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Hate speech. It’s a term that has become the new political currency of injustice. It was recently the subject of the 9th circuit court of appeals in Good News Association v. Hicks. The court upheld the lower court ruling that Good News Association engaged in what amounted to “hate speech” when it posted a flier that read in its entirety:

Preserve Our Workplace with Integrity
Good News Employee Associations is a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family values. If you would like to be a part of preserving integrity in the Workplace call Regina Rederford @xxx- xxxx or Robin Christy @xxx-xxxx

Joyce Hicks, Director of Communication and Economic Development for the city of Oakland California, ordered Christy and Rederford, who worked for the city, to remove the “homophobic”flier or face termination for harassment. The trouble is that Oakland didn’t require the rest of the employees to keep their partisan political and religious speech to themselves. According to the Pro-Family Law Center :

“The court” completely failed to address the concerns of the appellants with respect to the fact that the City of Oakland’s Gay-Straight Employees Alliance was openly allowed to attack the Bible in widespread city e-mails, to deride Christian values as antiquated, and to refer to Bible-believing Christians as hateful. When the plaintiffs attempted to refute this blatant attack on people of faith, they were threatened with immediate termination by the City of Oakland. The Ninth Circuit did not feel that the threat of immediate termination had any effect on free speech.”

First, let me say that I am not qualified to dissect the court’s legal reasoning. Given that the 9th circuit is the most over turned appellate court in the land, however leads me to think the court’s legal reasoning often leaves much to be desired. But there is a bigger question. Why did the City of Oakland allow The Employees Gay-Straight alliance to call Christians hateful and the Bible antiquated but characterized the Christian response as hate speech? Why did the lower court called the free speech interests of the Good News Assoc., “vanishingly small”? High courts usually don’t sound so nonchalant about the first amendment. In other words, why the blatant double standard without any justification whatsoever?

I want to suggest there is a subtle, unarticulated, understanding of justice that may explain why the City of Oakland didn’t see their policy as an egregious double standard. And in a phrase it goes something like this, “Because of the status and history of Christianity, Christians cannot be the target of hate speech ever.” You won’t read it in the Oakland City employee manual but in popular advocacy of hate speech laws there are three criteria for hate speech:

1) The speech in question must be “face to face” in the sense that it demeans some group or individual not merely to an idea.

2) The speech in question must demean others in regard to race, sex, sexual orientation, religion, or national origin.

3) The speech in question must be aimed at an individual or a group that has a history of oppression or discrimination.

While I think the flier in question fails the 1st criteria (it doesn’t refute or address any group or individual, let alone homosexuals), it’s this last provision, which makes all the difference. According to many advocates of hate speech legislation, historically dominant groups like Christianity may be offended by statements that the Bible needs to be updated or the fiery statements of gay activists, but what Christians cannot be, is targets of hate speech. Christians are not the historically oppressed but rather the oppressors. Also, according to some hate speech opponents, Christians cannot feel the alienation of oppressed groups because of their majority status. Christians, like whites cannot be the victims of hate speech because they form the predominant social group and can retreat to the safe harbor of dominant social culture that minorities do not have.

Though it is not usually put this way, there is implicit conception of justice as balancing the scales. Contra the historic liberal doctrine that government must be neutral about the good life, the new left argues that the demands of justice may require promoting or subsidizing those who have been victims of oppression at the expense of the right to free speech.

Since Christianity is seen as the dominant oppressor, oppressed groups ought to be given leeway to express their discontent even if it violates the oppressor’s so called right to free speech. In other words justice may require a double standard to balance the scales. There are several problems with this argument. For starters, it seems to downplay or ignore Liberalism’s historic sense that freedom of speech is a cherished right. Remember when the left were among the most ardent defenders of free speech? Now they are its most ardent critics.

Second, I seem to remember a Roman persecution that involved lions and coliseums, so Christianity has been historically oppressed. Furthermore that oppression isn’t just in the distant past. Christians in China and in many predominantly Islamic countries are not just oppressed but persecuted physically for talking about their faith. This means that the “historically oppressed” criterion is fluid and must mean something like “oppressed in the recent past” or “traditionally oppressed groups” within America. This starts to sound like the criterion is “Whoever the left considers oppressed, are oppressed.” I have never gotten much sympathy from my leftist friends when I point out that many Christians, notably creationists, endure vitriol the likes of which if published about Muslims, Gays, or even Vegetarians would make Al Sharpton blush.

Third, these criteria would overturn what the new left calls “The Civil Libertarian story” of free speech and that interest is not “vanishingly small.” Freedom to express or persuade others has historically been seen as a right that needs compelling interest to be restrained. Supreme Court Justice Hugo Black was famous for arguing that when the first amendment says Congress shall make no law abridging freedom of speech: “No law, means no law.” This “historically oppressed” criterion is dangerously vague. What indicates historical oppression? At what point is a group no longer oppressed but on equal footing or even dominant? Can oppression by indexed to culture? If so, in Oakland, which group is more maligned gays or Christians? The point is, if we give oppressed groups a pass on their speech as a way of balancing the scales, at what point do the scales balance and how do we know? Since this argument treads on over 200 years of Constitution interpretation, the least advocates could provide is some precision if we are going to fire people, sue them, or put them in jail.

Lastly, there is something shall we say, “less than virtuous” about correcting oppression by becoming oppressors in the name of balancing the scales. It smacks of intolerance and the ends justifying the means. In other words, it looks a lot like revenge. Hardly a liberal virtue.

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