The Harm in “The Harm in Hate Speech”
posted by Erica Goldberg
Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.
Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.
Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.
Waldron also points out that it’s easy for those who are not the vulnerable targets of hateful speech to champion defending that speech. This is no doubt true. However, many of the most vocal proponents in favor of protecting hate speech are potential hate-speech targets. Consider Jonathan Rauch, whose book “Kindly Inquisitors” vehemently argues that hate speech should remain protected because of the historical connection between free speech and the advancement of ideas. Rauch is openly gay, and therefore belongs to a group that is subject to some of the most vicious and ignorant speech in this country and abroad, a group that literally does not yet have equal standing under American laws. As someone who has felt the sting of anti-Semitic remarks, personally and in the political realm, I shudder at Germany’s laws against anti-Semitic speech. Germany’s hate speech laws are a well-meaning attempt to guard against a repeat of that country’s tragic history, but suppression of pure speech has historically been undertaken by the enemies of Jews – the Nazis, Iran’s president – and usually leads nowhere peaceful. It is not only those who never experience hate speech who reject the solicitude of hate speech restrictions.
As mentioned in April, I formerly worked for the Foundation for Individual Rights in Education. While I was there, the country was fascinated by a campus incident involving what could be described as a clash of free speech and minority students’ sense of equal standing. This incident demonstrated that, instead of feeling victimized, many students are empowered by their collective efforts to speak out against expressions of bigotry. In March of 2011, a student at the University of California, Los Angeles (UCLA) posted a racist rant about the behavior of Asian students at her school on YouTube, and this unintentionally viral video inspired a torrent of creative, and often humorous, parodies challenging stereotypes of Asians. Some of those videos also suffered from a degree of stereotyping or degrading speech against women and against those of European descent. Luckily, the university realized that all of the videos were speech protected by the First Amendment and did not take punitive action against any of the students. I believe the UCLA community has been enriched by this airing of viewpoints.
This country is at a crossroads regarding the extent to which we are willing to sacrifice pure speech for values like public order, the appearance of a just society, and protection from humiliation. Despite the Supreme Court’s recent 8-1 decision in Snyder v. Phelps, which deemed protected against civil damages the noxious, anti-gay, anti-American, undignified, and nonsensical speech of the Westboro Baptist Church when protesting soldiers’ funerals, society’s increased focus on the issues of “cyber-bullying” and harassment in the educational setting has prompted legislation and executive action that may infringe upon protected speech. We are moving closer to defining the hurdle of harassment much lower, at the detriment of free speech, to protect people from offense.
My fear that hate speech regulations, as Waldron defines them, may be deemed constitutionally viable in the future, or that we may slowly chip away at the sense that we cannot restrict pure speech to protect vulnerable individuals or groups, is why incisive and genuinely compassionate, yet easily misused, books like Professor Jeremy Waldron’s should be analyzed and disputed at every turn.