A version of this review originally appeared in the Times Literary Supplement, 4th January 2013. It is reproduced here with permission.
On the Offensive: a review of Jeremy Waldron The Harm in Hate Speech (Harvard, 2012)
by Nigel Warburton
Free expression has consequences, some tragic, some surreal: that much is clear. The ludicrous YouTube trailer ‘Innocence of Muslims’ has left bodies in its wake as protests around the world have turned violent. For those on a hair-trigger, perceived religious slight is sufficient stimulus for murder. Yet that odd video is protected expression within US First Amendment law, and the unrest it stirred lead Barack Obama in a recent United Nations address to reassert free speech as a core democratic value, condemning those who used its online presence as a pretext for violence.
We’ve been here before. In 2004 Theo Van Gogh was murdered in an Amsterdam street because of Submission, the film he made with Ayaan Hirsi Ali and in which lines from the Koran are projected onto a woman’s body that bears the marks of a beating. Before that, Salman Rushdie, aka Joseph Anton, spent years in hiding as The Satanic Verses was burnt in the streets. The list of victims is already long, and, sadly, looks set to lengthen. Where a society chooses to draw the line on free expression is, then, no trivial matter: it can be a life and death decision. The borderlines must be negotiated and re-negotiated as times and technology change and new cases arise. This isn’t just a question of legal wrangling. Intimidation and implied threats can lead to self-censorship, and the free flow of ideas can as easily be impeded by perceived risk to those who air their views as much as by direct censorship.
For John Stuart Mill in On Liberty (1859), the starting point for liberal investigation of this issue, the answer was clear-cut: causing offence should be distinguished from causing harm. Incitement is one thing and is, rightly, illegal; but expression of dissent, and even contempt expressed in forthright language, is quite another. Radical dissent should be tolerated for the benefit of all. It doesn’t cause actual harm. Its presence makes us better individually and collectively. Discussion and dissent are, Mill maintained, forces for good. It’s not just that geniuses begin life as outsiders questioning the status quo, expressing opinions others find repellent. Dissenters, even if what they say is wrong, do us the service of forcing us to clarify and justify our own beliefs, preventing them congealing into dead dogma and unthinking loyalty to prejudices. Our fundamental beliefs should be challenged regularly; we risk slumbering through life if there is no intellectual enemy in the field. This is our best hope of discovering truth, and the best prophylactic against enslavement to the given. Yet Mill was clear that we should not tolerate a rebel-rouser with his placard ‘Corn dealers are starvers of the poor’ in front of an angry mob on the steps of a corn dealer’s house. That would be to condone incitement to violence. Precisely the same sentiment about corn dealers expressed in a newspaper editorial should, however, be tolerated: the context, not just the words, determines the meaning of the verbal act. But where there is no instigation to violence, free expression should be encouraged, and enjoyed. If you disagree with what someone has to say, so much the better: take the opportunity to repudiate it, or better still, refute it.
The title of Jeremy Waldron’s book, The Harm in Hate Speech, rises to Mill’s challenge, directly contradicting his belief that speech itself may offend but cannot harm us. Hate speech, Waldron suggests, can deliver genuine harms, and in specific ways. Unlike Mill, Waldron dismisses the idea that truth will prevail in the marketplace of ideas, and simply denies that the best remedy for bad speech is more speech. Waldron rather wants to curtail expression where it risks undermining individuals’ dignity.
There are two very different legal traditions relating to freedom of expression. In the US, the First Amendment, at least in recent case law, provides extensive protection of free expression. At its heart is the notion of freedom of expression for those whose views you despise or reject. Skokie is its emblematic test case. Skokie, a village near Chicago with a large population of Jews, many of them Holocaust survivors, has become synonymous with the idea that free speech is not just for those with whom you agree.. When in 1977 neo-Nazis planned to march through the village wearing swastikas, the American Civil Liberties Union (ACLU) supported their constitutional right to do so (although they didn’t actually march in the end). In this tradition the important right to free expression is content neutral, apart from specified categories of exception such as ‘fighting words’, slander, child pornography, and so on.
By contrast, in Canada, Denmark, Germany, New Zealand and, of course, the United Kingdom, there is hate speech legislation: prohibition on public statements and other communicative acts that incite hatred against specific groups, typically racial groups. Whereas defenders of the US free speech tradition emphasize the need for a reasonably thick skin and the effectiveness of meeting offensive speech with counter-speech, those sympathetic to hate speech legislation maintain that it protects those who would otherwise be vulnerable to abuse. They claim that such abuse, although it falls short of incitement to violence, harms individuals psychologically and undermines their status in society. The risk, though, is that well-intentioned legislation is used to suppress criticism of, or jokes about, another’s beliefs and ways of living.
Waldron is firmly on the side of the hate speech legislators. He wants free speech dogmatists to think again, and in true Millian spirit, presents a series of challenges to the prevailing view in the US. He isn’t naïve, though. He doesn’t believe his short book will presage the overthrow of First Amendment free speech protection any more than clear thinking about gun control will prompt major constitutional change. His more modest stated aim is this: to investigate whether American jurisprudence has really addressed the best arguments for hate speech legislation. Why he has chosen this tentative aim is unclear since most of the book (not to mention its blurb which states that Waldron ‘argues powerfully that hate speech should be regulated’) reads as a critique of the US tradition of tolerating insult, abuse, and invective, and a defence of the European way of dealing with hate speech.
Waldron suggests that hate speech should be reconceived as an intolerable form of group libel. He imagines a Muslim out for a walk with his children in New Jersey encountering a sign ‘Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in!’ and then seeing a poster outside his mosque reading ‘Jihad Central’. These distasteful slogans form part of the ‘visible fabric of society’ (p.3). They are calculated attacks on the dignity of Muslims in New Jersey in the sense that they aim to diminish their social standing; they undermine inclusiveness; they send messages to fellow haters about the acceptability of this sort of attitude. This damages individual Muslims. Waldron wants such smears outlawed on account of the personal and social harm they cause. They have no place in a well-ordered society. These are not merely the by-products of bigots letting off steam, but a deliberate targeting of members of vulnerable groups. Taking a walk in public with your family shouldn’t be like this. The law should be used to prevent it.
Waldron finds some support for this stance in the verdict in the 1952 case of Beauharnais vs Illinois. Joseph Beauharnais had circulated racist leaflets arguing that Chicago authorities should stop ‘the invasion of white… neighbourhoods and persons by the Negro’ on account of an alleged link with guns, rape, and marijuana use. (quoted Anthony Lewis, Freedom for the Thought That We Hate, p.158). Illinois had made it a crime to distribute any publication that ‘portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion’. The conviction and fine of $200 were upheld on appeal by the Supreme Court by a five-four majority, despite the apparent conflict with First Amendment rights. One argument used was that Beauharnais had libeled a group, and that such libel was not protected speech and so lay outside the First Amendment’s protective scope.
The 1964 verdict on New York Times vs Sullivan effectively overthrew that decision.The New York Times had published an advertisement paid for by supporters of Martin Luther King Jr.’s which stated that ‘Southern violaters of the Constitution’ had used illegal tactics against civil rights protestors. L B. Sullivan, an Alabama commissioner, claimed that because he was in charge of the Montgomery police at the time, he could be identified as the target of the advertisement and so had been libeled. After losing the case, The New York Times won a pivotal Supreme Court judgment that reversed the previous claim that the burden of proof in such libel cases lay with the defendant. Henceforth the plaintiff had to prove falsity in order to win. The effect was that public figures could no longer win damages for libel unless false statements had been made from malicious intent. The justification for this was that because false statements are inevitable in vigorous public debate, which is good for democracy, they must be protected.
It is important to get clear what Waldron means by ‘group defamation’ here as it is not simply any defamation of a group. Rather, for him, the salient aspect is that it is defamation of vulnerable individuals by means of defamation of group characteristics . He wants legislation that will protect individuals, not groups. So, perhaps surprisingly, religious doctrines aren’t sacrosanct in his view: it is permissible, for example, to savage a Christian doctrine, and that wouldn’t result in the relevant kind of group defamation, even though it might well seem to be a way of attacking Christians who believe this doctrine. Think of the way that disparaging remarks about Scientologists’ belief systems impact on the way Scientologists are treated. Waldron assertssomewhat implausibly that ‘the civic dignity of the members of a group stands separately from the status of their beliefs’. But if members of a group hold beliefs that are widely ridiculed the ridicule undermines their credibility and dignity in many respects.
That Waldron attempts to draw this distinction between beliefs and believers is easily missed, but emerges in his discussion of the Danish cartoons of Muhammad published in Jyllands-Posten in 2005. You might expect him to treat the affair as a further example of the visible fabric of society undermining dignity – in this case the dignity of Danish Muslims, and Muslims in other countries too: the more the cartoons circulate, the more likely that Muslims will lose dignity. But far from it: Waldron takes the liberal line that Muhammad and the Koran (or, for that matter, Jesus and the New Testament) shouldn’t be guaranteed immunity from defamation. For Waldron the Danish cartoons constituted ‘a critique of Islam rather than a libel on Muslims’ and so should escape legal censorship since they fell short of being a group libel of the relevant kind. If they had implied that most followers of Islam support violent terrorism, then they would have come close to such a libel. Waldron finds the publication and re-publication of the cartoons unnecessary and offensive, but, as he makes clear, offensiveness alone isn’t sufficient grounds for legal intervention.
Waldron’s stance throughout depends on the assumption that the harms that hate speech inflict are worse than the harms of hate speech legislation. The latter might include the risk of martyrdom of haters, the tendency to drive them underground where they may do more damage, as well as the risk that hate speech legislation is a significant step down a slippery slope which, as we have already seen in the United Kingdom, may quickly descend to the misuse of the Public Order Act with all its potential for the suppression of protest and public dissent (it has already been used to hamper British journalists attempting to report protests). Waldron believes there is a risk that we treat hate speech too lightly. But there is a risk, too, that we accord it too much weight, underestimating the power of counter-speech to neutralize its worst effects. [ends]