A coalition including more than 30 groups has asked the Federal Communications Commission to police what they perceive as hate speech in the broadcast media. In a letter to the FCC, the group, led by The National Hispanic Media Coalition, asks the commission to “examine the extent and effects of hate speech in media, including the likely link between hate speech and hate crimes, and to explore non-regulatory ways to counteract its negative impacts.”
Although the FCC has long regulated elements such as children’s educational information requirements, equality of political time, and indecency on U.S. airwaves, the request is far beyond any intervention the commission has taken to date.
Groups requesting the FCC intervention include the National Hispanic Media Coalition, the Center for Media Justice, Free Press, and others. They filed a Petition for Inquiry on hate speech in media in January of 2009 and submitted a subsequent filing in early May, urging action be taken on the original petition.
The coalition also wants the FCC to collect data on hate speech so that their groups can use that information to hold the media accountable.
Shutting Down Debate
In a joint letter, the organizations state, “As traditional media have become less diverse and less competitive, they have also grown less responsible and less responsive to the communities that they are supposed to serve. In this same atmosphere hate speech thrives, as hate has developed as a profit-model for syndicated radio and cable television program masquerading as ‘news.'”
One of the issues the coalition cites as an example of hate speech that merits FCC regulation is the advocacy of Arizona’s new immigration laws by some media personalities. The letter claims, “As NHMC has awaited Commission action, hate, extremism and misinformation have been on the rise, and even more so in the past week as the media has focused on Arizona’s passage of one of the harshest pieces of anti-Latino legislation in this country’s history, SB 1070.”
First Amendment Issue
John Samples, director of the Center for Representative Government at the Cato Institute, a Washington-DC based think tank, says the major concern the letter brings up is the legality of the requested action.
“Everyone believes that freedom of speech matters a lot to American democracy. The language of the Constitution indicates the heavy weight attached to freedom of speech in the scales of constitutional adjudication,” he said.
Samples says the requests made to curtail speech contained in the coalition’s letter would not withstand constitutional scrutiny.
“Congress shall ‘make no law abridging the freedom of speech’ means almost all laws limiting speech will be struck down by the courts,” he said. “The judiciary has recognized a few exceptions where government can limit speech, such as fighting words, incitement, and concrete threats, but what is being called for here does not fit one of the exceptions.
“The groups may be arguing that ‘hate speech’ should be recognized as an exception, but the courts have long been skeptical of vague concepts and laws that impinge on First Amendment rights. Hate speech does not have an accepted and clear meaning,” he added.
Concerned About Precedent
A recent example, according to Samples, is a 2008 case in San Francisco prompted when a local radio talk-show host stated, “And this is all under the Gavin Newsom administration and the Gavin Newsom policy in San Francisco of letting underage illegal alien criminals loose.”
The quote is from the July 21, 2008 episode of The John & Ken Show, a talk radio program from KFI-AM in Los Angeles hosted by John Kobylt and Ken Chiampu. Some groups behind the current petition and the University California Los Angeles Chicano Studies Research Center labeled the phrase “letting underage illegal alien criminals loose” as hate speech.
UCLA CSRC researchers Chon A. Noriega and Francisco Iribarren established that the quote constituted hate speech due to four criteria they devised for their preliminary report: “Hate Speech on Commercial Talk Radio.” These four types of hate speech are dehumanizing metaphors, flawed argumentation, divisive language and false statements.
According to Noriega and Iribarren, the John & Ken Show quote employs three of the four types of hate speech: false facts, flawed argumentation and divisive language.
“It is not hard to imagine that if the hate speech exception to the First Amendment was recognized, every group from every perspective would try to get any controversial speech by their opponents labeled hate speech and then suppressed,” Samples said.
Chilling Effect Foreseen
Samples acknowledges the groups in question claim they are only asking the FCC to collect data, but he warns this data could be used to argue stations running talk radio are rigging or slanting the news, an offense that could lead to stations losing their licenses.
One outcome of this scenario, said Samples, would be a media afraid to broadcast any controversial speech, which he characterizes as an unforeseen consequence neither recognized nor desired by the groups behind the petition.
“The problem here, as always, is that the freedom of speech requires people to tolerate speech and people they despise,” said Samples. “The human inclination is to silence speech we abhor. The First Amendment stands against that inclination to protect both individual rights and the process of forming public opinion. We can only hope this effort to crack down on political speech goes nowhere.”
Sarah McIntosh ([email protected]) teaches constitutional law and American politics at Wichita State University in Kansas.
Text of NHMC letter to the FCC: http://fjallfoss.fcc.gov/ecfs/document/view?id=7020450549.
Text of University California Los Angeles Chicano Studies Research Center’s “Hate Speech on Commercial Talk Radio:” www.chicano.ucla.edu/press/briefs/documents/PB22_000.pdf.