The Harm in Hate-Speech Laws
[The Harm in Hate Speech • By Jeremy Waldron • Harvard University Press, 2012 • vi + 292 pages]
In many countries, though not in the United States, laws prohibit "hate speech." Those who, in Jeremy Waldron's opinion, uncritically elevate the benefits of free speech over competing values oppose hate-speech laws; but Waldron thinks that a strong case can be made in their favor. (Waldron thinks that there are "very few First Amendment Absolutists" [p. 144] who oppose all regulation of speech; but he thinks that many other First Amendment scholars are unduly critical of hate speech regulations.) Waldron is a distinguished legal and political philosopher, but the arguments that he advances in defense of hate-speech laws, taken on their own terms, do not seem to me very substantial.
Hate speech, Waldron tells, us, consists of "publications which express profound disrespect, hatred, and vilification for the members of minority groups" (p. 27). "Speech," it should be noted, is used here in an extended sense; and it is the more lasting written material, movies, posters, etc, that principally concern Waldron rather than speeches, verbal threats, or imprecations, though the latter are not excluded. Many countries ban such speech:
The United Kingdom has long outlawed the publication of material calculated to stir up racial hatred. In Germany it is a serious crime to display the swastika or other Nazi symbols. Holocaust denial is punished in many countries. The British author David Irving … was imprisoned until recently in Austria for this offense. (p. 29)
One way to respond to this would be to assess hate-speech laws from the Rothbardian position that I deem to be correct. This would make for a very short review. For Rothbard, free-speech questions reduce to issues of property rights. If, for example, someone writes "Muslims get out!" on a wall, a Rothbardian would ask, "Whose wall is it?" If the author of the message wrote on his own wall, he acted within his rights; if, lacking permission, he wrote on someone else's wall, he violated the owner's property rights. People have no general right of restraint against insult. Furthermore, you do not own your reputation, since this consists of the ideas other people have of you, and you cannot own other people's thoughts. For that reason, laws against libel and slander are for the Rothbardian ruled out. Waldron asks, If laws forbid libel of a person, why not laws against group libel as well? A more un-Rothbardian argument could hardly be imagined.
I think it would be a mistake to leave matters there. Waldron — and those like him who reject libertarianism — would be unlikely to take notice of the foregoing criticism. But another line of inquiry might be of more interest to them. We can also ask how good Waldron's arguments are if judged on their own merits rather than evaluated from an external perspective.
If we ask this question, we must first deal with a difficulty. Waldron's exact position is rather elusive. For one thing, it is not altogether accurate to say that he defends hate-speech laws, though this is certainly the general tenor of his book. He sometimes confines himself to saying that there are considerations in favor of these laws: these would need to be weighed against reasons for not restricting speech.
My purpose in putting all this in front of you is not to persuade you of the wisdom and legitimacy of hate-speech laws.… The point is … to consider whether American free-speech jurisprudence has really come to terms with the best that has been said for hate speech regulations. (p. 11)
But I do not think it admits of much doubt that for Waldron the arguments in favor of these laws are decisive.
Why, then, should we restrict hate speech? The primary consideration is that it assaults human dignity. In what Waldron, following John Rawls, calls a "well-ordered society," there is "an assurance to all the citizens that they can count on being treated justly" (p. 85). But hate speech disrupts this assurance.
However, when a society is defaced with anti-Semitic signage, burning crosses, and defamatory racial leaflets, that sort of assurance evaporates. A vigilant police force and a Justice Department may still keep people from being attacked or excluded, but they no longer have the benefit of a general and diffuse assurance to this effect [of being treated justly], provided and enjoyed as a public good, furnished to all by each. (p. 85)
This goes altogether too fast. If you encounter a pamphlet or sign hostile to your minority group, why would you conclude anything more than that someone wishes you and those like you ill? Would not the hostile view be merely one opinion among large numbers of others? Why would it suffice to weaken your sense of assurance that you were an equal member of society?
Waldron, fully aware of this objection, responds that it neglects the effects of contagion. Even though the effect of an individual hate message may be small, the message signals to other haters that they do not hate alone. The accumulation of many such messages may indeed serve to undermine the assurance of the harassed minority.
In a way, we are talking about an environmental good — the atmosphere of a well-ordered society — as well as the ways in which a certain ecology of respect, dignity, and assurance is maintained, and the ways in which it can be polluted and (to vary the metaphor) undermined. (p. 96)
Waldron elucidates the parallel that he draws between hate messages and environmental pollution in this way: We see that the
tiny impacts of millions of actions — each apparently inconsiderable in itself — can produce a large-scale toxic effect that, even at the mass level, operates insidiously as a sort of slow-acting poison, and that regulations have to be aimed at individual actions with that scale and that pace of causation in mind. An immense amount of progress has been made in consequentialist moral philosophy by taking causation of this kind, on this scale and at this pace, properly into account. (p. 97)
(Waldron refers here to the well-known treatment of "moral mathematics" in Derek Parfit's Reasons and Persons.)
But why does contagion operate only with bad effects? Will not the cumulative effects of a series of individual encounters in which members of minority groups are treated with equal respect generate a positive atmosphere of assurance, in precisely the same way that Waldron postulates for the amassing of hate messages? Waldron assumes without argument a quasi–Gresham's law of public opinion, in which bad opinion drives out good.
But which process, the one that produces a positive atmosphere of assurance or the one that arouses Waldron to concern, will in fact prove the stronger? One reason to think that it is the good one is this. Waldron, in response to the charge that hate-speech laws suppress legitimate issues of controversy, notes that some matters are beyond dispute; an established consensus supports them:
Suppose someone puts up posters conveying the opinion that people from Africa are nonhuman primates.… Maybe there was a time when social policy generally … could not adequately be debated without raising the whole issue of race in this sense. But that is not our situation today.… In fact, the fundamental debate about race is over — won, finished. There are outlying dissenters, a few crazies who say they believe that people of African descent are an inferior form of animal; but for half a century or more, we have moved forward as a society on the premise that this is no longer a matter of serious contestation. (p. 195)
If Waldron is right, and only a "few crazies" believe the hateful doctrine, why is he so much in fear of the malign effects of allowing these people to publish their views unmolested by the state?
To be frank, I think that Waldron at times proceeds in a very unfair way. He says, in effect, to the opponents of hate-speech laws, "You say that you are willing to put up with the evils of hate speech in order to preserve the good of unhindered free speech. But you are not, in most cases, the ones who will suffer from hate speech. Why are you entitled, without evidence, to brush aside the suffering of those whom hate speech targets?"
That is not in itself an unreasonable question, but Waldron ignores one vital issue. He is endeavoring to make a case for the regulation of hate speech. He cannot then fairly shift the onus probandi entirely to the side of his opponents, saying to them, "prove that hate speech does not much affect its victims." It is for him to show that hate speech in fact has the dire effects he attributes to it. It is not out of the question that such speech sometimes does have bad effects, but it would seem obvious that we have here an empirical issue, one that requires the citation of evidence. Waldron so far as I can see fails to offer any, preferring instead to conjure up pictures of people who, seeing or hearing examples of hate speech, recall horrid scenes of past persecution. To what extent do people actually suffer from hate speech? Waldron evinces little interest in finding out.
If Waldron has not succeeded in making a case for hate-speech regulation, is there anything to be said against such laws — aside, of course, from the libertarian considerations that we have for this review put aside? One point seems to me of fundamental importance. Waldron presents these laws as if they limited only extreme expression of hate, e.g., suggestions that people in certain groups are subhuman or need to be forcibly expelled from society, if not done away with altogether. He rightly notes that we are not obliged to like everyone or to deem everyone equally morally worthy:
Does this [the requirement that we treat everyone with dignity] mean that individuals are required to accord equal respect to all their fellow citizens? Does it mean they are not permitted to esteem some and despise others? That proposition seems counterintuitive. Much of our moral and political life involves differentiation of respect. (p. 86)
Hate-speech laws, Waldron says, do not ignore our rights to prefer some people to others. We further remain free to criticize minority groups, so long as we do not stray into the forbidden territory of outright hatred and denigration. Waldron claims that
most such [hate speech] laws bend over backwards to ensure that there is a lawful way of expressing something like the propositional content of views that become objectionable when expressed as vituperation. They try to define a legitimate mode of roughly equivalent expression.… Some laws of this type also try affirmatively to define a sort of "safe haven" for the moderate expression of the view whose hateful or hate-inciting expression is prohibited. (p. 190)
I do not doubt that Waldron has accurately quoted from the laws he mentions, but he unaccountably fails to comment on a quite well-known phenomenon. Laws of the type Waldron champions have often been used to suppress not just vituperation but all sorts of "politically incorrect" opinions. For example, as James Kalb notes in his outstanding The Tyranny of Liberalism, "the High Court in Britain [in 2004] upheld the conviction and firing of an elderly preacher who held up a sign in a town square calling for an end to homosexuality, lesbianism, and immorality and was thrown to the ground and pelted with dirt and water by an angry crowd."
Those wishing further examples of how these laws work in practice may with profit consult the penetrating studies of Paul Gottfried, e.g., After Liberalism: Mass Democracy in the Managerial State and Multiculturalism and the Politics of Guilt. Here we are dealing not with a matter of speculative psychology but of incontrovertible fact.
For Waldron, the state ought to watch vigilantly over us, ever alert that some miscreant may cross the boundaries (set of course by the state itself) of acceptable dissent from the regnant orthodoxy of multicultural society. I cannot think that such a tutelary power has a place in a free society.
 His Torture, Terror, and Trade-Offs: Philosophy for the White House (Oxford, 2010), offers a penetrating assessment of the immorality of recent American foreign policy; and his God, Locke, and Equality (Cambridge, 2002) is one of the best recent books on Locke. Waldron's discussion in the present book of Locke and other Enlightenment writers on toleration is outstanding.
 Waldron treats it as obvious that "markets … undermine distributive justice" (p. 156).
 I may be allowed here to refer to my review of Kalb's book in The American Conservative for November 17, 2008.
 See also my reviews of these in The Mises Review, Fall 1999 and Winter 2002.