The Magazine

Uncivil Tongues

Should ‘ hate speech’ trump our principle of free expression?

Jul 23, 2012, Vol. 17, No. 42 • By JOSEPH BOTTUM
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It’s John Stuart Mill’s world. Jeremy Waldron is just living in it. Not that Waldron isn’t a smart guy in his own right. A law professor at NYU and Oxford, the author of 10 books, one of Ronald Dworkin’s favorite students, and a leading figure in debates about the use of foreign law in American courts, Waldron has established himself at the center of the academic profession. And just as he did with his 2010 book on torture, he has injected himself into contemporary policy debates with this latest work.

John Stuart Mill

John Stuart Mill

AP

His way of entering that debate is a little peculiar, for he more or less admits that the hate-speech laws he favors have little chance of passing constitutional muster. But then, he says, the American Constitution forces us to allow any number of things—gun ownership, for example—that the rest of the world sees as uncivilized, so why should free speech be any different? According to Waldron, the absence of hate-speech law is a failure of our constitutional way of governing, for hate speech is a grievous harm that cries out for punishments that the American government is prohibited from assigning.

I have to confess, here at the outset, that I find The Harm in Hate Speech a horrifying book; so will you, I imagine. But the curious thing is that Waldron clearly does not intend it to be divisive. He’s not aiming to twit the unthinking bourgeoisie or be a gadfly. The voice of thoughtfulness runs through the book, even while it tries to erase a line of classical liberalism that runs from John Milton and John Locke down to Mill—a line of liberalism that profoundly influenced the American Founders and defines us still. Waldron’s voice of moderation never wavers, even while saying things with the most outrageous consequences. 

Think of it this way: Take a figure—Charles Murray, say. To read his critics you’d think that Murray deliberately and loudly insulted various racial and ethnic groups in The Bell Curve, the 1994 book on intelligence he coauthored with Richard Herrnstein, and Human Accomplishment, his 2003 volume that ended up a paean to Western civilization. For such transgressions against received consensus, the Victorians would have crossed Murray off their dinner lists. They would have sent him to Coventry. Jeremy Waldron would send him to jail. But thoughtfully and moderately.

Some of what Waldron has to say is welcome. He points out, for instance, the unctuous and self-serving tone that usually accompanies an invocation of that potted bit of pseudo-
Voltaire about how I detest what you say but will defend to the death your right to say it. More significantly, Waldron deserves some credit for the central thrust of his book, which is an attempt to shift the harm of hate speech from the victims to the culture. We should object to hate speech, he suggests, not just because it harms minorities, but also because our entire civil society is harmed when hate speech is allowed to go unchecked.

The idea is that hate-speech laws would not be used for negatively protecting individuals against offense; such laws would be designed, instead, for the affirmative protection of dignity. We should not have censorship for the sake of sheltering minorities, but for the sake of allowing citizens to participate in the social order with the respect their citizenship demands. Under First Amendment jurisprudence, the offensiveness of a public statement does not touch the freedom a person has to say it, but Waldron believes that the damage to the dignity of citizens may be another matter.

In our current climate of personal grievance, any appeal to the broadness of civil society is gratefully received. We may be less grateful for the legal consequences of the appeal in The Harm in Hate Speech, but Waldron is at least consistent. If the real victim is society, then we are forced to stop thinking of hate speech as a tort (a harm done to an individual), and start thinking of it as a crime (a harm done to the public order).