morris Dees, who has taken legal action against hate groups throughout the country, says he would never support such legislation.

“In America, you have the right to hate, but you don’t have the right to step over the line and harm somebody,” Dees says.

In 1995, the abortion rights movement was focused on a Portland courtroom when four physicians and two clinics at which abortions were performed sued a collection of radical anti-abortion groups. Nationally and locally, abortion clinics and doctors had been under siege. An Oregon woman shot an abortion doctor and a Portland clinic was firebombed.

Local anti-abortion organizations had published a series of “Wanted” posters which identified “Deadly Dozen” physicians who performed abortions, with pictures and addresses and even the names of their family members.

The anti-abortion groups claimed their posters and website material was protected by free speech. The court decided otherwise, determining the material crossed the line from free speech into threatening speech, and awarded $109 million in damages.