Should Hate Speech Be Outlawed?

Former Justice John Paul Stevens reviews Jeremy Waldron's The Harm in Hate Speech in the NYRB:

...Waldron reviews his debate with Anthony Lewis about freedom for the thought that we hate. Lewis argues that we should learn to tolerate hate speech because codes regulating it would create a danger of overenforcement that could seriously threaten the expression of unpopular ideas. Waldron believes Lewis undervalues two points: first, that what is regulated by hate speech laws is not hateful thought but hateful expression (a point that seems unimportant to me, since thought and expression are closely intertwined in this context); and second, as Waldron often repeats, that toleration of ugly speech is easier for liberal bystanders than for the target of the speech.

Waldron and Lewis agree, however, that “Americans are freer to think what we will and say what we think than any other people.” They also agree, up to a point, about the history that led to that freedom. In 1798, when Congress enacted the Alien and Sedition Act, the United States was a young country and federal authority was precarious:

George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York…. Republican militias armed and drilled openly, ready to stand against Federalist armies. Over everything, like a specter, hung news of the Jacobin terror in France. It was by no means obvious in those years—though it seems obvious to us now—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave the publication of such attacks uncontested in the hope that they would be adequately answered in due course in the free marketplace of ideas.

It was over a century later—in the aftermath of World War I—that federal judges began to see the power of the state as much more of a threat to the individual than vice versa.

The interesting and informative discussion of history in this chapter omits any comment on the importance of a unique aspect of American history: the fact that during the period under discussion the dynamic growth of America was fueled by immigration of several different ethnic groups, each attracted by the freedom of opportunity here but also each engaged in economic and political competition with other groups of immigrants. What might now be classified as “hate speech” included not merely comments by members of the majority but exchanges between rival ethnic groups.