June 19, 2012
Hate Speech and Free Speech: Jeremy Waldron Responds to Criticisms
Jeremy Waldron over at the NYT's Opinionator:
The issue of hate speech legislation is, in my view, a difficult one. There are good arguments on both sides and, among the respondents, the critics have flagged a number of important issues.
Of course some of the critics are just dismissive: “Is Waldron’s book … a joke?” asked Ron Hansing of Columbus, Mo. “God help us from this kind of thinking!” And Robert Cicero of Tuckahoe, N.Y., wrote: “Shame on the whole lot of you” for even discussing this; the discussion, he said, “is yet one more assault on the US Constitution.” Or as Paz from New Jersey put it, “What part of ‘shall not be infringed’ do you fail to understand?”
But even those who love the First Amendment should be interested in at least understanding the things that can be said on the other side, if only to reinforce their sense of what’s distinctive about this country’s commitments. A large proportion of the other advanced democracies in the world combine a commitment to free speech with rules prohibiting hate speech. Isn’t it worth considering how they do this? And why? No one is burning the constitution here. We’re just trying to think about it.
Democracies like Britain, France, Germany, Denmark, Canada and New Zealand all prohibit hate speech of various kinds. They do so for what they think are good reasons. It is worth thinking about those reasons. Are they good reasons that (from an American First Amendment perspective) are just not strong enough to stand up against our overwhelmingly powerful commitment to free speech? Or are they simply bad reasons?
I think some of the things people cite in favor of hate speech regulation are bad reasons — like trying to protect people from being offended and annoyed. I agree with Stanley Fish about that. But some of the reasons are about dignity, not offense — I spend a lot of time in the book thinking aloud about that distinction — and these reasons are worth taking seriously, even if ultimately we think they are trumped by the value of free speech.
Posted by Robin Varghese at 01:32 AM | Permalink
Comments
"Hate" speech legislation is always a bad idea. Words by themselves should never be banned, by the government, in advance of being said. I can say what I want. If my speech is libelous, for example, or treasonous, then I may be brought before a court. But to give the government the power to ban speech before it is spoken is always wrong.
The obvious effect is to chill free expression. Even if someone was going to say something that they believed was not "hate speech," they will hesitate rather than risk being subjected to the expense and trauma of legal proceedings relating to their speech, even if they eventually prevail in a court.
You also have the obvious problem that "hate speech" legislation is always limited to special interest groups who simply want to ban anyone from saying anything critical about them. Who doesn't want that? But we can't use the government to carry that out without seriously damaging the basic rights of all citizens.
We have gay hate speech laws, making it illegal to say certain bad things about gays. This is justified by saying that there is a history of violence against gays. But what about women? No hate speech protects them, even though they are the largest group of people in the country subjected to daily vicious speech and violence. But women are not an interest group that the government cares about, so no laws for them.
Where do you stop? What if somebody says "I hate Baptists." Is that hate speech? Should they be punished? What if they do hate Baptists. Why can't they say that?
In Europe, they have laws making it illegal for anyone to be a "holocaust denier," although I'm not sure what all is encompassed. Is that a good idea? What if somebody says "I don't believe Jewish people were targeted for murder during World War II." What is so scary about that statement that the speaker should be thrown into prison? They didn't threaten anyone, didn't incite violence or commit violence. What if somebody else says "I believe creatures from outer space live among us." Both statements might be rejected by the majority of the public, but should they be banned by the government?
The argument there would be that it is false information, misleading to the public. So is most of what our government says, most of what the media broadcasts. Should we ban politicians from speaking, shut down tv and radio?
If somebody incites others to violence by speech at a time, in a manner, under circumstances, where it is easily forseeable it would incite violence, then that person may be held accountable. But hate speech is a very bad idea, promoted by small special interest groups for their benefit but ultimately damaging the rights of most citizens.
Posted by: NABNYC | Jun 19, 2012 3:33:05 PM
The First Amendment is intended to protect the free discourse of the people against suppression by the state. Any law limiting such discourse, then, should first be examined through the lens of how it could be used by the state against its enemies.
Example 1: The FBI and other state actors have a long and dirty history of targeting activists in the black community, including MLK, Malcolm X, and many others. Many of these activists have, from time to time, said unkind things about white people that have been interpreted in various quarters as being "racist".
Example 2: Leftist secularist activists often find themselves targeted by the state when they agitate against ties between the government and religious conservative movements. Many of these activists have, from time to time, said unkind things about religious conservatives people that have been interpreted in various quarters as constituting "religious intolerance".
Example 3: Activists for the rights of the Palestinians often find themselves targeted by the state when their activities impede the state's military and geopolitical goals in the Middle East. Many of these activists have, from time to time, said unkind things about the government of Israel that have been interpreted in various quarters as being "anti-semitic".
Is Waldron really so naive as to think that these groups would not be the first targeted by such laws? Or does he not care?
Furthermore, his entire analysis seems to be premised on the notion that everyone deserves "dignity", and that somehow an individual's dignity can be protected while keeping their beliefs, actions, or voluntary membership in a group exposed to criticism and ridicule. This might work in the case of certain immutable characteristics (e.g. skin colour). But it is simply untenable in cases of voluntary choice or even cultural identity. It's trivially easy to think of cases where a group's identity is firmly grounded in beliefs or practices which should, in a free society, be subject to ridicule. (See, e.g., Scientology. Or any other religion.) In a pluralistic society, we all have some control over the cultural trappings we choose to retain, adopt, or discard. Sexual orientation is a characteristic which many believe, reasonably, to be subject to some degree of personal choice. Even race and gender identity are, to some extent, subject to personal decisions. Waldron promises a way to tease the person away from their choices and only leave the latter subject to criticism, but (not having read the book, granted) I'm skeptical that this can ever be done meaningfully.
Finally, even if there were a reasonable way to separate the sinner from the sin, so to speak, the idea that such a subtle distinction could possibly be respected by police, prosecutors, judges, and juries enforcing these laws is preposterous.
Posted by: picador | Jun 20, 2012 5:08:32 PM
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