Discussions of free speech in the United States often call upon the adage—misattributed to Voltaire—that “while I disagree with what you have to say, I will defend to the death your right to say it.” (The quote in fact comes from Evelyn Hall, who wrote a biography of the French philosopher.) It’s a succinct summary of a the cherished American idea that speech should not be abridged because we find its content objectionable.
But according to New York University Law Professor Jeremy Waldron, it’s severely flawed.
In The Harm in Hate Speech, published this month by Harvard University Press, Waldron argues that freedom of speech in the United States is so absolute, both in law and in public opinion, that we lack meaningful regulation against speech intended to demean or vilify minority groups—what we casually refer to as “hate speech.” Hate-speech laws, Waldron notes, are “common and widely accepted” in every other advanced democracy. But in the United States, Waldron says, those who support such a principled, absolutist stance do so at the expense of the communities that hate speech targets. The Harm in Hate Speech is the fullest embodiment of arguments that Waldron has been developing for years, in book reviews, papers, panels, and lectures. Waldron, who was educated in New Zealand and Britain, is in many ways fighting an uphill battle against the prevailing American opinion, both academic and otherwise. Among academics, Waldron notes that his colleague and former teacher, the much-esteemed philosopher Ronald Dworkin, is openly critical of his views. And as for those outside the ivory tower, Waldron gives entertaining anecdotes of receiving less-than-friendly speech himself after publishing some of these arguments, including an email accusing him of being, in all capital letters, a “TOTALITARIAN ASSHOLE.” Waldron himself, though, is no intellectual lightweight, and admirably battles the headwinds created by those who have come before him.
While it delves into legal theory and history, Waldron’s treatise is primarily a philosophical defense of hate-speech regulation. He argues that hate speech is an “environmental” problem that pollutes the atmosphere of security and dignity that society should provide to all its members:
In a well-ordered society … everyone can enjoy a certain assurance as they go about their business. They know that when they leave home in the morning, they can count on not being discriminated against or humiliated or terrorized…they can face social interactions without the elemental risks that such interaction would involve if one could not count on others to act justly.
Speech intended to intimidate or malign destroys this assurance. What’s more, it allows racists and radicals to send an important message to each other: You’re not alone. The law, says Waldron, has an interest in protecting the social environment by prohibiting such statements.
There are many responses to this argument, and Waldron is scrupulously honest as he mulls opposing views. He acknowledges that “dignity” is a broad term—too broad, according to some. He details Dworkin’s argument that hate speech is a necessary evil to maintain the legitimacy of anti-discrimination laws, as a democratic government should not ban any kind of speech that helps form our collective opinion on legislation. Unsurprisingly, Waldron concludes that none of the major arguments against regulating speech are compelling. There are cases of hate speech—a burning cross, or a sign that says “Fuck Muslims”—that either do not advance a political stance at all, or only advance one which could also be expressed in a less hateful way. “One can challenge a law against discrimination without engaging in hate speech,” he writes, “and, indeed, one can challenge a hate speech law without engaging in hate speech.” Rather than treat freedom of speech as absolute, Waldron advocates an approach that weighs free-speech rights against their effects: One’s right to free speech ends where “significant” harm to society begins. While there are some existing restrictions to free speech in the U.S., they usually focus on the “time, place, or manner” of the speech in question—shouting “fire!” in a crowded theater being Oliver Wendell Holmes’s famous analogy for speech that is dangerous primarily because of its immediate effects. Waldron, though, consciously argues that under his view of the social harms of hate speech, it’s not enough to regulate speech that is likely to cause imminent harm in the form of a fight or a riot. Under his view, the content of hate speech is itself harmful, and bans on hate speech should therefore be content-based.
The question, of course, is where to draw the line. The balancing approach is most persuasive when Waldron’s examples of hate speech are extreme. But Waldron is disconcertingly ambiguous about where the law should fall in less-extreme cases. When discussing the 2005 controversy in which a Danish newspaper published cartoons depicting Muhammad as a bomb-throwing terrorist, Waldron says “where there are fine lines to be drawn the law should generally stay on the liberal side of them.” Yet Waldron describes how it would be defamatory to publish a statement saying “Tea Party politicians cannot be trusted with public funds,” or “Tea Party politicians are dishonest,” ignoring arguments mentioned elsewhere in the book that speech about elected officials should be given the widest freedoms. And in an interesting but underdeveloped chapter, Waldron draws an analogy between defamatory speech and pornography, arguing that sexualized images—including television, billboard, and subway advertising—undermine society’s assurance of equality to women. What he seems to suggest is that it would be more legitimate to outlaw lingerie ads or broad statements about political leaders than to prohibit the Danish cartoons—a strange vision of “balance,” and not one that errs on the side of liberalism.
In lieu of detailing what policies in particular he would support, Waldron argues that “legislative policy is often complicated,” and says that an insistence on “rule-like clarity” for all of those in his position would prevent the conversation from getting off the ground. But Waldron is not just proposing a law; he’s created an underlying theory of why hate speech is damaging. Under the circumstances, it is reasonable to ask for a deeper exploration of what policies based on his worldview would look like. While Waldron focuses mainly on printed material, for instance, it’s clear that all different kinds of speech—pundits on TV or talk radio, teachers, parents, or strangers—can contribute to a toxic social atmosphere. Waldron writes that “the tiny impacts of millions of actions—each apparently inconsiderable in itself—can produce a large-scale toxic effect.” It seems that under such a view, hate speech regulation could only be effective if it was incredibly pervasive—touching on all of the millions of actions that make up the social atmosphere. Does this mean regulating private speech? How would such laws be enforced? These questions are relevant to Waldron’s mission, but go unanswered.
One alternative that Waldron does not spend much time discussing is that hate speech can be dealt with socially rather than legally. Waldron dismisses this briefly as the “fight speech with more speech” view. But consider the movement for LGBT rights, which has made gains through emotional engagement and reasoned arguments in communities around the country. Waldron is right to argue that we should not put the burden of fending off hate speech on the communities it targets. But he never really addresses the notion that the burden ought to be taken up by society at large. That is easier said than done—the U.S. has clearly failed to meet that burden at different points in history. But if social equality is determined by millions of daily interactions, the law will never be able to construct it out of thin air—it will depend instead on our continued support of equality in our day-to-day lives. While we should continue to protect the free speech of those we disagree with, The Harm in Hate Speech makes a compelling case that they are not the only ones who need defending.
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