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]
