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.[1]
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.[2] 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 probandientirely 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."[3]
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.[4] 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.
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