In the News: Ye and Hate Speech

Show Notes

Nia and Aughie discuss government intervention, Supreme Court rulings, and hate speech. in light of recent anti-semitic comments made by Ye West.

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N. Rodgers: Hey Aughie?

J. Aughenbaugh: Good morning, Nia. How are you?

N. Rodgers: I'm good. How are you?

J. Aughenbaugh: I'm good because we get to do something a little bit different with today's podcast.

N. Rodgers: Yeah, we're doing in the news.

J. Aughenbaugh: We're doing in the news, and moreover, it's in the news. I got to admit Nia, when you and I agreed to do this podcast, I never thought we would have a podcast episode about Kanye West.

N. Rodgers: I neither. I have to admit. For the record, we need to state at the outset that neither one of us agree with Kanye West anti-semitic comments.

J. Aughenbaugh: That is correct.

N. Rodgers: We both condemn that and think that it's awful.

J. Aughenbaugh: It's awful. I am vehemently opposed to anti-Semitism. I think anybody who makes those remarks, I choose not to listen.

N. Rodgers: It shows a wild lack of education. This is where it goes. We don't like that here because of course we're educators. The whole point of our careers is to try to fight off misinformation, disinformation, fake news, bad information, that thing. Let us start there by saying that. However, let us also note that you get to be publicly dumb whenever you want to be until there's a line. That's the line that I wanted to talk to you about today if we could. You can say all the dumb stuff you want, and I'm trying hard not to curse. You can see all the dumb stuff you want publicly. But when does it cross the line into when the government intervenes?

J. Aughenbaugh: Let's first go ahead and discuss an important concept. Because a lot of what Kanye West said about Jews, has been described as hate speech. In constitutional law, hate speech has a rather precise definition, Nia. Actually, the definition I'm about to state comes from the Oxford dictionary. It's pretty much a paraphrase that you see in a number of Supreme Court rulings. Hate speech is, abusive or threatening speech or writing that expresses prejudice against particular group, especially on the basis of race, religion, or sexual orientation. Now, let's also make a distinction here, Nia. Hate speech is not any speech that you may not like or is critical of you or group of which you're a member.

N. Rodgers: Even if you're not a member.

J. Aughenbaugh: Yes.

N. Rodgers: Hate speech isn't just speech you disagree with.

J. Aughenbaugh: Yes.

N. Rodgers: It goes beyond that.

J. Aughenbaugh: Yes. It is speech that expresses clearly a prejudice against a particular group, simply because of their existence. You asked, when does hate speech cross the line? Well, here's another important distinction or data point. I frequently have to make this and Nia, you know I do because you've actually been with me. You've been in forums where I've had to go ahead and clarify a very important distinction. The ability to engage in speech and not have the government regulate it, prohibit it, ban it, is protected by the First Amendment.

N. Rodgers: The government shall not abridge of freedom of speech.

J. Aughenbaugh: That's right. That's the First Amendment of the United States Constitution. What the Supreme Court has said, and this is the current precedent. In the case of RAV versus St. Paul, is that the government does not get to pick which viewpoints may or may not be expressed. Can the government ban, prosecute anybody who expresses hate speech like Kanye West recently did? According to the Supreme Court, the answer is no. Because the First Amendment is designed to promote as much speech as possible. Because those who wrote the First Amendment apparently thought that more speech is better than no speech or less speech in a democracy.

N. Rodgers: People will say, because of his position of power, that he could incite others to do violent things. But if I'm correct that the Supreme Court is saying is there must be an obvious, clear, and present danger created by this person's speech. We are going to go out right now, find some people and hurt them because they are in whatever group in this instance, Jews. But whatever group. If he had said that, he could have been arrested and prosecuted because he would have been inciting violence directly.

J. Aughenbaugh: Yes.

N. Rodgers: But saying that because he's a powerful person, whatever he says, carries weight that would cause people to be-.

J. Aughenbaugh: To feel hurt.

N. Rodgers: Or to or to be incited to do something, is it necessarily the case?

J. Aughenbaugh: Yes. What you're talking about and listeners, Nia and I discussed this in a previous podcast episode in regards to Supreme Court tests. What Nia is referring to in the current test is from the Brandenburg case. In the Brandenburg versus Ohio case in 1969, the Supreme Court said, the government has the authority to prevent speech that, and here's the key phrase, that creates imminent lawless action.

N. Rodgers: That's it. Imminent lawless action. Thank you. That's a different test.

J. Aughenbaugh: Well, that was the previous if you will test or standard. The burden is on the government. Again, speech is privileged. The burden is on the government to go ahead and show that the speech that you may engage in will likely lead to imminent lawless action. You still have the initial privilege to go ahead and say some really despicable stuff.

N. Rodgers: People have regularly done that.

J. Aughenbaugh: Sure, they do it all the time. That's one side of the equation. The other side of the equation, and this is where Nia and I got interested in doing this podcast episode in the news. Is the week we are recording this, a number of rather prominent corporations have done what in regards to Kanye West?

N. Rodgers: Dropped him like a hot rock.

J. Aughenbaugh: My goodness.

N. Rodgers: You know that in Bugs Bunny, witch Hazel, when she flies off, and her hairpins hang in the air for a few seconds before they drop. That's what it's looking like with all of his sponsors. He lost his Adidas, I don't know how you say it exactly, us we say Adidas in the United States, but I think they say Adidas in other places. But they dropped him and he lost $250 million out of their deal and whatever. It took them a little while to come around to that, which is a whole separate issue. But he went into Skechers, into their corporate headquarters and he was there approximately four seconds before somebody said no, let's escort you out of here. We don't want people to think that we're working with you. It's not just one or two corporate sponsors, it's a lot of people.

J. Aughenbaugh: Is part of his business, if you will empire, excuse me.

N. Rodgers: His clothing, he makes fashion.

J. Aughenbaugh: Well, it's more than clothing. Where I was going with Nia, is a decade or so ago, he created a sports management agency unit of his business empire, representing professional athletes in negotiating their contracts. Some rather prominent professional athletes have now canceled their contracts with his sport agency firm. In sports agency firms, when they negotiate a professional athletes contract, typically receive five percent of the overall value of the contract for their services.

N. Rodgers: That's a lot of money, because there's a lot of money sloshing around in professional scope.

J. Aughenbaugh: That's right.

N. Rodgers: Can we also mention too, that this is how the marketplace work.

N. Rodgers: The marketplace of ideas, if your idea is anathema to other people, they will walk away and you're left standing there shouting on the sidewalk by yourself, like theirs. That's one of the great things about democracy is I think you put it in the notes, the freedom not to listen, which I really like. I like that phrase because he has the freedom to say dumb stuff and I have the freedom not to listen. I have the freedom to walk away. I get where people are saying that he's influential and he might influence people too. But I don't think he's going to influence people to come to that idea who had not already felt that way. Because I'm not sure that people are taking their political advice from Kanye West, you know what I mean, or Ye West. His name is now Ye West and I don't want to misname him or dead name him, that's not proper. But you know what I mean? The skin heads every point it to the guys on the bridge, the skin heads on the bridge with the Kanye West is right. But first of all, they got his name wrong too. But also, they already believed that they didn't

J. Aughenbaugh: No, they were looking for a prominent spokesperson. Fine, they had him.

N. Rodgers: He handed that to them, which is not.

J. Aughenbaugh: Which is fine. But you and I have read newspaper articles that say, Mr West is being canceled, and I'm like, yes, that's what happens in the marketplace of ideas.

N. Rodgers: When people don't like you, you get tinted.

J. Aughenbaugh: In this particular instance, it's a bunch of corporations who let's be fair.

N. Rodgers: Made a lot of money from him first.

J. Aughenbaugh: They made a lot of money associating with his music, his clothing brand. They thought he was a savvy business person. Professional athletes are not going to go ahead and sign up with an agency to represent them if they don't think that the agency is going to get them maximum value with their contracts or enough. But when he engages in speech that corporations don't like, guess what the corporations have the right to do?

N. Rodgers: Walk away.

J. Aughenbaugh: Walk away.

N. Rodgers: Which is what they did. I think it's a little hypocritical because I agree with you.

J. Aughenbaugh: It's terribly hypocritical.

N. Rodgers: I mean, corporations regularly work with people that are sketchy

J. Aughenbaugh: That are bigots, antiSemites, etc. But when it becomes public and it might hurt their brand, then they walk away. Likewise, if you're an individual and all of a sudden you started listening to one of your friends who starts saying some stuff where you're like, you're racist

N. Rodgers: That's crazy town and I'm not going to be involved in that speech, in that hate speech. That's when you start ghosting them, that's when they text you and you're like, sorry, my phone is dead. Bye. You don't want to have anything to do with them.

J. Aughenbaugh: Again, you have a choice.

N. Rodgers: Right

J. Aughenbaugh: You can either try to engage them and hopefully show them the error of their thinking and their speech, or ultimately you can go ahead and say, I don't like that speech, I don't want to hear it. I don't want that negativity, I don't want that prejudice in my life. You walk away. Again, freedom of speech is also the freedom to walk away.

N. Rodgers: I think what we're trying to get across with this episode is that the onus for disciplining that speech is on us as people, not the government.

J. Aughenbaugh: Yes

N. Rodgers: It is on us to say to other people, that's just wrong, you are wrong buddy and you need to get out of here. It's not okay for you to say those things. I disagree, I don't find that acceptable. In the case of hate speech, I'm going to disallow you by not giving you my attention. Because truly attention is what is as much commercial as money. Why? The whole point of Google is to sell your attention, it sells your attention to advertisers. The way you hurt Google is by going off of Google and not looking at the ads.

J. Aughenbaugh: Yes.

N. Rodgers: Similarly, the way you hurt Kanye West is you don't buy his albums, you don't buy his clothing line, you're an athlete and you pull out of his services. All those things to help get his attention to say, this is unacceptable speech, you don't get to do this. I've seen calls for government intervention. Somebody should stop him. Yes, somebody should. It's the 330 other million people living in this country who can stop that by saying that's not an acceptable way to talk about people.

J. Aughenbaugh: Yeah. Nia, you and I are of a generation to give an analog. You and I are of a generation when rap music was first being made.

N. Rodgers: Yes.

J. Aughenbaugh: Some of the early rap music in particular had rather explicit lyrics. For instance, their depictions of women were particularly sexist, advocating violence in some songs. Their descriptions of women were frequently as sex objects or sex toy, play things. Remember in the 1980s, there was an effort to go ahead and ban that music or to put warning labels.

N. Rodgers: Yes, Tipper Gore and her warning labels not just on rap albums, on all albums that were perceived to be.

J. Aughenbaugh: Sexually explicit lyrics.

N. Rodgers: Or violent lyrics.

J. Aughenbaugh: Or violence, etc. The thing that always struck me about that was if you don't like the music, don't listen to it. Because if you're not buying it or in today's music marketplace, if you're not downloading it, then you're sending a very clear message. In the marketplace of ideas, you're sending a very clear message.

N. Rodgers: Well, if labeling things and banning things is the way you want to drive your society democratically, then who decides which ideas get banned and which ideas don't? That's Scalia's point in the Supreme Court cases. But that could be used against causes that you like.

J. Aughenbaugh: Yes.

N. Rodgers: That sword cuts both ways, that sword is edged from on both sides. Kanye West saying despicable things about Jews is unacceptable. But what if we get an autocratic leader who says, saying despicable things about Jews is great, we want to encourage that. We want encourage anti-Semitism. Then you want to stop that speech. It's a weird.

J. Aughenbaugh: Well, and we've had periods in our country where we have tried to target, ban, arrest individuals who wanted to discuss ideas like socialism.

N. Rodgers: Communism.

J. Aughenbaugh: Communism.

N. Rodgers: Joe McCarthy and his Red Scare.

J. Aughenbaugh: The Civil Rights Movement.

N. Rodgers: Exactly. Let's get rid of Jim Crow. No, we're not. I mean, if the South had, had a vote, that wouldn't have happened.

J. Aughenbaugh: You had individuals who were advocating for equal rights for African Americans, that was speech and they were being arrested, they were being thrown in jail because they were creating a disturbance. We have to be careful about this.

N. Rodgers: We wanted those people to have free speech and be able to call out the system and say all the things that needed to be said.

J. Aughenbaugh: That's right. That's what Scalia was getting at in the majority opinion in RAV versus St Paul, which is the government doesn't get to pick and choose whose viewpoints are allowed and whose aren't.

N. Rodgers: Which speech to chill

J. Aughenbaugh: That's right.

N. Rodgers: That's up to us as citizens.

J. Aughenbaugh: Yeah. You used a very important word that the Supreme Court oftentimes talks about in free speech cases, which is, is the government engaging in behavior that will have a chilling effect on speech.

J. Aughenbaugh: You may not always like it, and Lord knows. Listeners, if you tune into this podcast, you know Nia and I at times are just like, wow, some of these ideas are just crazy, but the purpose of this podcast is civil discourse. We want more speech, so we can go ahead and figure out what is good speech, what is productive speech, what is meaningful engagement? You don't get that if some folks, their ideas, their thoughts are not allowed

N. Rodgers: Right. Because at some point then eventually becomes that we're not allowed to say that those ideas are bad.

J. Aughenbaugh: Yes.

N. Rodgers: That's the long end of that arc, is that you get to the far end of. The government's now not allowing you to say that the government sucks, which that's one of the best things about democracy, is that you get to say that the government sucks and nobody comes to your house and does things to you. I'm just going to suggest that there are places in the world where you don't get to say the government sucks. You can say it once and then nobody ever hears from you again. We want as much free speech as we could. Do we want hate speech? No, of course we don't. We want people to be civilized and decent, and honorable and kind, but guess what? Some people aren't.

J. Aughenbaugh: Yeah. Okay.

N. Rodgers: Do we want to live in a society where we set some norm and then we adhere to that?

J. Aughenbaugh: Yes.

N. Rodgers: To some extent that causes people to be disappeared or go off to be re-educated in prison, like that whole re-education thing that happens in some countries. I'm looking at UCI.China, but other places. We don't want that. We want people to be able to say and frankly, I want people to say dumb stuff in public because it's easier for me to dismiss them than if they're being really clever and they're having some underground movement. I would rather see a person, I hate to say this. I'm just going to say it out loud and politics be damned. I would rather see you in your white sheet than go to the bank and have you tell me you won't give me a loan if I were African-American or whatever, without giving me a chance to know who my enemy is.

J. Aughenbaugh: Yes.

N. Rodgers: You know what I mean.

J. Aughenbaugh: Yes.

N. Rodgers: He's clearly just made himself who he is. He's put himself out there in public and now Jews can go, well, we know who you are. It's less scary than if he pretended to be one thing when he felt something else.

J. Aughenbaugh: Yeah.

N. Rodgers: Also we're dealing with somebody who may not be mentally well. That's the other flip of this.

J. Aughenbaugh: That's the other thing. How do you know if somebody is sick? When I say sick, they are suffering from a mental or emotional condition and they need help, if they are not speaking publicly.

N. Rodgers: If they're not allowed to, then how will we know that they were not well?

J. Aughenbaugh: How do we know the extent to which we have a problem with racism or sexism or anti-Semitism if those individuals are only speaking in private to one another?

N. Rodgers: If they're driven underground. One of the scariest things about white supremacy in this country is that it is so underground in many instances. We have no chance to hopefully educate those folks or help them come to a different point of view because we don't know who they are.

J. Aughenbaugh: Yes. Is there the potential that, that speech can win supporters if somebody goes public? Yes. There is that potential downside.

N. Rodgers: Will there be some people who were influenced by him perhaps? But I would like to believe that what Kanye West did was announce that he is mentally not well. That people will feel like, that's not a person whose advice I should take.

J. Aughenbaugh: Yes.

N. Rodgers: That's my hope for him.

J. Aughenbaugh: For some of you who are listening to us, you might go out and say, well, Aughie and Nia, I think their optimism is unfounded. Fair enough, but then we can have a conversation as to why you think our optimism is unfounded.

N. Rodgers: If we have greater societal problems, then Kanye West is a tiny drop in the larger bucket of things that we need to work on. We need to solve the problems we have. I'm not entirely certain that the problem is actually Kanye West. There much is the problem is this weird belief system that people have that Jews somehow control things. I'm like, if Jews control things, why would they have been chased from country to country in pogroms? That doesn't make any logical sense.

J. Aughenbaugh: The amount of human sacrifice that they've endured.

N. Rodgers: Would imply that they're really not this powerful cabal. What are you talking about?

J. Aughenbaugh: That is a means and a relationship or process. I'm like, really, an entire group of people was willing to endure that kind of human sacrifice, so they eventually can go ahead and control the world? I'm like, think about that.

N. Rodgers: Or run Hollywood. Really, that's what you're going to do that for, to run Hollywood, one of the most plastic places on Earth? No offense, Hollywood, we love you, but you are what you are. But anyway, what we would like for folks to do, we're going to link to the case. We'd like folks to take a chance and look at the case and really think about hate speech in terms of government intervention and whether you really want the government to intervene. We would urge you to reconsider if that's what you think because that might be a dangerous precedent to set.

J. Aughenbaugh: Well, in particular, because what if your group is not in control of the government?

N. Rodgers: Exactly. What if you're in the out-group and then all of a sudden that's hate speech that's geared towards you, that you're.

J. Aughenbaugh: That's one of the great things of having a freedom of speech protection, is that if the majority doesn't like your speech, your speech is still protected.

N. Rodgers: I was going to say too bad. Too bad if the majority doesn't like your speech. Again, we come back to the idea that we control that as consumers, as fellow citizens. It is up to us to say to somebody, that's not acceptable. What are you talking about? In fairness to a lot of people including Kim Kardashian who I often dunk on. A lot of people came out and said, boy, that was just totally unacceptable. What's wrong with you. You can't go around saying stuff like that, that's completely wrong. She was immediate in her response. She was very quick to respond and say, I stand with Jews around the world and this is an unacceptable thing to say. Normally, I don't give her much credit, but I will give her credit for that. I give her credit for being a businesswoman because man, she turned a sex tape into an empire. That's amazing, but it's not about her. It's about speech. Again, comes back to things that we've talked about. I know we're going to go here briefly, but this idea of Twitter and people's speech being banned on Twitter. Twitter is a company and they can ban whatever they want. Now, they have a new owner. There's new sheriff in town apparently carrying around a sink. I guess he walked in and said, let this sink in. I'm carrying a big sink, I'm like, wow, you're just PT Barnum all over again.

J. Aughenbaugh: He can't help himself.

N. Rodgers: He can't, but there's discussion about whether Twitter will become outright or it'll be all this other stuff. I'm like, well, it's a private company. If you don't like Twitter, get off.

J. Aughenbaugh: Stop using it.

N. Rodgers: If Twitter turns into something you don't like because of Elon Musk's new ownership style, then don't be on Twitter anymore. I don't fathom this whole idea. Your power is in your purse and in your vote, and in your feet. When you don't like things, and people say there should be term limits for public officials, I'm like well, there are. They're called elections.

J. Aughenbaugh: Yes. If you really don't like an incumbent, find somebody to run against them or you do it.

N. Rodgers: Work against them in whatever way that, go knock on doors, go be the candidate, go be whatever. We're in that season of election where this is the whole point of democracy. If you don't like what Kanye West said, don't buy his albums, don't buy his stuff. Don't listen to him. Your lack of attention will hurt him more than anything else.

J. Aughenbaugh: Yeah. Because so many Jews people.

N. Rodgers: What they're really after is attention.

J. Aughenbaugh: Yeah. They're narcissistic. They're egomaniacal.

N. Rodgers: Excellent point. So are we but in much less quantities, I would think.

J. Aughenbaugh: Because we really like our downtime and our privacy way too much.

N. Rodgers: Yeah. I can't imagine being a movie star. I never wanted to be a movie star because I can't imagine somebody taking my picture. Oh my gosh. I don't like having my picture taken when I know it's going to happen let alone I'm walking into Starbucks. Anyway. Thanks so much.

J. Aughenbaugh: Yes. Thank you.

N. Rodgers: I appreciate you helping me with this In the News.

J. Aughenbaugh: Thanks, Nia.