Hate Speech Law and Disagreement

By Allan, James | Constitutional Commentary, Summer 2013 | Go to article overview

Hate Speech Law and Disagreement


Allan, James, Constitutional Commentary


THE HARM IN HATE SPEECH. By Jeremy Waldron. (1) Harvard University Press. 2012. Pp. vii + 292. $26.95 (cloth).

Jeremy Waldron is erudite, well-published and well-known. He currently divides his time between being a professor of law at the New York University School of Law in the United States and being a Chichele Professor of Social and Political Theory at All Souls College, Oxford University in the United Kingdom, though the latter of these posts is comparatively recent. And of course prior to both of these Waldron held full-time positions at Columbia and Berkeley law schools and outside the law school world at Princeton University and Edinburgh University.

I mentioned above that Professor Waldron is well-published but putting it that way rather trivializes just how prolific and wide-ranging his writings have been. Waldron, a legal philosopher and philosopher more generally, has written on the idea of private property in relation to claims about fundamental rights; (3) he has written on the Rule of Law; (4) he has attempted to make a case for greater receptivity by United States courts to consider overseas case law; (5) he has delved into Kant's legal thinking; (6) he has had an on-going interest in thinking about and analyzing rights; (7) and he has written on torture, (8) to give just a sampling of the scope of Waldron's interests.

That said, it seems to me that Jeremy Waldron is best known (9) for his work on strong judicial review of the American sort that empowers unelected top judges to gainsay the elected legislature, indeed to strike down and invalidate the statutes produced by these law-makers. Waldron is against giving this power to the judiciary (10) though his opposition to this counter-majoritarian practice appears latterly to have become more hedged about with qualifications, conditional premises and exceptions, (11) or so it appears to me. (12)

Whether you agree with that "this is what Waldron is best known for" claim of mine, or not, remember it because it will make a cameo reappearance below. Indeed, it will form one ancillary plank of my argument that Waldron's underlying thesis in his most recent book is ultimately unpersuasive and unsatisfying.

I refer to Jeremy Waldron's The Harm in Hate Speech, a consideration of which will take up the rest of this review. In Part A I will briefly introduce the book, outline its contents and sketch Waldron's thesis and arguments. Then in Part B I will say why I think that Waldron fails in this book, by which I mean that he fails in the end to offer up a convincing, persuasive and satisfying argument for his ultimate position. Of course Waldron certainly does not fail in being interesting, erudite, informative and, at times, (my favorite) provocative.

PART A--INTRODUCING THE BOOK AND ITS CONTENTS

The Harm in Hate Speech was published in 2012. As Waldron himself makes clear in chapter one, the book's genesis lay in a review Waldron wrote for the New York Review of Books of a book by Anthony Lewis on the topic of free speech. (13) It was the response to that review, at least in part, that Waldron tells us in his introductory first chapter that prompted him to flesh out that Lewis review into this book, The Harm in Hate Speech.

So in chapter two Waldron gives us an expanded version of that Lewis review of his. Then in chapters three and four we get Waldron's positive case, the most favorable account or defense of hate speech laws he can give. Chapter five deals largely with needed distinctions, complexities and qualifications, including the distinction crucial to his argument--the one distinguishing between offending people and attacking their dignity. Waldron, as you might suspect, does not think laws that regulate hate speech ought to extend to protecting against felt offense whereas they should, thinks Waldron, cover dignity-degrading or dignity-enervating hateful words. And of course Waldron argues that he can uphold this distinction; that the latter (dignity protection) need not, even in the hurly burly of real-life regulation, regularly and consistently end up being used merely to prevent or foreclose speech that causes offense. …

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