‘Hate’ is a strong word, but…

Is “hate speech” protected speech—and who gets to decide?

By Sarah Sidlow


Check out this asshole:

His name is Roger Jimenez, and he’s a pastor at Verity Baptist Church in Sacramento, California. He’s the guy who delivered a 45-minute sermon praising last week’s mass shooting at an Orlando, Florida, gay nightclub.

Jimenez told his congregation they “shouldn’t be mourning the death of 50 sodomites.” He went on, “The tragedy is that more of them didn’t die. The tragedy is—I’m kind of upset that he didn’t finish the job!”

Unsurprisingly, members of the LGBT community are not welcome at Verity, according to the church’s “What We Believe” page, which clarifies, “We believe that sodomy (homosexuality) is a sin and an abomination before God which God punishes with the death penalty.”

So there’s that.

The church uploaded a video of the sermon, but YouTube clapped back, removing it within days “for violating YouTube’s policy on hate speech.”

And since we’ve already defined “sodomy” this week, we might as well go ahead and define “hate speech,” because that’s what this story is about.

According to the American Bar Association, “Hate speech is speech that offends, threatens or insults groups, based on race, color, religion, national origin, sexual orientation, disability or other traits.”

Here’s where things get a little fuzzy, so stick with me. “Hate speech” is protected under the First Amendment as free speech. But just like religious leaders can have different interpretations of the Bible, lawyers and judges have different interpretations of the Constitution and legal precedent regarding free speech, and how far it can go. One generally accepted doctrine is that “fighting words” are not constitutionally protected as free speech. But fighting words have a weird/fascinating legal history, too. Here’s the short: In 1942, the Supreme Court heard a case called Chaplinsky v. New Hampshire in which Chaplinsky was convicted of disturbing the peace for (loudly) accusing the local sheriff of being a racketeer and a “damned fascist.” The Supremes upheld the conviction, saying that fighting words do not enjoy the protections of the First Amendment. They also defined fighting words as “words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace,” both of which are only moderately helpful—and that’s being generous.

So, we have a conflict about which is more important: Protecting community interests or protecting the rights of the individual.

For some, free speech is the most important American right proffered by the Constitution. This includes the right to say, write or create something that is distasteful, lewd or downright hateful. They argue they have as much of a right to say all sorts of creative, hurtful stuff about Pastor Jimenez as he has to say about anyone else. The argument also extends to other realms where personal liberties are questioned: If free speech is limited, what’s next?

But for others, the ability to say whatever pops into your head should not be put above the mission to create peaceful communities. CNN’s Chris Cuomo, who has a law degree, took to Twitter last year to assert his interpretation that the First Amendment doesn’t cover “hate speech.” And many believe it shouldn’t. They argue that when you live in a moral and political society, you enter into a social contract whereby the individual sacrifices some individual liberties for the sake of that society’s protection.

In case you’re curious, Verity Baptist Church consists of “independent denominations, conventions, and fellowships” (so sayeth their website), which means Jimenez probably doesn’t hold any accountability to a larger religious community.

Reach Dayton City Paper forum moderator Sarah Sidlow at SarahSidlow@DaytonCityPaper.com


Hands off the 1st Amendment

By Ron Kozar

You’re not allowed to punch Roger Jimenez in the nose, so let’s repeal freedom of speech instead. Right?

Wrong. Prohibiting speech because it offends you does not just turn tolerance, the Enlightenment and the Constitution on their heads. It’s also one of the most birdbrained ideas of our time.

And, in a striking departure from the norm, it is the left, not the right, in whose nest that birdbrained idea is hatching. Historically, the would-be Thought Police were church ladies in cat-eye glasses on the right. Today, they are the YouTube-deleters, commencement-speech cancelers and speech-code enactors of the left. They are mostly spoiled college kids; a poll last year said 40 percent of millennials were OK with outlawing hate speech. But there are some grown-ups, too. When the rest of the civilized world denounced the Netherlands’ prosecution of Geert Wilders for speaking ill of Islam, The New York Times editorialized that putting Wilders on trial was just peachy.

What good do such people hope to achieve with speech prohibitions? The church ladies wanted speech codes to protect the kiddies from pernicious ideas like communism and birth control. By contrast, today’s Thought Police don’t want to be offended. They positively wet their pants at the thought of being offended.

Readers of this paper don’t realize how much the right laughs at the anxiety the tattoo-and-piercing set expresses over being offended. Conservatives would much rather talk about that than about ideas like Jimenez’s. The people from whom you’re likely to hear about Jimenez are not those, numerous though they are, who quietly agree with him. They find Jimenez and others like him to be inarticulate embarrassments that set back the cause. Rather, the people who will likely tell you about Jimenez’s sermon are those most outraged by it, such as Christians who heed Christ’s admonition about casting the first stone, or every sexual minority you can think of. The day the thought police slap handcuffs on Jimenez, however, or on anyone like him, that would change. It would be the anti-gay right, not the left, that would then trumpet Jimenez’s name. His prosecution would become Exhibit A in support of the claim that gays want more than mere tolerance, that they want to use force to stymie all criticism.

So it would be with any hate speech prosecution. The right noisily, and rightly, portrays the subject of every such prosecution in Canada or Europe as a modern-day John Peter Zenger. Mark Steyn, conservative pundit and radio stand-in for Rush Limbaugh, seldom fails to mention his conflict with the Canadian Human Rights Commission for criticizing Islam. The right has been abuzz for years about the arrest of a British parliamentary candidate for quoting Winston Churchill on Muslims. And don’t get me started about the rhetorical mileage the right gets out of campus speech codes.

But the strongest argument against repealing freedom of speech is the one every culturally literate reader already knows. It is Voltaire’s argument, Milton’s argument, the argument attributed to Sir Thomas More in Robert Bolt’s “A Man for All Seasons”:
Roper:  So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to go after the Devil?
Roper: I’d cut down every law in England to do that.
More: Oh? And when the last law was down and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat?

The pendulum will swing. It always does. The sauce you are cooking for some grumpy fundamentalist’s goose will one day be reheated for your gay rights gander. The Devil will turn ‘round on you.

When he does, no amount of definitional finesse will enable you to hide behind whatever is left of the First Amendment. Lawyers make a rich living off the malleability of words and phrases, and hate speech is a doozy. Defining it in a watertight way is like pinning Jell-O to a bulletin board. Consider the American Bar Association’s attempt. “Hate speech,” the ABA says, “is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.” Let’s unpack the most savory part: “Speech that offends… groups… based on… traits.” That, dear reader, could cover about half of all the words ever uttered in the history of the larynx. If this is the best that the lawyers at the ABA can do, what sort of hydra-headed monstrosity might we get from an actual committee of citizen legislators in, say, the California General Assembly?

Over the past century, the First Amendment has been a refuge and bastion for many of the same minorities who now want to curtail it. This benighted republic has many things wrong with it, but freedom of speech is not one of them. Keep your hands off the First Amendment.

Ron Kozar is a lawyer in Dayton.  He can be reached at Ronald.Kozar@gmail.com

I would be moved if prayer could move me

By Benjamin Tomkins

What exactly is the difference between speech and hate speech? I hate people all the time, and I say it, and I have a profound number of reasons for doing so. They don’t happen to include race, but sometimes it does include people and their religious views. Let me think on an example…

I happen to find this whole business with Mr. Jimenez, and I doubt we’ll have to refer to him as “pastor” for too much longer, to be absolutely ridiculous and offensive. He’s an asshole, and his church should be burned to the ground. I think someone who would say things like we “shouldn’t be mourning the death of 50 sodomites” after the Florida attack should go to a hell that unfortunately doesn’t exist, and if he dies tomorrow it will be 1,000 years too late. I think his religion is a lie, a sham and a gigantic pile of crap, and he’s an opportunistic swine who is using it to get more donations into the basket so he can live a rich life off of the tasty financial fruits his dewy-eyed members sitting in the pews have earned for actually doing work.

I’m just getting warmed up here. At what point do the hate speech police start banging down my door? How many times do I say that before I’ve crossed the line from hating something with my speech and producing this mythical commodity called “hate speech” that will send me to jail rather than make me annoying?

The best part of all this outrage is that Jimenez’s comments are pathetic examples of hate speech. He is not inciting his community to violence, but merely expressing a desire that more violence occurred. There are many websites all over the place that advocate hatred and separation from race to religion to sexual orientation. He also didn’t say anything I haven’t heard a million times before. Here is the direct pullout from the Washington Post:

“People say, like: ‘Well, aren’t you sad that 50 sodomites died?’” Jimenez said, referencing the initial death toll in Orlando, which authorities later clarified included 49 victims plus the gunman. “Here’s the problem with that. It’s like the equivalent of asking me—what if you asked me: ‘Hey, are you sad that 50 pedophiles were killed today?’

“Um, no, I think that’s great. I think that helps society. You know, I think Orlando, Fla., is a little safer tonight.”

He added: “The tragedy is that more of them didn’t die. The tragedy is—I’m kind of upset that he didn’t finish the job!”

I can do so much better than that without even trying, and I think, somehow, after reading that I will find a way to go down the street and get my coffee in the morning. It’s not in the top thousand. I’ve heard things like that so many times I basically just try to remember a name and what category I place them in.

So why are we suddenly up in arms? The answer is incredibly simple for two reasons. First, this is an election season, and everyone is ripe for outrage. I won’t say it was a slow news day, but I do think this particular story is overblown given the petty and small-scale nature of the man. If you had heard of him before this, I would be amazed.

Second, it made the paper. Well, lots of things do and don’t, and there is no difference between speech and the press in this country. In Justinian’s compilation of Roman law, he cites the Lex Iulia saying that it should not be a crime worthy of punishment for being a fornicator if you are doing it with slaves—I’ll let you decide if this example is offensive—because the damage to your reputation is enough. I’m pretty certain that’s the case with Jimenez.

Also, who can say when hate speech has occurred? Ninety-nine times out of a hundred it’s subject to the public outcry of the equivalent of Shakespeare’s Roman citizens in, to borrow his name again, Julius Caesar. People issue hate speech according to its definition every day, and yet it is only a high profile example that offends a large section of the citizenry that raises demand for blood in this regard.

Finally, there is no person on earth I would grant the privilege for determining what is OK for me to hear and what is not, and I would be shocked if you could find someone who would. Is that an elected officer or an appointee of the president or Congress?

Speech does not enter the realm of civil or criminal law unless it is libel or slander, or is a direct incitement to violence that reasonably can be expected to be acted upon. This certainly does not meet those criteria. Even in the criminal sense, the speech is only the bridge to culpability in the actual act performed, not for the speech itself. Assault or intimidation is the only other forms of criminal speech that can result in judicial intervention.

It seems to me that Jimenez’s comments are precisely the kind of speech that is afforded special protection by the First Amendment, and to shut him up and throw him in jail for saying what he said would be to thrust a stake through the heart of the Constitution.

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.


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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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