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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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Forced, that is to say, if law is the only device by which civil society can be constructed and maintained. Attempting to defend his concept of “group libel,” Waldron undertakes a complicated analysis of the hurt done to an individual by an insult to the ethnic or religious group to which he belongs—which is more complicated than the dull and obvious point needs. Meanwhile, Waldron lacks significant analysis of the relation of groups, or even individuals, to the general society, when the need for such sophistication in this analysis fairly screams from the text. All through The Harm in Hate Speech, he takes a John Rawls-above-the-fray stance—that extremely annoying assumption that somehow he (and his ilk) are the arbiters of society: groupless themselves, and thus able to tell the rest of us how us to treat certain groups.

The real problem, however, is that Waldron cannot conceive of any way to redress harm except through law. The type of liberalism that defined the American Founding, and continued into the philosophy of John Stuart Mill, concluded that acceptance of some offensiveness was the price that had to be paid in order to prevent the government from curtailing the freedom of its citizens. Mill was hardly alone in adding that social culture could be as oppressive as political government, but in On Liberty, he gave fullest expression to the idea: In order to maintain freedom, we have to limit both the reach of law and the power of social convention.

Manners, in other words. It would be a fascinating exercise to read through the Founding Fathers and try to identify which problems they expected society to address and which they thought government would need to solve. Regardless, Jeremy Waldron is caught in a conundrum. To solve the problem of the First Amendment’s prohibition against laws banning expression, he moves hate speech from the category of individual harm to the category of social harm—but then cannot bring himself to deploy the social tool of manners as something that might address the harm.

Thus, he has to make a law. And it is a law that so offends the American sense of limited government that it practically begs to be violated. If it’s ill-mannered to say that Muslims are fundamentally antidemocratic, or Roman Catholics are deeply un-American, then I won’t say it, even if I believe those propositions to be true. But if it’s against the law to say such things, then I’ll shout them to the rooftops, even if I don’t believe them. As laws, prohibitions against hate speech are offensive to the sense of American citizenship that was formed at the time of the Founding and is maintained to this day. As rules of civil behavior, prohibitions against hate speech are merely good manners. 

Early in The Harm in Hate Speech, Waldron tells the story of a Muslim man, walking with his children, who sees a sign that says, “Muslims and 9/11! Don’t serve them, don’t speak to them, and don’t let them in.” He intends the visceral offensiveness of the scene to lead us to enact laws against hate speech. Unfortunately, that’s what salesmen call a “bait and switch”—for it’s not the illegality but the impoliteness of the sign that offends us. As a matter of law, I rather like the sign: It helps prove what a robust and strong Constitution we have, when government cannot intervene to prohibit offensive speech.

The Harm in Hate Speech is state-of-the-art for an academic treatise, and it makes the best case currently available for enacting hate-speech laws. But even if we find the argument persuasive, the centrality of free speech for the American Founders ought to give us pause. They had actually experienced governmental censorship of the kind for which Jeremy Waldron calls, in a way no later American ever has. Isn’t an answer to Waldron’s argument that their response was the First Amendment?


Joseph Bottum is a contributing editor  to The Weekly Standard.