The Tension Between Free Speech and Hate Speech

By Brooke Barnett, professor and Dean of the College of Communication at Butler University,
and Naeemah Clark, J. Earl Danieley Distinguished Professor of Communications at Elon University

A shared goal across many organizations is creating a workplace culture that fosters discussions of issues that matter. At the same time, organizations are mindful of avoiding the types of speech that create a hostile work environment or distract from the work at hand. The Chief Communication Officer (CCO) is at the center of this tension between free flow of communication that supports a commitment to Diversity, Equity, and Inclusion (DEI) and maintaining collegiality needed in the workforce of all organizations. The January 6, 2021, US capital breach has also placed the issues of free expression and companies in the spotlight. As media law scholar and a communication industry scholar, we find that first amendment jurisprudence offers some helpful context. 

The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Congress is broadly interpreted to mean government--local, state and federal--as well as public funded organizations such as universities. The government has a special obligation around free speech by which private organizations are not bound. Further, there are many reasons that private companies might want to limit more speech than governments would. However, the prevailing purpose of the First Amendment aligns with the many workplace goals: to promote and facilitate honest conversations and dialogue that advance an organization, rather than allowing unfiltered and unfettered free speech that might silence marginalized communities and limit their full participation in work, potentially losing the excellent contributions of community members with diverse perspectives.

Freedom of expression and DEI are not mutually exclusive, but there are clear tensions. For example, workplaces have become more accepting when employees openly share their cultural identities in the office, but, in some cases, this acceptance becomes more difficult when it comes to religious views, particularly if they are proselytizing at the watercooler. When free flowing information hinges on civility, that norm can enforce assimilation in order to maintain a culture of “niceness.” For example, some company executives have instituted a public statement that encourages employees to share perspectives, but, in reality, the power and privileges that come with C-suite positions, titles, race and gender can harm and stifle expression from employees in marginalized groups. Not acknowledging the reality of these institutional and society disparities in these public statements may actually impose further limits on free and open discussions. These tensions can be balanced via the First Amendment jurisprudence. 

There is a continuum in legal thinking when it comes to the balance of free expression and racist, homophobic, sexist or other offensive or problematic speech, but for ease consider the two major camps in the U.S.

In one camp are those who see the freedom of expression as a fundamental right that should be rarely if ever restrained. They argue that any restriction on speech is unwise because the regulations used to silence bigots can also be used to silence their camp’s views as well. Cases that have defended racist and anti-Semitic speakers have been used as arguments to defend those fighting for justice. If curbs on expression are mandated, it must be assumed that the rules would be applied the same--no matter who is in charge. There is distrust that a company or political leader will be able or willing to be consistent in how the rules are applied. For strong free speech advocates, the solution to discriminatory or offensive speech is more speech, educational efforts, and social norming campaigns. This philosophy, known as the marketplace of ideas, provides for more dialogue and learning opportunities and limited speech restrictions. 

In the other camp are those who argue that not all voices in the marketplace have the same access to those in the public square. In this perspective, free flowing speech in the workplace or public sphere does not adequately protect marginalized groups from the very real harms of hate speech. This same view also holds that crucial ideas do not make it into the conversation because of barriers to the marketplace, such as lack of financial or social capital. At the same time, they argue that not all speech is equal, and therefore some speech is of such low value that it does not deserve protection. This camp holds the perspective that a literal reading of the First Amendment is incomplete because the original authors of the Bill of Rights did not anticipate the current information ecosystem, nor did they place enough value on equity. Hateful speech, for example, can have a silencing effect that undermines goals of free speech in the first place, and hate speech can be shut down in the way the U.S. has with other forms of prohibited speech (e.g., legal obscenity, incitements to violence). 

Please use this example where a tightrope of tension was stretched to make a narrow but passable sidewalk as a tangible way to create your statement of commitments and then a dialogue process and opportunities around the statement. Your own passable sidewalk. 

At Elon University, tensions would percolate when a group of community members’ views offended another group holding opposing views. The conflicts were confounding because the university’s mission supports free expression, but it also does its best to celebrate the identities of marginalized populations. To address these conflicts, a group of us wrote a commitment to the values of freedom of expression and inclusivity that we used as a conversation piece with stakeholders across campus. The statement of commitments was meant to be a starting place for discussing the university’s core values, and could be helpful when controversy arises. The commitment is a preemptive measure so that the organization is not trying to figure out its communication values at the same time it addresses a crisis. This one is for a specific academic institution; each organization needs to create one that fits its own context. As a starting point, state what is desired in your workplace (e.g., importance of respect, listening, responsibilities of speech, need for evidence-based reasoning) and then determine what is not allowed (e.g., proselytizing at work, harassment, hate speech). 

The statement then can become a point of discussion around these shared values in your workplace and can be quite useful as you work to develop a culture around these values and address the tensions therein. Workplaces can find success through these efforts to develop a strong culture that is clear about values and creates space for dialogue that furthers the mission.