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.
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).
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.