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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. 

Usual commenting rules apply: no anonymous postings; post only once; comments may take awhile to appear and will be reviewed for substantive contribution to the discussion.

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


...interesting stuff. It strikes me that people in the U.S. not only often fail to adequately distinguish the various forms of state power and their dangers and benefits, but also that this lack of distinction is, at least in the executive branch, institutionalized. In many other parts of the developed west, the roles of bureaucratic and ceremonial (not to mention military) heads of state are carefully distinguished. No one in the UK confuses the public roles of the queen and of the prime minister...as for your worries about the bankruptcy of political and public culture in the US, I think this worry might itself be subject to the sort of point you made to the libertarian: different parts of political culture are corrupt in different ways and to different extents, and the various branches of government bureaucracy likewise are not homogeneous in their dereliction. Finally, it seems to me as well that the US situation might need to be treated with distinctions made between the federal and the (relatively) strong regional (i.e. state) level political and governmental apparatus and culture.

Posted by: Ade Artis | May 26, 2008 12:46:09 PM

I object to the word "paranoia" rather than the standard "distrust" to indicate a crucial element of the American constitutionalist view of government. And the viewpoint that protects even hate speech is mainstream (American) liberal rather than only libertarian--not at all conned by treating all forms of state power (e.g., taxation as opposed to criminal prosecution) the same. Beginning with the Alien & Sedition Acts and continuing through the recent politicization of the Justice Department, there is much justification for distrust. Consider this not entirely unrealistic scenario if racial or ethnic/religious hate speech could be constitutionally criminalized: in a time of great fear, a law is passed criminalizing speech that attacks the integrity of the "American people." Rev. Jeremiah Wright's sermons may serve as an example of the kind of "hate speech" that might lead to prosecution. Our constitutional case law has grown in the safest direction: rather than leaving unpredictable political processes to balance the various dangers on the opposing sides of the argument (so well enumerated in the initial comment) there is to be no regulation of speech not imminently connected to such crimes as incitement to specific criminal acts. The "problems of the penumbra" will persist, of course, concerning how direct the connection between speech and criminal acts must be to justify government intervention. (Private suits can seek damages, but even here there must be specific acts alleged and some connection between speech and acts.) To allow government in the U.S. to use the criminal law to prevent the "pollution" of the "social environment" surely invites rather than merely risks the tyranny of either the majority or the politically powerful elites.

Posted by: Kenneth Henley | May 26, 2008 4:28:22 PM

The perspectives reflected in this post also surfaced during the drafting of the freedom of expression and anti-hate propaganda provisions of international human rights instruments. Those interested in this drafting history might be interested in the article "Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech." Available at

Two particularly thoughtful pieces I often recommend are Kevin Boyle's contribution "Overview of a Dilemma: Censorship versus Racism" in the book Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (Sandra Coliver ed., 1992), and Kathleen Mahoney's James McCormick Mitchell Lecture, "Language as Violence v. Freedom of Expression: Canadian and American Perspectives on Group Defamation," 37 Buffalo Law Review 337 (1988/89).

Posted by: Stephanie Farrior | May 27, 2008 3:47:04 PM

What you say about the realities of law and culture in the US and Canada is, I think, correct. The UK strikes me as a more troubling case, especially in the wake of its recent ban on religious hate speech: earlier this month, we saw a 15-year-old at an anti-Scientology protest served with a court summons and his picket sign confiscated because said sign expressed the view that Scientology is a "cult". (This was the same term used to describe Scientology in a recent UK court decision.) The charges were later dropped, but I hope commenters in the US take note of the way religious "hate speech" laws lend themselves to abusive prior restraint of political speech.

Waldron seems here to limit his discussion to "racial" hate speech (I haven't read the full article), but surely we're all familiar with the process by which criticism of, say, Israeli government policy is easily equated with hatred of the nation of Israel, and thence with hatred of the Jewish faith, and thence with hatred of the Jewish "race". Norman Finkelstein, certainly, is familiar with this process, as the Guardian reminded us yesterday in reporting his arrest and deportation from Israel as a consequence of his academic writing.

With examples like these springing up every week in the press, it seems unfortunate that Professor Waldron has taken such a sanguine position on these sorts of speech laws. I lived in the US until last year, when I moved to Canada: I think there might be something to be said for your proposal that these sorts of speech laws work in countries (like Canada) with high levels of civic engagement and governments responsive to citizens' concerns, but not in countries (like the US) where state power is routinely mobilized in the defense of private moneyed interests. But of course, a statement like that risks tautology: this kind of state power is good when the state is good, but bad when the state is bad.

I think it might be more accurate to say that these laws do relatively little harm, but not necessarily a great deal of good, in countries (like Canada) with relatively harmonious racial politics and high levels of civic engagement: they are less likely to be abused, but also less likely to be needed. Social and cultural norms seem to play a greater role in restricting state discretion in Canada than the US: while US constitutional theory is a history of civil war and the struggle for formal individual civil rights in an overtly hostile apartheid regime, Canada's Charter has (amazingly to my American legal mind) a loophole (in the form of the "notwithstanding" clause) allowing any province to pass legislation that overrides constitutional rights protections. That this clause has almost never been invoked is a testament to the difference in how Americans and Canadians regard constitutional limits on state discretion.

The recent threat of prosecution of a writer in Canada's Maclean's magazine over an article critical of Muslim culture should be mentioned, of course, but overall I'm not sure any of this helps us solve the riddle of how the US can neutralize its toxic racial politics without giving the state powers which will inevitably be abused, not only moneyed interests, but also by racial and religious majorities intent on protecting themselves from criticism.

Posted by: Picador | May 27, 2008 6:01:38 PM

I agree that these laws do relatively little harm, but not necessarily a great deal of good, in countries with a healthy liberal culture (under which I would reckon the U.S.). Speaking for the case of the Germany there is a law against hate speech http://www.iuscomp.org/gla/ (see statutes / criminal code / section 130) and specifically NS Symbols (section 86a). There is hardly any public discussion on their merits though scholars are at pains justifying the protection of the 'political climate' by means of criminal law. Most see it an "abstract jeopardy" like drunken driving. I am however skeptical whether it really helps to protect the political climate. Within the public sphere effective sanctions against intolerable utterances (reprimand, exclusion etc.) apply long before it is hate speech according to the law. Against the rise of Neo Nazi movements especially in some parts of Eastern Germany hate speech laws seem to be rather ineffective. Since they have to be precise it is easy to evade them and present the message nevertheless. The section against "denying the fact of the Holocaust" is faced with the difficulties that believing in facts can not really be enforced on somebody and would require ongoing punishment as long as the criminal act (not believing the facts) continues. Out of curiosity here is list by the German police http://www.polizei.hessen.de/internetzentral/binarywriterservlet?imgUid=04610b55-5440-48f3-362d-61611142c388&uBasVariant=ed83d448-9a76-4e11-8a5b-28e46ce02000
of signs one is not allowed to posses (except for educational purposes) and sentences one is not allowed to utter, not even 'jokingly' (Thus saying "Heil Hitler" is not a joke (probably a correct observation) but in Germany is a criminal offence – nowadays.)

Posted by: Detlef von Daniels | May 28, 2008 5:51:09 AM

Just look what is happening to Mark Steyn and Maclean's in Canada for a perfect example of governmental incompetence (and worse) in enforcing hate speech laws.

Posted by: Rob | Jun 4, 2008 11:40:08 AM

There appears to be an assumption underlying the last comment that is far from obvious, except perhaps to those who spend too much time reading the Volokh blog, namely, that there is something improper about investigating a racist like Steyn for his inflammatory rhetoric. Steyn's writing is precisely the kind that raises Waldron's question with respect to Muslims: "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?" Canadians in any case have legal rules governing the asking of such questions, and it is far from obvious that they should not have them.

Posted by: Brian | Jun 4, 2008 12:19:22 PM

My concern is with the government's inability to distinguish speech that is truly harmful i.e. interferes with a group's ability to function in society and speech that is merely offensive. While I have no problem with the Canadian government restraining the paranoid racist musings of Mark Steyn, I do have a problem with that same government's ridiculous and selectively applied obscenity standards, that have not only prohibited the importing of erotica but also works with artistic, literary, and scientific value.

In other words, it seems perfectly reasonable to me to maintain a healthy skepticism about any government's ability to differentiate offensive speech and harmful speech.

Posted by: Milan | Jun 4, 2008 12:42:09 PM

Today's NY Times has a piece touching on these issues:

"Unlike Others, U.S. Defends Freedom to Offend in Speech"


Posted by: Rob Sica | Jun 12, 2008 6:46:17 PM

There's a somewhat interesting exchange of letters between Waldron and Perry Link (a professor of East Asian Studies at Princeton) in the NYRB new issue on this subject available here:


The most interesting part of it is Waldron's discussion of British anti-hate-speech legislation.

Posted by: Matt Lister | Jun 27, 2008 1:45:07 PM

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