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Liberty for All

Free speech is the American way.

Apr 19, 2010, Vol. 15, No. 29 • By ELIZABETH POWERS
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From the evidence of Hare’s essay, which is eye-opening and stomach-turning at the same time, Europe is tied up in the procedural knots of protocols, conventions, directives, and frameworks addressing the evils of sexual discrimination, racism, xenophobia, and religious intolerance. So many enumerated rights naturally produce litigants, and since individuals may petition directly against their own national governments, cases at the full-time court in Strasbourg have grown from 138 in 1955 to over 41,000 in 2005. Remember the anti-Stalin jokes that landed people in the Gulag? The Stasi, with a quarter of the East German population on its payroll, couldn’t silence the population with the efficiency or effectiveness of the European Court of Human Rights. Freedom of expression, even in the moderated form in which it exists in Article 10 (entailing “the protection of the reputation or rights of others”), is a joke.

The United States is not immune to this trend to suppress “offensive” speech, and the views represented in Extreme Speech reflect interpretive battles that have been going on here since at least the early 1980s. These battles pit so-called critical legal scholars (Steven Heyman and, more famously, Catharine MacKinnon, who is not represented in Extreme Speech) against defenders of what this legal movement refers to as “First Amendment ideologues” (represented with a robust First Amendment defense by Ronald Dworkin). Viewing law as serving the interests of the powerful, these critics of an expansive reading of the First Amendment ground their demand for restrictions in a provision of the Fourteenth Amendment concerning “equal protection of the laws.” Liberal constitutions, they complain, have not reduced social inequality.

Of course, Stalin had tons of power, could murder his opponents—and he still couldn’t get socialism to work. Socialism, however, remains one of those vampires (like anti-Semitism) that refuses to die: Despite its past failures, each generation believes it can do it right this time around. Thus, the essays here that favor restrictions on speech and the media refer to the disempowered, to hegemonic elites, democratic legitimacy, collective defamation, asymmetry of power, and so on. They speak of the “need” to “redefine” liberal democracy; for the state to guarantee a minimal standard of protection for vulnerable minorities against “organized” racists; for “cultural policy which would build capacity within minority communities.” Stomach-turning Orwellian doublespeak, yet all too familiar.

The legal scholar referred to most frequently here is Robert Post, who was appointed dean of the Yale Law School last June. His chapter begins with a certain literary flair, quoting Charles William Eliot and even Barry Goldwater (“Extremism in the defense of liberty is no vice”) on the place of extreme emotions in society. But he, too, is ultimately evasive. He asks, for instance (without giving an answer), whether speech “attacking Islamic fundamentalism for its homophobia and suppression of women [is] hate speech or critique?” He would not have us believe that “simple disagreement can be taken as conclusive evidence of extremism or hatred,” but will only go so far as to say that we “moderns” are embarrassed by such a notion.

Dean Post is known to be a “liberal” on the First Amendment, but his views show the social and antidemocratic mischief produced by the issue of hate speech. His subject is the conjunction between freedom of speech and “ambient social norms,” the “group attitudes that we all carry around in us all the time and that form the foundation and possibility of our very ‘selves.’” Fair enough—and, as he writes, norms do evolve, and yes, they are contestable. It is also the case that schools and the law “offer authoritative interpretations of norms.” As evidence of how norms evolve, however, he makes a misleading analogy, comparing earlier laws against blasphemy with hate speech regulation, as exemplifying “the aspiration of law to enforce norms that it regards as especially important for community and personal identity.” (Emphasis added.) Some of us see a difference between the legal system acting to favor social norms that have traditionally proven of benefit for society—e.g., two parents are better than one for raising a child—and a system that provides the tools by which the government imposes new norms in the cause of social equity, a process that will produce employment for lawyers for generations to come.

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