In The Harm in Hate Speech, Jeremy Waldron discusses a loosely defined category of expression that he addressed in a review of Anthony Lewis’s book Freedom for the Thought That We Hate in The New York Review in 2008, and in the Oliver Wendell Holmes Lectures at Harvard University in 2009. Although his references to Justice Holmes in this book are not exactly flattering—Waldron writes that “at one time or another [Holmes] took both sides on most free speech issues,” and that Holmes’s judgment “that criticizing the military was comparable to shouting ‘Fire!’ in a crowded theater” is “preposterous”—in her introduction of Waldron at the Holmes Lectures, Harvard Law School Dean Martha Minow praised Waldron as “one of the two or three greatest legal philosophers of our time.” That high praise also applies to one of Waldron’s former teachers, Ronald Dworkin, who has criticized Waldron’s writing about hate speech.
While references to learned debates among such scholars suggest that the average reader might have difficulty understanding the arguments in Waldron’s book, such is not the case. The book is eminently readable and peppered with anecdotes and examples. For one, the instance of hateful speech that some readers may interpret as the proximate cause of Waldron’s decision to write the book was this e-mail addressed to him by a reader: “YOU ARE A TOTALITARIAN ASSHOLE.”
I suspect that the author of that e-mail may be a person who believes that our Supreme Court has been too willing to seek guidance in the work of foreign judges and foreign lawmakers. Waldron is certainly not such a person. His book provides arguments supporting hate speech prohibitions, to which other countries traditionally have been more amenable than has our own. Yet Waldron apparently does not expect his work to lead to any major changes in United States law. He writes that his purpose is not to persuade readers “of the wisdom and legitimacy of hate speech laws,” or “to make a case for the constitutional acceptability of these laws in the United States.” In fact, he thinks it is
unlikely that legislation of the kind I set out…will ever pass constitutional muster in America. That’s alright: there are many different kinds of laws, regarded as enlightened in other parts of the world, that do not satisfy this test—gun control laws, for example. The point is not to condemn or reinterpret the US constitutional provisions, but to consider whether American free-speech jurisprudence has really come to terms with the best that can be said for hate speech regulations.
Waldron believes that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.
His book sheds light on a number of difficult issues, and occasionally exposes the difference between historical fact and fiction. One of his favorite targets is our society’s frequent citation of Voltaire for the proposition that despite our disagreement with what a speaker has said, we will defend to the death his right to say it. As Waldron reminds us, it is far from clear that Voltaire made that remark and—more significantly—what provoked it. On more than one occasion, Waldron points out that it is usually a liberal bystander, rather than the target of hate speech, who is most willing to defend the First Amendment rights of the offending speaker.
After noting the variation in the scope of hate speech regulations in other countries, the book’s first chapter, “Approaching Hate Speech,” describes only in broad strokes the kind of speech about which Waldron is concerned:
The use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them.
Waldron’s avoidance of a bright-line rule in this area reminds me of the comment made by one of my favorite Justices about attempts to define another category of expression that shares some of the characteristics of hate speech. Obscene speech is offensive to some but by no means all viewers of television and movies and books; it tends to pollute our intellectual environment; and Waldron apparently agrees with Catherine MacKinnon that it fosters gender-based discrimination. Rather than attempting to define obscenity, Potter Stewart famously wrote: “I know it when I see it.” So it is with hate speech. While many liberal democracies have enacted laws prohibiting it, their definitions of the concept vary, and Waldron does not discuss cases interpreting the concept in foreign jurisdictions.
Instead, in endnotes to Chapter 1, Waldron quotes the text of the statutes concerning hate speech adopted in Canada, Denmark, Germany, New Zealand, and the United Kingdom. The differences among the statutes raise questions that the book does not answer. For example, while the Canadian statute prohibits public statements inciting hatred against “any identifiable group,” it is not violated unless the statement is “likely to lead to a breach of the peace.” The law enacted in Denmark, by contrast, does not seem to require a likely breach of the peace and encompasses any statement that derides any “group of persons” because of “their race, colour of skin, national or ethnic background, faith or sexual orientation.” With the exception of the UK statute, which covers “threatening, abusive or insulting words or behavior,” the cited statutes seem to apply only to actual speech without explicitly mentioning expressive conduct, such as burning draft cards, crosses, holy books, or flags.
Thus, instead of stating a general proposition that he either supports or opposes, Waldron begins by providing the reader with the facts of what may well have been an actual incident in New Jersey. A Muslim man, walking with his two children, turns a corner on a public street and is unexpectedly confronted with a sign saying: “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in.” The father is not sure how to respond to his children’s questions about that message, or other signs expressing hostility to Muslims. Waldron describes those signs
loosely as “hate speech,” putting them in the same category as racist graffiti, burning crosses, and earlier generations of signage that sought to drive Jews out of fashionable areas in Florida with postings like “Jews and Dogs Prohibited.”
That example of anti-Muslim speech is important for two reasons. First, it has nothing to do with violence. The speaker has not threatened anyone, and there is no suggestion that the message will provoke a violent response by any of its targets or violent attacks against Muslims by those who sympathize with the views of the speaker. Thus, most of our Supreme Court opinions concerning the First Amendment protection for speech that may lead to violence are simply inapplicable to Waldron’s thesis that government should regulate speech of this kind. Second, the principal reason why Waldron believes such regulation would be desirable is not just to protect the targets of hate speech from offense. Rather it is to protect the inclusive character of a society that should respect the dignity of all of its members.
Waldron’s example seems to assume that the justification for regulating hate speech applies equally to the anti-Semitic speech and the anti-Muslim speech that he quotes. There are, however, two differences that merit comment. First is the temporal difference. Although anti-Semitic speech still occurs, it has almost disappeared from the public forum in the United States. The fact that social disapproval rather than government intervention brought about the change lends support to the general presumption against official censorship.
Second, while no group of Jews had carried into action a specific threat to public safety at the time that hate speech against them was prevalent in this country, today public concern about the potential behavior of a small subset of Muslims has been prompted by recent events. Toward the end of World War II, the kamikaze suicide bombers were Japan’s most effective weapon against our naval forces, and today it is suicide bombers like those who attacked the World Trade Center on September 11, 2001, who pose the most immediate threat to our national security. While the great majority of American Muslims—including many relatives of persons killed on that date—are just as offended by that attack as any other American, and have the same interest in preventing any future attack, one cannot exclude the possibility that there may be a few people of Muslim faith who pose a special danger.
That possibility does not justify the hate speech identified by Waldron. Nevertheless, such speech may generate responses by both neutral observers and respected leaders of the Muslim community that will both produce a better understanding of that community’s culture and correct misleading statements by extremists. Waldron is right to criticize the “bravado” of liberals who call “attention to their ability to bear the pain of this vicious invective [by proclaiming] ‘I hate what you say but I will defend to the death your right to say it.’” Nevertheless, I think we need more speech on this topic, not less, even if that means permitting some speech that is offensive.
In Chapter 2, Waldron reviews his debate with Anthony Lewis about freedom for the thought that we hate. Lewis argues that we should learn to tolerate hate speech because codes regulating it would create a danger of overenforcement that could seriously threaten the expression of unpopular ideas. Waldron believes Lewis undervalues two points: first, that what is regulated by hate speech laws is not hateful thought but hateful expression (a point that seems unimportant to me, since thought and expression are closely intertwined in this context); and second, as Waldron often repeats, that toleration of ugly speech is easier for liberal bystanders than for the target of the speech.
Waldron and Lewis agree, however, that “Americans are freer to think what we will and say what we think than any other people.” They also agree, up to a point, about the history that led to that freedom. In 1798, when Congress enacted the Alien and Sedition Act, the United States was a young country and federal authority was precarious:
George Washington was denounced as a thief and a traitor; John Jay was burned in effigy; Alexander Hamilton was stoned in the streets of New York…. Republican militias armed and drilled openly, ready to stand against Federalist armies. Over everything, like a specter, hung news of the Jacobin terror in France. It was by no means obvious in those years—though it seems obvious to us now—that the authorities could afford to ignore venomous attacks on the structures and officers of government, or leave the publication of such attacks uncontested in the hope that they would be adequately answered in due course in the free marketplace of ideas.
It was over a century later—in the aftermath of World War I—that federal judges began to see the power of the state as much more of a threat to the individual than vice versa.
The interesting and informative discussion of history in this chapter omits any comment on the importance of a unique aspect of American history: the fact that during the period under discussion the dynamic growth of America was fueled by immigration of several different ethnic groups, each attracted by the freedom of opportunity here but also each engaged in economic and political competition with other groups of immigrants. What might now be classified as “hate speech” included not merely comments by members of the majority but exchanges between rival ethnic groups.
In Chicago, for example, which may at one time have included more citizens of Polish descent than any other city in the world except Warsaw, the members of other ethnic minorities used factually inaccurate speech to denigrate the intelligence of Poles. Jokes about Polish kamikaze pilots having flown over twenty missions are an example. Thus, I think Waldron’s discussion overlooks the role of hate speech in ongoing exchanges among rival ethnic minorities. Given the fact that federal immigration legislation imposed quotas based on national origin, speech arguing that some minority groups should not be welcomed had a political dimension. Moreover, his discussion ignores the importance of the circumstances in which a remark may be made. Shakespeare’s reference to Fortinbras as a “Polack” in Hamlet conveys a far different meaning from the same reference in an Irish neighborhood in Chicago.