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May 24, 2008

Waldron on the Prohibition of Hate Speech

Jeremy Waldron (NYU) has a quite interesting piece about freedom of speech in the current New York Review of (Each Other's) Books.  (We've remarked previously on the general decline of the NY Review; one of the few bright spots lately have been Waldron's essays--one early piece of uncritical sycophancy excluded--which are refreshingly non-parochial and intelligent).  Unless you subscribe to the electronic edition, however, you'll have to get a hard copy of the May 29 issue to read the whole thing.  One of his most interesting discussions concerns laws prohibiting hate speech, which are common in other parts of the liberal West, but not in the U.S., whose more "libertarian" regime poses an obstacle to laws that would outlaw incitements to racial hatred and the like.   Here is Waldron (he is reviewing a book by Anthony Lewis):

Lewis's settled position, I think, is that we do better to swallow hard and tolerate "the thought that we hate" than open ourselves to the dangers of state regulation.  I am not convinced.  The case is certainly not clear on either side, and Lewis acknowledges that.  But it is worth remembering a couple of final points.

First, the issue is not thought that we hate, as though defenders of hate speech laws want to get inside people's minds.  The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship....

Secondly, the issue is not just our learning to tolerate thought that we hate....The harm that expressions of racial hatred do is harm in the first instance to the groups who are denounced or bestialized in pamphlets, billboards, talk radio, and blogs.  It is not harm--if I can put it bluntly--to the white liberals who find the racist invective distasteful....The question is about the direct targets of the abuse.  Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?  Those are the concerns that need to be answered when we defend the use of the First Amendment to strike down laws prohibiting the publication of racial hatred.

This is well-stated, and rarely engaged with seriously in the American constitutional literature with which I'm familiar.  (It is never engaged with seriously in the libertarian "popular" literature:  one need only spend a bit of time perusing the Volokh Conspiracy blog for a good example of how lacking in basic imaginative empathy for those very different from themselves some academic libertarians are.)

On the other hand, there is a pertinent theme in the U.S. literature--usually associated with Fred Schauer who gave it a powerful articulation in his important 1983 book on the philosophical foundations of free speech (though it appears also in Mill a century before)--that deserves notice here:  namely, what Schauer called the argument from "governmental incompetence," namely, the worry that government is unlikely to discharge the task of prohibiting genuinely harmful speech responsibly.  Waldron acknowledges a version of this concern:

The worry here is that a government equipped with hate speech codes would become a menace to free thought generally and that all sorts of vigorous dissenters from whatever social consensus the government was supporting would be, as Lewis puts it, 'hunted, humiliated, punished for their words and beliefs.'

But as Waldron points out, there are two kinds of dangers here, not just one:

Surely public hysteria is a danger to be recognized on both sides of this debate--both when it manifests itself in repressive laws and when it manifests itself in the venomous denunciation of some vulnerable ethnic or religious group in times of anger or panic....Why should we think that there needs to be protection only against the first sort of hysteria and never against the second?

The worry about governmental incompetence, though, is a worry that government won't, in fact, provide protection "against the second" because governmental power is too readily co-opted for nefarious ends.  Certainly this familiar paranoid streak in libertarian thought is, if unchallenged, decisive, even allowing that Waldron has well-described the harm done by hate speech.  Should it, then, be challenged?

Waldron is from New Zealand, and was educated both there and in the U.K., where he also taught for a period of time.  His perspective is suitably cosmopolitan, and so he is no doubt familiar with the relative success of regimes regulating hate speech in cultures outside the American.  But a central question here is to what extent the broader cultural context is decisive in determining whether attempts to regulate hate speech will be successful or pernicious.  We have dealt with the issue before, in earlier postings about free speech in Canada (the latter with particular reference to the paranoid libertarian mindset).  As I wrote then:

Canada is, culturally, part of the the post-WWII European consensus based on the Nazi experience--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity. Despite this, the quality of public dialogue in Canada and in Europe is much higher than in the United States: there is a greater diversity of views well-represented in the major media and in the political sphere. The explanation for this is plainly not the law--the law in these countries is in some ways, superficially at least, more restrictive of speech--but rather the social and cultural ethos and environment.

What works in Canada or Germany might not work so well in the plutocratic United States, where public power has, in so many domains, been surbordinated to private interests.  In responding, on the earlier occasion, to a representative paranoid libertarian who intoned that,

Albert Jay Nock once wrote, 'whatever power you give the State to do things for you carries with it the equivalent power to do things to you.' What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us.

I replied that,

What separates American from Canadians and Europeans is that the Americans have been conned, on a massive scale, in to being unable to identify or distinguish (1) between kinds of state power (e.g., the power to tax, to provide healthcare, to wage war, to run the secret police, etc.), (2) the risks they actually involve, (3) what the actual benefits of the different kinds of state power are, (4) what the risks are from private power unchecked by the state, and (5) how all those risks should be balanced against all those benefits. What distinguishes the Canadians and Europeans, in short, is that most of them would laugh out loud when served up childish bromides like Nock's.

But that being said, perhaps Nock's warning is apt in the American context?  What Waldron does not consider in his essay is that when a political and public culture is as morally corrupt, indeed bankrupt, as the American, the safest tact may be precisely the libertarian one. 

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Posted by Brian Leiter on May 24, 2008 in Legal Theory, Specific Jurisprudence | Permalink | Comments (10)