Every liberal democracy has laws or codes against hate speechexcept the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.
Causing offenseby depicting a religious leader as a terrorist in a newspaper cartoon, for exampleis not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.
Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful speech.
About the Author
Jeremy Waldron is University Professor in the School of Law at New York University.
Read an Excerpt
From Chapter 3: Why Call Hate Speech Group Libel?
What we call a thing tells us something about our attitude towards it, why we see it as a problem, what our response to it might be, what difficulties our response might throw up, and so on. So it is with the phenomenon that we call in America “hate speech,” a term that can cover things as diverse as Islamophobic blogs, cross-burnings, racial epithets, and bestial depictions of members racial minorities, genocidal radio-broadcasts in Rwanda in 1994, and Nazis marching in Skokie, Illinois, with swastikas and placards saying “Hitler should have finished the job.” When we call these phenomena “hate speech”—as we do and as I often will in these pages—we bring to the fore a number of connotations that are not entirely neutral.
First, the term “hate.” The kind of speech whose regulation interests us is called “hate speech,” and that word “hate” can be distracting. It suggests that we are interested in correcting the passions and emotions that lie behind a particular speech act. For most of us, the word highlights the subjective attitudes of the person expressing the views or the person blogging or publishing the message in question. It seems to locate the problem as an attitudinal one, suggesting, I think misleadingly, that the task of legislation restricting hate speech is to punish people’s attitudes or control their thoughts. The idea of “hate speech” feels, in this regard, like the idea of “hate crimes”—offenses that are aggravated in law by evidence of a certain motivation.
In that connection, people may be excused for thinking that the controversy over the use of mental elements like racist motivation as an aggravating factor in criminal law is also relevant to the controversy over racist expression. In fact, though the two ideas—hate speech and hate crimes—do have a distant connection, they really raise quite different issues in our thinking about law. The idea of hate crimes is an idea that definitely does focus on motivation: it treats the harboring of certain motivations in regard to unlawful acts like assault or murder as a distinct element of crime or as an aggravating factor. But in most hate speech legislation, hatred is relevant not as the motivation of certain actions, but as a possible effect of certain forms of speech. Many statutory definitions of what we call hate speech make the element of “hatred” relevant as an aim or purpose, something that people are trying to bring about or incite: for example, the Canadian formulation that I mentioned in Chapter One refers to the actions of a person “who, by communicating statements in any public place, incites hatred against any identifiable group….” Or it is a matter of foreseeable effect, whether intended or not: the British formulation refers to speech that, in all the circumstances, is “likely to stir up hatred.”
What People are Saying About This
We have plenty of free speech in this country, but not nearly enough free speech about free speech itself. In this elegantly written, fair minded, and carefully reasoned book, Jeremy Waldron raises important issues about the real harm caused by certain kinds of speech. His argument is certain to give even free speech absolutists pause.
Louis Michael Seidman, Georgetown University
Waldron is a legal and political thinker at the height of his powers. Even, or perhaps especially, for someone who disagrees with his position on hate speech legislation, this book conveys a subtle, rich, rigorous and deeply challenging argument.
Timothy Garton Ash, St Antony's College, University of Oxford
Jeremy Waldron's vigorous defense of restricting hate speech will benefit those who agree with him and those who do not. The book is clearly written, both subtle and inventive in its arguments, continuously stimulating, and shows a remarkable generosity of spirit. This is quite an achievement.
George Kateb, author of Human Dignity