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The Coronavirus Tests Free Speech

Appeared in Issues and Insights

The coronavirus pandemic has revealed the absolute best in some of our fellow citizens. Chief among them, of course, are the selfless heroes working in the health care and first responder industries.

Unfortunately, the pandemic has also shown the worst in others. Bigots and xenophobes have been harassing, shaming, and – quite literally – spitting on Chinese Americans and others of Asian descent.

Recently, the San Antonio City Council unanimously passed a resolution that labels terms like “Chinese virus” or “Kung Fu virus” as hate speech. It encourages anyone who hears the usage of these terms to report it to authorities for investigation to help them determine if a criminal “hate act” occurred.

This is the wrong move. There is a fine line between speech that makes us uncomfortable and speech that could result in a criminal offense.

Racism is disgusting. And yet, for the most part, such speech is perfectly legal. Using hateful and vituperative language is protected by the First Amendment. Restrictions on free speech are largely limited to things like inducing a panic (yelling “fire” in a crowded theater) or instigating violence.

“Mere” verbal racist abuse, though largely legal, does not make it right. U.S. leaders, including the president, are stoking this unfortunate behavior by referring to the coronavirus as the “Chinese virus” thus emboldening others to spew hatred against Chinese people. Even some in the media, such as CNN, initially called it the “Chinese coronavirus.”

The reaction today is not dissimilar to the xenophobic acts that proliferated after the 9/11 attacks. But a key difference was the reaction from the White House. After the terrorist attacks, President George W. Bush publicly discouraged hate-filled attacks against Muslims.

This has not been the response today. The president said he used “China virus” in part to chastise Chinese officials for falsely claiming that the virus was the result of an intentional act by the U.S. Army to plant the virus in China.

At the same time, while the language can be inflammatory, it is also technically accurate. The virus originated in China, though it largely spread to the U.S. from European travelers. As liberal comedian Bill Maher recently pointed out, Lyme Disease is named that because it was first discovered in Lyme, Connecticut. If you’ve passed through airport customs you’ve probably seen warnings about Middle East Respiratory Syndrome. And want to guess why we call it the “West Nile Virus”?

What should be done when a phrase is accurate, politicized, and also being misused by bigots?

While we must not ignore the fact that hateful speech produces real physical and psychological harm, we must keep in mind the important freedoms the First Amendment provides for all Americans. Open, free dialogue allows us to express our opinions without government censorship. Sadly, some individuals use that freedom to harm others with their words. But if the government were to censor what we say, Americans would become afraid to speak. Even censoring hate speech could be a domino effect for wider restrictions.

University of Chicago constitutional scholar Geoffrey Stone noted that the Supreme Court subsumed hate-speech legislation within its more general assumption that most forms of content-based restrictions of speech are presumptively unconstitutional. He stated that the “government cannot be trusted to (judge) which ideas can and cannot be aired in public debate.”

Stone’s wariness is echoed across the political spectrum.

While some individuals might choose to use harmful, bigoted speech, it is up to other individuals – not the government – to condemn that behavior. Each person must rely on their moral judgment when interacting with other individuals.

The U.S. is ill-served by having the government choose what speech is permissible and what is not. As seen in San Antonio, a term can be deemed hate speech at the drop of a hat. This is a slippery slope to more government censorship over our First Amendment rights.

America – and the world – is best served by abiding by civil societal norms of sympathy, affinity, and compassion. Not censorship.

Robert D. Lystad is the Executive Director of the non-profit Campaign for Free Speech, based in Washington. D.C.

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