[The Harm in Hate Speech by Jeremy Waldron (Harvard University Press, 2012)]
In many countries, though not in most parts of 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” 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 well-known legal and political philosopher, but the arguments that he advances in defense of hate-speech laws do not seem very substantial to me.
Hate speech, Waldron tells us, consists of “publications which express profound disrespect, hatred, and vilification for the members of minority groups.” “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.
One way to respond to this would be to assess hate-speech laws from the Rothbardian position that I think is 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, for the Rothbardian, are 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. 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. For example, he says:
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.
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.” 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.
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? Wouldn’t 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.
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.
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.
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, and that only a few “crazies” would be penalized by these laws. 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.
(I would add that even if Waldron is right about the limited range of these laws, the “crazies” should have the right to express their views). 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.
This is an outright falsehood, and it is well-known that people have been sentenced to long prison terms for “politically incorrect” remarks.
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.
