The Harm in Hate Speech Laws

By McHangama, Jacob | Policy Review, December 2012 | Go to article overview

The Harm in Hate Speech Laws


McHangama, Jacob, Policy Review


The Harm in Hate Speech Laws

JEREMY WALDRON. The Harm in Hate Speech. HARVARD UNIVERSITY PRESS. 304 PAGES. $2.6.95.

IN THE HARM IN Hate Speech, New York University Professor Jeremy Waldron sets out to defend hate speech laws (or "group defamation laws," as he prefers to label them) against critiques based on "knee-jerk" American First Amendment exceptionalism. Yet Waldron's defense of hate speech laws is based on a purely abstract and ultimately flawed harm principle that is at odds with modern realities. The harm principle proposed by Waldron thus leads to a utilitarian calculus which reduces the freedoms of conscience and expression to dubious empirical disputations based on evidence that is vast and contradictory. Waldron's abstract thesis leads him to dismiss some very weighty arguments against hate speech laws without investigating real examples of how they impact individuals and political debates and lead to arbitrary outcomes difficult to reconcile with the rule of law.

The book's central premise is that hate speech undermines the equal dignity of individual members of vulnerable minorities. For Waldron, "The ultimate concern is what happens to individuals when defamatory imputations are associated with shared characteristics such as race, ethnicity, religion, gender, sexuality and national origin." As examples, Waldron invokes the history of systematic racism and segregation in the U.S. and the lethal legacy of Nazism in Europe. Manifestations of hate speech "intimate a return to the all-too-familiar circumstances of murderous injustice that people or their parents or grandparents experienced," which a "well ordered society" should not tolerate. Accordingly, hate speech can be restricted as a means of "assurance" to the targeted groups. Waldron explicitly rejects the idea that hate speech should constitute a "clear and present danger" before being prohibited by comparing hate speech with environmental harms such as automobile exhaust. Since we know that exhaust can result in lead poisoning, it is justified to require each automobile owner to fit an emission control on the exhaust pipe, even if we cannot show a direct link between the individual car owner and those afflicted by pollution. To 'Waldron the harm in hate speech outweighs the many objections to hate speech laws, such as the restrictions on autonomy and freedom of conscience, the interference with the political decision-making process, the often vague and imprecise language of hate speech codes, and the risk of political abuse.

The objective of seeking to reassure all members of society that they will not suffer persecution based on their race, religion, ethnicity, etc. is one on which virtually all can agree. No one can deny the very real and horrific consequences of Jim Crow and lynchings in America, or of Kristallnacht and the Holocaust in Europe. Even the most principled defender of the First Amendment would surely allow for further restrictions on free speech if indeed it could be shown that hate speech creates a significant risk of a return to violent racial persecution. But nothing suggests that America's increasingly isolated position on the protection of free speech has led to increasing racial tensions. While there is likely no scientific method of accurately gauging the relationship between free speech and extremism, numerous surveys on race relations suggest that the putative dangers of tolerating extreme speech have little factual basis.

There is arguably no better way to gauge an ethnically diverse society's level of tolerance and commitment to equality than to look at interracial marriages--prohibited in sixteen states until the Supreme Court struck down Virginia's miscegenation law in 1967. The statistics on American attitudes toward interracial marriages reveal a startling development. According to a 2011 Gallup survey, only four percent of Americans approved of interracial marriages in 1958. …

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