Jeremy Waldron, The Harm in Hate Speech, Harvard University Press, 2012, 292 pp.
First-Amendment guarantees of free speech are a cherished part of the American tradition and set us apart from virtually every other country. They are not without critics, however, and the free speech guarantees under sharpest attack are those that protect so-called “hate speech.” Jeremy Waldron, an academic originally from New Zealand, has written a whole book explaining why “hate speech” does not deserve protection — and Harvard University Press has published it. Prof. Waldron teaches law and philosophy at New York University Law School, is a professor of social and political theory at Oxford, and is an adjunct professor at Victoria University in New Zealand. Perhaps his foreign origins influence his view of the First Amendment.
In this book, Professor Waldron makes just one argument for banning “hate speech.” It is not a good argument, and if this is the best the opponents of free speech can do, the First Amendment should be secure. However, in the current atmosphere of “anti-racism,” any argument against “hate speech” could influence policy, so let us understand his argument as best we can.
First, Professor Waldron declares that “we are diverse in our ethnicity, our race, our appearance, and our religions, and we are embarked on a grand experiment of living and working together despite these sorts of differences.” Western societies are determined to let in every sort of person imaginable and make them feel respected and equal in every way. “Inclusiveness” is something “that our society sponsors and that it is committed to.”
Therefore, what would we make of a “hate speech” billboard that said: “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in”? Or one with a picture of Muslim children that said “They are all called Osama”? Or posters that say such things as “Muslims out,” “No blacks allowed,” or “All blacks should be sent back to Africa”?
Professor Waldron writes that it is all very well for law professors and white people to say that this is the price we pay for free expression, but we must imagine what it must be like for the Muslim or black who must explain these messages to his children. “Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?”
Professor Waldron insists that a “sense of security in the space we all inhabit is a public good,” like pretty beaches or clean air, and is so precious that the law should require everyone to maintain it:
Hate speech undermines this public good . . . . It does this not only by intimating discrimination and violence, but by reawakening living nightmares of what this society was like . . . . [I]t creates something like an environmental threat to social peace, a sort of slow-acting poison, accumulating here and there, word by word, so that eventually it becomes harder and less natural for even the good-hearted members of the society to play their part in maintaining this public good.
Professor Waldron tells us that the purpose of “hate speech” is to try to set up a “rival public good” in which it is considered fine to beat up and drive out minorities.
When we talk about politics or religion, we can be as rough as we like, but the “public good” of racial tolerance is different: “It is a recent and fragile achievement in the United States, and the idea that law can be indifferent to published assaults upon this principle seems to me a quite unwarranted extrapolation from what we have found ourselves able to tolerate in the way of political and religious dissent.”
“Diversity” and “inclusiveness” are so wonderful but fragile that maintaining the “dignity” of “vulnerable minorities” (Professor Waldron loves this expression) is a positive obligation not only for government but for individuals. The law should therefore require us to “refrain from acting in a way that is calculated to undermine the dignity of other people.” As Professor Waldron explains:
What is important is that citizens have a public assurance that this is so [that they all be equally accepted], and that this public assurance be provided not just by the government and the laws, but by citizens assuring one another of their willingness to cooperate in the administration of the laws in the humane and trustful enterprise that elementary justice requires.
Professor Waldron concedes that in most cases, one would consider muzzling speech only if it leads directly to violence; someone shouts “she’s a witch,” and the mob beats her. He believes “hate speech” can lead to violence, but it need not have any consequences at all for it to work evil so horrible it must be prevented by law. To those who say minorities will just have to go about their business despite “hate speech,” Professor Waldron replies:
But the point of a general and implicit assurance given by society to all of its members, sustaining their ordinary dignity, is that it should not be necessary for them to laboriously conjure up the courage to go out and try to flourish in what is now presented to them as a partially hostile environment. To the extent that the message conveyed by the racist already puts them on the defensive, and distracts them from the ordinary business of life with the grim determination to try and act like a normal citizen against all the odds — to that extent, the racist speech has already succeeded in one of its destructive aims.
Professor Waldron is saying that to have planted the thought in the mind of a “vulnerable minority” that someone doesn’t want him around is as damaging as a physical assault and therefore should be a crime.
Despite this astonishing position, Professor Waldron insists that he is not advocating laws that protect against being offended. He says people should be allowed to be as offensive as they like, but that offense-giving is so radically different from his concept of undermining “dignity” that anyone who cannot see the difference is guilty of “studied obtuseness.”
I tried very hard to see the difference, and the best I could make out is this: It is OK to attack a religion or its founder but not its believers; we can go after Islam or Mohammed, for example, but we must protect the “dignity” of Muslims. I cannot figure out how this distinction applies to race. Professor Waldron gives no examples of how we might give infinite (but permissible) offense to blacks without undermining their “dignity.” I don’t think, by his way of thinking, that would even be possible.
In any case, Professor Waldron’s “vulnerable minorities” can’t see the difference any better than I can. The Danish cartoonist Kurt Westergaard drew the famous picture of Mohammed with a bomb in his turban, but never said anything unkind about Muslims. Danish Muslims have tried to kill him several times anyway, and he lives under constant police scrutiny in a special, attack-proof house. Muslims clearly see no difference between giving offense and undermining “dignity.”
If Professor Waldron has another idea besides “dignity” as a “public good,” it would be that just as the law protects individuals from libel, it should protect groups from libel. He notes approvingly that the Canadian province of Manitoba prohibits group libel, and that there is even a Supreme Court precedent that recognizes it as a crime: the 1952 decision in Beauharnais v. Illinois.
In 1950, Joseph Beauharnais, president of something called the White Circle League of America, distributed segregationist leaflets in Chicago that said, in part:
We are not against the negro; we are for the white people, and the white people are entitled to protection. . . . [and should unite]. If persuasion and the need to prevent the white race from being mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, SURELY WILL.
The pamphlet did not call for violence, nor did it cause any. Nevertheless, Beauharnais was found guilty under a 1917 Illinois law that forbade any writing that portrayed the “depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed, or religion,” and was fined $200. The US Supreme Court upheld the Illinois law in a 5-4 decision. Justice Felix Frankfurter called the pamphlet “criminal libel” against a group.
That was curious reasoning. Beauharnais never said all blacks are rapists and robbers. He may not even have been saying that they were more likely than whites to be rapists or robbers. It sounds to me that he was saying that when blacks rape or rob whites that will unite whites.
Professor Waldron concedes that to say that some blacks are rapists or robbers is not group libel, but insists that saying such behavior is characteristic of blacks should be libel (he is silent on the question of race differences in crime rates).
But what if Beauharnais really had said that every single black is a rapist, robber, and gun- and knife-toting dope fiend? That is obviously false, and Professor Waldron says that just as the law punishes false statement about individuals, it should punish false statements about groups. That is silly. If someone says I am a gun-toting dope fiend, it is not obviously false — my reputation could suffer — but no one is going to believe such a statement about a whole race of people.
Professor Waldron points out that many legal scholars claim Beauharnais has been effectively overturned by the 1964 New York Times v. Sullivan decision, according to which public figures cannot recover damages unless they can prove reckless disregard for the truth. I think Professor Waldron is right to argue that this ruling has nothing to do with group libel, and that the Beauharnais precedent still stands, at least in theory.
Professor Waldron points out that the First Amendment has not always been interpreted as expansively as it is today, so it might be possible to ban “hate speech” without doing much damage to precedent. He mentions prosecutions under the Alien and Sedition Acts of 1798, and cites the 1823 case of a Massachusetts man who was jailed for denying the existence of God. He writes that when courts in the mid-19th century struck down blasphemy laws, they did so on anti-establishment grounds, not free-speech grounds. Blasphemy could be punished only as long as Christianity was considered an indispensable support of government.
Even more to the point was the Supreme Court’s support for the Espionage Act during the First World War. Oliver Wendell Holmes upheld a jail sentence for a man who opposed the draft, likening it to slavery. Holmes wrote that government could not carry out its business in a political environment that was “polluted” (Professor Waldron’s word) with this kind of talk. This thinking is eerily similar to Professor Waldron’s theory that “hate speech” “pollutes” the atmosphere the government has so carefully constructed to protect the “dignity” of minorities.
It was not until the 1930s that the Supreme Court began to interpret the First Amendment in the way most people understand it today. Professor Waldron helpfully adds that its language can therefore be reinterpreted, or the Constitution amended.
This book argues that “hate speech” might conceivably have a justification if it represented one side of a question that was still unresolved — in other words, if “hatemongers” had anything even faintly plausible to say — but this is not so: “In fact, the fundamental debate about race is over — won; finished.” Race is “no longer a live issue.” Diversity is glorious, the races are interchangeable, and any white who wants to live among other whites is a hatemonger. Professor Waldron would say that these ideas are now part of the “settled features” of our way of life, and so to crush dissent takes nothing away from the search for truth or legitimate debate.
Breathtaking, isn’t it? And yet Professor Waldron is not so confident after all. He explicitly rejects the argument that in the “marketplace of ideas” the good drives out the bad: “We do not buy into the assumption that truth will eventually prevail in the marketplace of ideas, or the assumption that the best remedy for bad speech is more speech.”
But how can this be, if “the fundamental debate about race is over”? If race is “no longer a live issue” even “vulnerable minorities” should shrug off “hate speech.” If, as Professor Waldron insists, the lives of minorities are blighted by the merest whiff of “hate,” race must not be a “settled question” at all.
Given that Professor Waldron’s views are so fragile they requires the support of censorship, he may have tipped his hand as to his true motives when he touches on another reason for banishing certain kinds of speech: “[W]e want to convey the sense that the bigots are isolated, embittered individuals, rather than permit them to contact and coordinate with one another.” Stop “bigots” from contacting each other or working together? What happened to high-minded concerns about “dignity”? This is nothing more than Soviet-style censorship.
In fact, Professor Waldron tips his hand throughout this book. First, he cannot conceive of anyone who would disagree on the subject of race without being a “hater.” He cannot conceive of a white man (or a Japanese or a Nigerian) who wants to be left alone to enjoy the society built by his ancestors. He cannot conceive of a white man who appreciates his own race but does not want to do violence to people of other races. This pitiable closed-mindedness turns Professor Waldron into the very monster of hate he thinks he is combating.
Consider how he writes about his opponents. They are “hatemongers” who “pollute the social environment” with their “poisonous ideals,” “grotesque defamations,” “vicious insults and vituperations,” “foul denigrations,” and “vicious characterizations.” They “sit smoldering in their dens,” “screaming vile insults.” They are “foul and vicious,” “viciously vituperative,” “hateful and virulent.” The “hate speaker” “spits out his hated” and “his loathing” as he “defaces and pollutes the environment.”
Whew! Joe Beauharnais could have learned something about hate from this book.
Professor Waldron tells us that “hatemongers” “bestialize” people, and he writes happily of a British judge who jailed a man who put up posters likening black people to monkeys. But Professor Waldron “bestializes” his opponents, too. He writes that permitting “hate speech” means the “bigots” can contact each other and we must live in wretchedness “as the wolves call to one another across the peace of a decent society.” “Racists” are like wolves. Champions of tolerance are so consumed with hatred they are not even aware of what they are doing.
Professor Waldron destroys his argument in other ways. In his attempt to distinguish between giving offense and undermining “dignity,” he tells us he thinks the views held by many Tea Party members are “socially dangerous.” He says we may offend Tea Partiers by attacking their views, but we should not be allowed to attack them personally by saying that Tea Party politicians are dishonest or should not be trusted with public funds: “That would be a scurrilous attack on what I have called their elementary dignity in a society” and should therefore be illegal. Practically every day someone tells us Republicans are selfish swine who care only about the rich. Anyone who thinks people should be fined or jailed for saying something like that is a kook.
Professor Waldron makes another terrible argument for “dignity:” “[P]ornography says that women are a lower form of human life . . .” and “makes a massive difference to the environment in which women have to lead their lives.” “Hate speech” damages minorities in exactly the same way and should be banned just as pornography should be banned. Hardly anyone thinks pornography makes a “massive difference” to a woman’s environment, and very few people are trying to ban it.
But let us overlook Professor Waldron’s bad arguments, his ignorance about race, and his uncontrollable hatred for people with whom he disagrees. People who are attracted to his “dignity” idea will not hold that against him, so we should examine it as if Professor Waldron had been better able to control himself.
First, does “hate speech” really demoralize “vulnerable minorities”? This is his central argument, but he doesn’t give a shred of evidence for it.
When non-whites first began coming to Britain in the 1950s, many whites didn’t like it. They wrote “Wogs out” on walls, and there was just enough anti-Asian violence for the press to write about “Paki-bashing.” If these assaults on “dignity” were as crushing as Professor Waldron says, Asians would have gone home. Instead, they kept pouring into Britain. “Vulnerable minorities” continue to pour into the United States, too, despite an absence of “hate speech” laws.
In fact, “hate speech” often has the opposite effect of the one Professor Waldron claims: liberals beat their breasts and shower minorities with sympathy. That is why so much “hate” is phony. A single graffito can send an entire college campus into paroxysms of white guilt that can be milked for important advantages. If “hate speech” does not exist it has to be invented.
Professor Waldron also insists that he doesn’t want to ban the content of “hate speech;” only “hateful” expression. He says most speech-muzzling laws “bend over backwards” to ensure that “racists” can “restate their racism or their contempt . . . in more moderate terms, less calculated to stir up hatred.”
And yet the examples of “hate speech” Professor Waldron would ban are not “vituperation.” “All blacks should be sent back to Africa,” is a statement of an opinion. Would this alternative be more acceptable? “Given the low average IQ of blacks, their unwillingness to assimilate, the disinclination of whites to seek their society, and persistent racial tensions, we think blacks and whites should separate and the best place for blacks is Africa.” If “don’t let Muslims in” were vituperative “hate speech,” it would be hard to know how to rephrase so as to satisfy Professor Waldron. Despite Professor Waldron’s denials, it certainly seems he wants to ban opinions just as much as “hateful” forms of expression.
Also, if Professor Waldron really cares about the “dignity” of minorities he should be more worried about carefully reasoned arguments than caricatures. Many blacks would probably be more bothered by a public discussion of race differences in IQ than by an insulting poster. Whether Professor Waldron likes it or not, there is only one way to protect “dignity,” and that is to outlaw certain opinions, ideas, and facts.
This book leaves many important questions unanswered. It never defines “hate speech,” so we don’t know what to ban. Does the speaker’s intent matter or only his words? Do we punish only white people or do we punish “vulnerable minorities” who insult other “vulnerable minorities”? Are any minorities not vulnerable? What happens when whites become a minority? What about the white minorities who live in Detroit or attend the St. Louis public schools? Professor Waldron appears not to have thought through any of this.
Professor Waldron reports that fine countries such as France, Germany, Australia, New Zealand, South Africa, Britain, and Denmark limit free speech and that the United States is out of step. He cites international agreements that say certain kinds of speech “shall be prohibited by law,” and tells us “the international human-rights consensus cannot be lightly dismissed.” He makes all the arguments he can think of about “dignity” and “pollution” and “hate,” and then — without explanation — tells us he isn’t really sure the United States even should pass “hate speech” laws!
This is already a bad book, full of bad arguments. To add this disclaimer suggests another defect: dishonesty.