Trump’s bigotry tests the limits of free speech

Donald Trump’s candidacy for president has triggered a cascade of bigotry: first against Mexicans, then against women, and lately, in the wake of the attacks in Paris and San Bernardino, against Muslims. Trump continuously defends his outlandish statements, responding to criticism with different iterations of “I’m so tired of this politically correct crap” — suggesting, in other words, that the problem is not his overt racism, but an intolerant society of overly sensitive liberals who violate his freedom of speech.

Trump’s recent call to ban Muslims from entering the United States enraged Democrats and Republicans, and even elicited criticism from Israeli Prime Minister Benjamin Netanyahu. But Trump is relentless in his bigotry, and has declared a war on political correctness, using his presidential campaign as its first offensive.

His war is escalating, nearly unabated; although his hateful slurs are despicable, they’re perfectly legal in the U.S. A nearly all-encompassing defense of speech, enshrined in the First Amendment, is a cornerstone of the American legal system. The amendment serves as a check on government overreach, allowing citizens to freely criticize those in power without fear of repercussion. That promotes a culture of debate, characterized by protest and disagreement. Long-serving Supreme Court Justice Hugo Black, an ardent defender of the First Amendment, famously described its protection against exceptions to the rule, saying that “Congress shall make no law … abridging the freedom of speech” means “no law.”

But that system is not universally revered. It has obvious costs: Tolerating bigoted speech means that people — particularly the marginalized — often get hurt. The alternative means taking punitive measures. Earlier this year, brothers at the University of Oklahoma fraternity Sigma Alpha Epsilon were filmed chanting, “There will never be a nigger [at] SAE, you can hang him from a tree.” Two of them were subsequently expelled — the rest were disciplined and the fraternity was closed — prompting outcry from lawyers who argued that, as a public institution, the university had violated the First Amendment.

But for many, the students’ reference to lynching was a chilling echo of a dark past, and should be rejected. After the incident, Kent Greenfield, a professor at Boston College Law School, wrote that embracing the right to chant racist slogans is a “bloated” and “ham-fisted” interpretation of the First Amendment that should compel us to rethink its meaning.

The students’ expulsion may have sent that message, and was generally popular among students. Still, opponents cited numerous court rulings that disallow universities from disciplining students based on speech. It later came to light that the students had learned the racist chant years prior at a national fraternity event; an investigation showed that it had been an institutionalized part of fraternity culture for the last 50 years. At the time, some argued that the expulsions offered a swift way to postpone addressing deeper issues of racism on campus.

In other countries, the Oklahoma expulsion would have been a no-brainer, and Trump’s hate speech would certainly not fly. France is a good example. When National Front politician Anne-Sophie Leclère compared Justice Minister Christiane Taubira, a black woman, to a chimpanzee, she received a nine-month prison term and a 50,000 euro fine. The penalty is currently under review, but the mere fact that she was tried for her racist remarks — and handed a clearly disproportionate sentence — is indicative of France’s interventionist free-speech regime.

Another case in point is France’s cancelation of controversial comedian Dieudonné M’bala M’bala’s shows for his anti-Semitic remarks. He was also convicted of condoning terrorism after the attacks on the satirical publication Charlie Hebdo in January in response to comments he made on Facebook. But as I’ve written, the French standard for speech protections is deeply flawed and lends itself to politicized judicial decisions that stoke tensions over the government’s perceived biases.

Trump is not the only public figure in the U.S. to offend minorities openly. In December, Supreme Court Justice Antonin Scalia said that African-Americans would do better in “less advanced schools.” But Trump’s hate speech has had particularly unsettling implications. His early campaign comments about Mexican immigrants — whom he characterized as rapists and drug dealers — inspired violent hate crimes, and his call to ban Muslims has likely done the same.

The First Amendment doesn’t protect speech that incites violence, but does it protect Trump’s tirades against minorities? While there’s a clear consensus that Trump’s speech should be censured — and it has been, almost across the board — there would be little public appetite in this country for it to be censored.

The reality is that exposing Trump’s discriminatory remarks to legal action wouldn’t upend his views; policing the racist fringe provides no guarantee for extinguishing it. In France, canceling Dieudonné’s shows galvanized his fans, who likely already shared the comedian’s sentiments. And following Trump’s proposed Muslim ban, his ratings went up, making it clear that his radical views are not so fringe after all. Prosecuting discriminatory speech, then, seems either ineffective or counterproductive, and empowers the government to make value judgments that it isn’t equipped to — and doesn’t exist to — enforce.

From Trump’s chillingly influential and unrelenting bigotry to the expulsion of the Oklahoma frat boys, conversations over the limits of free speech in the U.S. are coming to the fore. And unlike the French model that authorizes the government to shape civic dialogue, America’s free speech protections perhaps idealistically suggest that the marginalized will be empowered to counter hateful speech, and that norms and taboos will emerge to inform behavior. It’s an approach that tells France, rather than cancel Dieudonné’s anti-Semitic skits, to aspire for a society that, through robust debate, universally condemns his intolerance to rid him of his audience.

Stomaching hateful views is unpleasant, but they cannot be legislated away. The answer is to respond intelligently and sharply to bigoted speech that pollutes society with fear. It’s to explain why the Oklahoma frat brothers’ chants are so abhorrent, and to do so publicly — to shame them to the extent that they deserve. It’s to fact-check Trump’s lies about Muslims, as many media outlets have done, and to remind Americans that he is not fit to be president of the United States.

And Americans should do so responsibly. We should reject the fact that, as Rula Jebreal writes, our TV media responds to Trump’s outlandish proposals with a seemingly serious debate on “whether Islam is an inherently violent religion,” as MSNBC’s Morning Joe did. Rather than elevating Trump’s bellicose rhetoric to a legitimate policy option, we should argue with the 41 percent of Republicans who support him, working to reveal his statements for what they are — hateful, inaccurate and dangerous.

The U.S. free speech regime affords us that opportunity. It grants us the right to be outraged, to advocate against dangerous scaremongering without fear of repercussion. It also means that we’ll have to tolerate racist frat boys, from the University of Oklahoma to the 2016 presidential campaign, but that we’ll have the opportunity and the right to drown them out.