Should Hate Speech Be Outlawed?

Carl De Keyzer/Magnum Photos
A Ku Klux Klan rally in Hico, Texas, 1990

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…

This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your account.