The elimination of bigotry is a perfectly legitimate aim of government

by Chris Bertram on October 25, 2007

Oliver Kamm—“There goes liberty”—attacks Steven Rose for writing that hate speech ought to be banned because it violates the human rights of its victims. There are tricky debates to be had about what counts as a properly human right, but I don’t think there’s much mileage in forensically examining Rose on that point. Kamm’s point is that hate speech—unlike, say, racist violence—doesn’t harm its victims, strictly speaking. That’s a highly dubious proposition: being bombarded with the message that you are of lesser worth than others, are disgusting, repellent, vicious or stupid, may well cause you significant harms (and where genocidal crimes have taken place, it is often against the background of such messages being prevalent). But we can let that go as an instance of Kamm’s lack of imagination. What Kamm really has in his sights are restrictions on speech that are alleged to flow from the idea that we owe one another respect, have duties of civility to our fellow citizens, and so forth. He’s surely wrong on this point, and for two reasons: first, in a a democracy of equal citizens it is important to see to it that the conditions are in place for people to participate as equals; second, no-one has any legitimate interest in the protection of hate speech, as such.* If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others. Far from liberty being endangered by hate-speech legislation it may—and whether it is depends very much on the specific social and historical circumstances—ensure that many people continue to enjoy effective liberty. Kamm also writes: “I do not … regard it as any legitimate part of public policy to eradicate bigotry.” Even if the elimination of bigotry were not a legitimate part of public policy, the elimination of its public expression might well be, for the reasons having to do with the freedom and equality of citizens I just mentioned. But, of course, the elimination of bigotry is an important and legitimate part of at least one area of public policy: the education system. Children should, contra, Kamm be taught that racism (along with sexism, homophobia etc) is deplorable and it is very much part of the government’s business to see that they are.

*They may have a legitimate interest in speech that would fall foul of hate-speech legislation, which is one reason to be very wary about passing such legislation and to be careful in formulating it, but hate-speech, as such, has no value and hence no claim to protection. The speech that Rose implicitly thought ought to be banned, that of James Watson about the intelligence of Africans, isn’t, strictly speaking, in that category, and banning it would endanger the legitimate expression of scientific opinion. Kamm, however, opposes Rose on the wrong grounds.

{ 3 trackbacks }

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10.26.07 at 1:04 am
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Bigotry and the Islamic Blogosphere « Ali Eteraz
10.29.07 at 11:09 am

{ 142 comments }

1

Chris Bertram 10.25.07 at 1:19 pm

Self-denying ordinance: I anticipate a flurry of outraged comments by libertarians and similar to this post. Let me announce in advance that I’m too busy to respond.

2

robertdfeinman 10.25.07 at 1:50 pm

Banning any form of speech is counterproductive. It is tried over and over again, but it never achieves it’s aim. During WWI the US banned anti-war speech and imprisoned leaders like Eugene Debs for opposing the draft.

Currently Turkey punishes people for discussing the Armenian genocide. In the USSR people were imprisoned and killed for saying the wrong things. What made it especially tricky was that today’s “right thing” could easily be tomorrow’s “wrong thing”.

One can interfere with the public expression of ideas, but the state can’t prohibit people from thinking (and acting). Racism will continue to exist in the US whether people are “allowed” to say things in public or not.

The best way to defuse hate speech is to allow it to be expressed and then to counter it with well-formed rebuttals. If you can’t do this and must resort to censorship then you probably don’t have any valid arguments of your own. This is why dogmas try to suppress others, the only way they can get people to believe is by preventing them from hearing other points of view.

3

aaron_m 10.25.07 at 2:00 pm

It seems to me pretty hard to have a sensible discussion about this without an example of what kind of speech you want to make illegal. We do have an example in the post of the kind of speech that some might want to make illegal on hate speech grounds but that should not count. This is excellent and exactly the kind of example we need to pair with the example of the forbiden kind of speech in order to have a meaningful debate.

Also note that we need some reason to accept the empirical claim Chris makes:

“If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others.”

What we need is some empirical example showing that speech is causality related to individuals actually having these kinds of comparative limits on their rights as equals.

4

Rich B. 10.25.07 at 2:07 pm

If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined,

No doubt true, but I think when you come down from the theory, you have to ask what group of people would currently qualify for (properly crafted) hate speech laws. If a black man can be elected governor of Virginia in 1990 (by 1/2%), and in 2006, Mr. George “Macaca” Allen could get 49+% of the vote, what does that say about whether black men in Virginia can “get their voices heard” and therefore need (or don’t need) hate speech protection? Or does it matter if its the University of Viriginia versus the western hinterlands?

Isn’t there sort of a paradox here of “If you are strong enough as a group to get a hate law passed that protects you, you are probably strong enough (in that jurisdiction) to get your voice heard without it”?

5

Tom Hurka 10.25.07 at 2:18 pm

What exactly is the structure of the argument?

(1) The cited harms of hate speech — stigmatization, marginalization, inability to be heard — can follow just as much from non-hate speech, such as Watson’s speech. Why then doesn’t the argument extend to those forms of speech as well?

(2) Part of the argument sounds consequentialist: it’s OK to restrict the speech of some so long as the result is the greatest total effective liberty of speech for all. Is it being assumed that any deontological account of a right to free speech is mistaken?

6

carson booth 10.25.07 at 2:34 pm

If you outlaw a certain type of ‘hate speech’ you’re assuming that particular slur of phrase is uniquely bad. If it is illegal to say ‘Macaca’, why isn’t it illegal to say ‘kike’ or to deny the holocaust? Pretty soon, you’ll have a lot of laws restricting free speech.

Likewise, it is highly doubtful that any government law can keep up with the constantly evolving sets of words and phrases that constitute ‘hate speech’ in modern American English.

7

rea 10.25.07 at 2:39 pm

The problem with outlawing hate speach is defining “hate speech” in a way that doesn’t end up, say, with Brad DeLong in the dock for hate speach against Republicans and journalists.

The point is, if you try to come up with a content-neutral definition of “hate speach,” you’ll end up suppressing speech you think is unobjectionable. The alternative to a content-neutral definition is having an authoritarian state define what is and what is not an accceptable opinion–something which was tried a few times in the 20th Century, and didn’t work out well.

As a gay man in the United States, I shudder to hear someone say, “the elimination of bigotry is a perfectly legitimate aim of government.” Open tolerance of gays, the teaching of evolution in schools,the availability of birth control and abortion–all have been characterized as expressions of bigotry against fundamentalist Christians. Send the government on a crusade against bigotry, and the outcome may be rather different than you wish . . .

8

rea 10.25.07 at 2:41 pm

Not everything unethical ought to be illegal . . .

9

abb1 10.25.07 at 2:55 pm

…try to come up with a content-neutral definition of “hate speach,”

I was thinking the same thing: impossible to define; but then:

…This phrase is best known as a description of a threshold of obscenity, no longer used, which is not protected speech under the First Amendment of the United States constitution. Exhibition of obscene material may be a criminal offense. It appeared in Jacobellis v. Ohio (1964), decided by the United States Supreme Court.

Justice Potter Stewart used the phrase in his concurring opinion in Jacobellis v. Ohio. He wrote:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

This expression became “one of the most famous phrases in the entire history” of the Supreme Court [1]

10

Sk 10.25.07 at 3:01 pm

Chris is obviously English-they don’t have a 1st Amendment over there, do they?

Sk

11

Matt 10.25.07 at 3:09 pm

“_Banning any form of speech is counterproductive. It is tried over and over again, but it never achieves it’s aim._”

Of course it’s hard to know how to fully evaluate various causal factors, but I think a quite reasonable case can be made that banning holocaust denail in immediate post-war Germany and Austria was both productive in the development of democratic socieities that were willing to face up to what they had done and also that this goal has largely been achieved. It’s a special case and I’d tend to think such laws are perhaps no longer necessary, but they do seem to have been reasonable, to have served a reasonable goal, and to have at least arguably contributed to it.

12

fardels bear 10.25.07 at 3:11 pm

There are certainly kinds of speech that aren’t protected by the First Amendment in US Constitutional law. abb1 points to obscenity as one example while highlighting the difficulty of giving us a precise definition. Other forms are somewhat easier to define: perjury, false advertising, and fighting words all fall outside of free speech protections and I’m not aware of any serious challenges to that status.

So, one useful way to approach this question might be to explore whether hate speech is like these forms of unprotected speech.

13

Dan Kervick 10.25.07 at 3:18 pm

I find this line of argument unpersuasive, Chris.

Bigotry is by definition a form of ignorance; it consists of negative beliefs, or tendencies toward beliefs, based on irrational, stubborn thinking and weak evidence, about groups or individuals. In the real world, though, enforcing standards against bigoted speech or attempting to correct bigoted thought means somebody has to decide which claims actually constitute bigotry, and which claims, while perhaps negative or stigmatizing, are true and well-founded.

Making these decisions is a legitimate role for education. Educators have to, and should, make these calls all the time. Discerning the difference between knowledge and ignorance is inherent in the educational function in a rational society. But I do not think it is a legitimate role for regulators of speech in the public sphere. A public forum is not and should not be a school, where claims are vetted by experts before being allowed in. I think we have a very powerful interest in preserving institutions whereby people can say just about anything they want in a public forum, and we rely on the critical thinking and debating abilities of the audience – hopefully strengthened through education – to separate the reasonable from the unreasonable. I really don’t want legislators, who are no more experts on these matters than you and I, to be licensed to make preliminary calls on the distinction between irrational hate speech and rational opinions, and to pre-emptively screen the former out of the debate.

You say,

If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others.

The problem is that groups or individuals could be stigmatized and marginalized not by irrational or epistemically ungrounded hate speech, but by perfectly well-founded claims. So the tendency to marginalize or stigmatize cannot in itself be the determining factor. I’m skeptical of the notion that, in addition to the right to speak, we should invest people with a right to be heard or listened to. Whether someone wants to listen to what I say, or tunes me out, is a factor that occurs entirely on their side of the equation.

There are several, sometimes competing, civic virtues involved here. You are right to stress civility, and an open society does have an interest in preserving civil institutions for public debate, and inculcating civility as an individual virtue. But there is also a virtue of civic courage that needs to be cultivated. The fact is that almost all of us can identify facts about ourselves, or beliefs we have, that would render us objects of scorn or even hatred by some other people. And this will be true no matter how much bigotry we try to regulate. A strong citizen needs to learn to face this acrimony, and speak her mind anyway. What I can demand of my government is that the scorn of others does not permit them to cut off my microphone, limit my floor time, threaten violence, etc. But I can’t legitimately expect my government to assure that others don’t think bad thoughts about me, or that their minds are open to what I say.

In my own speech, I sometimes try to spread negative thoughts about others whom I am trying to defeat in the public sphere. Hopefully, these are not irrational negative thoughts, but are negative thoughts for which I have solid reasons. If I publicly accuse some individual, or some organization, of being liars, and convincingly make the case, then from that point on others might not hear or listen to those individuals. Too bad for those individuals. If I publicly accuse some organization of having publicly unavowed ulterior motives, and I successfully make my case, then others who are strongly opposed to the ends of those motives will tune the group’s statements out. Good. I win, and they lose. But I won fair and square. They may henceforth be stigmatized and ignored. Are they entitled to more?

Moving away from abstract principles into the actual, contemporary context, I really worry about the infantilizing tendencies in contemporary liberal practice that have diminished the quality of progressive thought, critical discourse and public argument. Consider the debate about Iraq. Many people have confessed that they were intimidated into silence during that debate. Members of the media have admitted this as well. But very few people can say that the intimidation came in the form of credible physical, legal or occupational threats. The intimidation is moral intimidation – people simply don’t like others to think that they are unpatriotic, weak, gullible, soft on enemies, etc. They are uncomfortable articulating unpopular opinions. I worry that we have failed to cultivate civic courage, and have bred a generation of cowardly Americans so attached to being liked or thought well of that they are afraid to speak their minds and face the hostile contrary opinions and vilification that always accompany such opinions.

I also simply reject the notion that we owe other people “respect” in any full-blooded sense, a sense that would be relevant to this debate. I am obligated as a citizen to respect the free, republican institutions that give others a forum to speak. I am obligated to practice the institutional rules of order that permit the articulation of opinions with which I disagree profoundly. But by no means do I owe respect for others’ opinions, their moral characters, their good faith, their cognitive capacities or their integrity. Those are attributes I should grant freely and on the merits, not as a matter of obligation.

14

Jacob T. Levy 10.25.07 at 3:21 pm

I anticipate a flurry of outraged comments by libertarians and similar to this post.

Not from this libertarian. You’re careful about drawing the inference from “no legitimate interest in the activity as such” to “we can trust state mechanisms to craft bans that target that activity and don’t illegitimately burden others.” And maybe once you spelled out your sense of that “depends very much” I’d have a quarrel with you. But not yet.

I’m ready to treat “speech does not harm” as a useful shorthand, and a good guiding rule for lawmaking, but it’s not true, and I agree with you about the harms of hate speech under various circumstances.

15

abb1 10.25.07 at 3:28 pm

Laws against obscenity have been extremely controversial; George Carlin, of course, made quite a career ridiculing them. If ‘hate speech’ is anything like obscenity, I suspect Amish-style shunning is probably a more productive remedy.

16

engels 10.25.07 at 3:36 pm

One notable feature of this thread is the large number of factual claims which are being made (about certain policies not being “productive”, or never having “worked” anywhere in the world, or that undesirable consequences would be brought in train) without any evidence that I can see.

17

Bob B 10.25.07 at 3:37 pm

Subject to correction, I have to say that after extensive searches I can find no instance of where Professor Steven Rose complains of the racist overtones in these recent inflammatory reports:

“The research says: ‘One striking fact is that poor white students are the lowest performing of all groups at age 16, showing a substantial deterioration in their relative scores through secondary school.'”
http://news.bbc.co.uk/1/hi/education/5051850.stm

“White British boys from poor families perform worse at GCSE than almost any other racial group. Official figures show that only 24% of those entitled to free school meals gained five or more good GCSEs last year, compared with 65% of the poorest Chinese boys and 48% of poor Indian and Bangladeshi boys.”
http://commentisfree.guardian.co.uk/mike_ion/2007/01/the_bnp_and_the_white_boys.html

18

Brian Weatherson 10.25.07 at 3:37 pm

Banning any form of speech is counterproductive.

I think this is pretty obviously false. Banning certain kinds of false statements in things like share prospectuses and stock market filings has been pretty productive. A society that didn’t have pretty stern restrictions on what you can say in certain market exchanges would be a lot less functional than ours.

Now perhaps banning false statements in the pub about racial inferiorities wouldn’t have as good an effect as bans on false statements in stock market filings, but we can’t know that just by thinking about utterly general concepts like free speech or speech bans.

19

Katherine 10.25.07 at 3:38 pm

No, sk, the UK does not have the First Amendment. That doesn’t mean we don’t have free speech though. We don’t have laws against “hate speech” either – what we do have is laws against “incitement to racial hatred”, for example, which I’ve always thought of as the UK equivalent of the “don’t shout fire in a theatre” formulation.

20

christian h. 10.25.07 at 4:02 pm

This only goes to show how limited the liberal-democratic notion of “rights” is, doesn’t it? In particular as far as so-called “free speech” is concerned.

Then again, that’s the framework we have to deal with for now. In this context, from a tactical point of view, I am opposed to outlawing hate-speech because the power relations in society will determine what is construed as hateful. To give just one concrete example, all of us supporting Palestinian rights should be very afraid of the liberal state outlawing “hate-speech”.

21

aaron_m 10.25.07 at 4:15 pm

‘Homosexuality is a sin in God’ eyes and a cancer on our society that should be removed’
or

A cartoon of Muhammad

Is one clearly an example of the kind of speech that should be illegal and the other not, or are they both potential candidates?

OK are we following Mill’s tradition and defining speech that can justifiably be made illegal as something that harms relatively directly by inciting violence? Or are we following Matt at #10 and including some kinds of inaccuracies? If it is the first what kind of speech leads to the kind of harm that activates just bans on utterances? If it is the second approach what kind of inaccuracies?

If we look back to the suggestion of #11 we might be helped.

#11’s examples of types of speech that are fairly uncontroversially limited are of two kinds

1) Certain kinds of public lying
2) Threatening to harm/kill someone or inciting violence

1) One suspects that hate speech is based on inaccuracies but this a) need not be the case and 2) is not usually the reason why we would want to make it illegal. So if someone says that God thinks homosexuality is immoral and that this group of people is a ‘cancer on society’ (example of a recent case in Sweden) the problem is not with the inaccuracy. We do not object because of the facts that there is no God or because there is no good argument for the view that homosexuality is immoral.

We object instead because we suspect that the statement is an example of 2). Cancers should be removed so the statement might be interpreted as incitement to violence.

If this is the case then we are banning the speech not simply because it is hateful but because it tries to amplify and leverage feeling of hate in such a way so as to motivate violent action.

This way of linking harm to bans on speech seems to me to be the most workable but the post and some commentors seems to think that we should have a broader sense of the harm that is significant enough to make an utterance a crime (note that the EU courts overruled the Swedish courts view that the cancer comment was hate speech). What kind of harm expected to follow from speech is enough and what is an example of a statement that produces this kind of harm?

Inaccuracy.
The other example of holocaust denial seems to fit better into the category of the harm that comes from uttering some kinds of public lies. Of course for something to count as a lie the speaker needs to have certain intentions. I think it is difficult to claim that all holocaust deniers have such intentions thus to be on the safe side we should rather say that the problem with this kind of speech is that it is an example of a public inaccuracy that leads to a certain kind of harm. But what principles are at work here? What kind of inaccuracies and what kind of harm?

One might want to say that the holocaust denial is not a problem because of inaccuracies, but rather that the motives for the speech must be rooted in deep negative views about Jewish people. If that is the problem then what about cartoons of Muhammad? Not an inaccuracy is the relevant sense but could indicate deep negative views for a group.

22

Brett Bellmore 10.25.07 at 4:17 pm

“That’s a highly dubious proposition: being bombarded with the message that you are of lesser worth than others, are disgusting, repellent, vicious or stupid, may well cause you significant harms “

But, and this is important, in a very real sense they are harms you chose to suffer, because they wouldn’t occur if you simply had a thick skin, or contempt for the people delivering the message.

Do I really have to point out the danger of licencing people to silence others, simply by chosing to be thin skinned about any utterance they don’t like? Seems I do.

The elimination of bigotry may, may, be a legitimate public policy. The elimination of bigotry by outlawing the expression of opinions the government deems bigoted is not. I know that, “If all you have is a hammer…”, but surely you can conceive of some less crude approach.

23

engels 10.25.07 at 4:32 pm

Umm, I’m not sure why I am bothering, but just to point out that Brett’s #22 is a quite ridiculous response to the point he picks up on. For example, if the media spreads the message that people like me are inferior to everybody else, and this idea influences many other people to take actions, eg. choosing not to associate with me, whose cumulative effect is to cause me very grave harms, eg. by making it impossible for me to obtain employment or excluding me from society, then it is clear that this outcome was quite outside of my control and it is quite preposterous to suggest that I “chose” it by being “thin skinned” or whatever.

24

bi 10.25.07 at 4:39 pm

“Do I really have to point out the danger of licencing people to silence others, simply by chosing to be thin skinned about any utterance they don’t like? Seems I do.”

Well, yeah, there’s a real danger of licencing people to arrest murderers, just because the victims haven’t learnt enough martial arts to engage in self-defence. It’s the victim’s fault, it always is.

25

magistra 10.25.07 at 4:44 pm

In Europe if you want to look for historical reasons why unlimited freedom to express hate speech is not a good idea, you don’t have to look far. The medieval church officially opposed the expulsion or killing of Jews and protested when this happened; but its centuries of rhetoric about the Jews as Christ-killers undoubtedly were one cause of the rise of murderous anti-Semitism in the twelfth and thirteenth centuries.

Would any of those who argue for complete freedom of speech support a modern day newspaper printing some of the anti-Semitic cartoons of the first half of the twentieth century, the ones with hooked-nosed Jews dripping with blood? Several recent British cartoons which have been seen as anti-Semitic have drawn uproar and have been withdrawn with apologies. There have certainly been no call to republish them in other newspapers to ‘protect the freedom of the press’, as with the cartoons of Mohammed.

You can argue that the Jewish experience is a special case, but it shows the kind of consequences that hate speech can have. And I think many other minority groups might prefer not to have widespread violence inflicted on them in order to prove definitely that they need protection. There are all kinds of practical problems in deciding where the limits of hate speech should be, but saying ‘anything goes’ is very naive.

26

aaron_m 10.25.07 at 4:44 pm

Ok Brett does not think through his comments very well, but we still need examples of the kinds of speech we are going to make illegal.

27

aaron_m 10.25.07 at 4:50 pm

“Several recent British cartoons which have been seen as anti-Semitic have drawn uproar and have been withdrawn with apologies. There have certainly been no call to republish them in other newspapers to ‘protect the freedom of the press’, as with the cartoons of Mohammed.”

I am not clear on what you are suggesting here. Is the claim that portraying Jews dripping with blood is obvious hate speech while portraying Mohammed as a terrorist is not?

28

bi 10.25.07 at 4:57 pm

aaron_m: I think magistra’s hinting at some sort of double standard: offend Muslims all you like, but if you dare to offend Israelis, you’re a treasonous traitor who hates Western civilization.

29

magistra 10.25.07 at 5:04 pm

My point about the cartoons is that there is a lot of inconsistency in attitudes to hate speech (I think this is true for liberals as well as conservatives). For reference, here are three examples I know of recent British cartoons/images that have been condemned:

Dave Brown on Ariel Sharon

Martin Rowson

New Statesman

30

jayann 10.25.07 at 5:09 pm

I also simply reject the notion that we owe other people “respect” in any full-blooded sense,

I think you omitted ‘automatically’ (before ‘owe’). I also think you’re missing the point. If you decide you don’t owe me as an individual any respect, well, whatever… if you decide you don’t owe *women* any respect, that’s quite another matter. (I was going to say ‘black people’ but I’m not black: consider this — OK he isn’t black either…

http://www.lrb.co.uk/v28/n14/wald01_.html )

groups or individuals could be stigmatized and marginalized not by irrational or epistemically ungrounded hate speech, but by perfectly well-founded claims.

e.g.? (Mean score on IQ tests is not a ‘well-founded’ reason to stigmatise/marginalise a group or groups, IMO, an individual’s score is not either.)

Now perhaps banning false statements in the pub about racial inferiorities

I don’t think that’s what’s being suggested (except in instances where it amounts to incitement and is potentially covered by current UK law) (I do though agree with your general point)

31

jayann 10.25.07 at 5:15 pm

The speech that Rose implicitly thought ought to be banned, that of James Watson about the intelligence of Africans, isn’t, strictly speaking, in that category,

I wouldn’t ban that kind of speech but to say

banning it would endanger the legitimate expression of scientific opinion

is to give Watson (in this instance) too much credit. What he said is (insofar as I can tell) an illegitimate extrapolation from such data as there is on the IQ scores of ‘Africans’.

32

Brett Bellmore 10.25.07 at 5:23 pm

“Well, yeah, there’s a real danger of licencing people to arrest murderers, just because the victims haven’t learnt enough martial arts to engage in self-defense.”

Oh, so saying something somebody doesn’t like is the equivalent of cutting them down in cold blood, and saying, “Ho, hum, who gives a damn what you say.” is an exotic martial arts technique?

33

tps12 10.25.07 at 5:46 pm

Brett, you may have missed Engels’s comment 23. You should go back and reread.

34

Matthew 10.25.07 at 6:07 pm

Watson’s lecture at the science museum was cancelled, as were other lectures, and his laboratory have made him take early retirement. All of these were private or quasi-private bodies acting in such a capacity. The human rights of the victims should not trump the right to free speech in law, but for the vast majority of people they do trump the right to free speech in a private capacity. Most people wouldn’t think any guest at their house has a right to insult another guest, even if their comments were truthful. Watson can start a blog if he really wants – the Science Museum is perfectly within its rights not to let him use their time and money.

35

lemuel pitkin 10.25.07 at 6:07 pm

Well, if my boss says to me, “Why you can’t do anything right, you idiot?”, it’s just another day at the office. No legal consequences called for. But if he says, “Why can’t you do anything right, you stupid nigger/useless faggot/disgusting wetback/stinky tofu-smelling Chinaperson?”, then maybe the law should take an interest. No?

36

Planeshift 10.25.07 at 6:19 pm

“Chris is obviously English-they don’t have a 1st Amendment over there, do they?”

Well we have the European convention of human rights incorporated into British law, but most of the “libertarians” over here are against that.

On the other hand I need a very strong drink because I’ve found myself agreeing with Brett Bellmore.

37

engels 10.25.07 at 6:22 pm

Just to make a quick point on the other side, I am not altogether happy with the “legalistic” justifications for suppression of speech, eg. in Matthew’s post above, on the grounds that the First Amendment only applies to government action. So it does, but that has always seemed to me to be an apparently irrational state of affairs. Free speech is an important value and it’s worthwhile to debate what policies might protect or promote it. The First Amendment of the US constitution should not be the touchstone here and the US public sphere is not IMO a shining example to the world when it comes to free speech, if this is thought of in any more plausible sense than the highly legalistic “classical liberal” one of the US First Amendment.

Waldron’s LRB article (as linked by Jayann above) is good on this:

It’s a strange dichotomy because, in other contexts, American civil liberties scholars have no difficulty at all in seeing a connection between speech and the possibility of violence. They point to it all the time as a way of justifying restrictions on citizens’ interventions at political gatherings. If Donald Rumsfeld comes to give a speech and someone in the audience shouts out that he is a war criminal, the heckler is quickly and forcibly removed. When I came to America, I was amazed that nobody thought this was a violation of the First Amendment. (Shouting comments at public meetings was another of my favourite pastimes when I was young and irresponsible.) But I was told by my American colleagues that heckling presages disorder, and disorder threatens security. There is a time and place for heckling – usually several blocks away in a pen set up by the police to ‘accommodate’ legitimate protest, which no one except the police and the protestors themselves, certainly not Donald Rumsfeld, has any prospect of hearing. And that’s all the First Amendment requires. So there is an odd combination of tolerance for the most hateful speech imaginable, on the one hand, and obsequious deference, on the other, to the choreography which our rulers judge essential for their occasional public appearances. The Nazis can disrupt the streets of Skokie, but those who disrupt Rumsfeld’s message will be carried away with the hands of secret service agents clamped over their mouths. I have given up trying to make sense of any of this.

38

christian h. 10.25.07 at 6:24 pm

And if your boss says such things, it’s harassment and the law already takes an interest (namely, you may sue that guy for his money).

The question is, if you go to a political event and say those things – abhorrent as they are – should the cops haul you to jail?

More importantly, should the very same politicians who already do your boss’s bidding be the ones to decide what you can or can’t say – don’t you think it more likely they’re going to decide that you saying “my boss is a damn plutocrat swine, I can’t wait until he’s put to a wall” is worthy of punishment?

My impression is that any legal progress on protection of oppressed groups is a result of political struggle. It seems to me to be a delusion to believe that the political struggle can be short-circuited by an appeal to the law.

Calling for more laws before the political struggle is won will just give the ruling class an excuse to increase oppression under the cover of fighting it.

39

christian h. 10.25.07 at 6:29 pm

engels, I completely agree with the quoted part of the LRB piece – coming here (US) from Germany I’ve always been amazed by the same issue. However, I don’t see this as an argument to give those that govern us even more legal ammunition to suppress unwanted speech – quite the opposite.

For me, this whole issue is less a question of principle than of tactics. And tactically speaking, if I’m in opposition to the current power structure, I should oppose supplying any more instruments of repression to that power structure.

40

lemuel pitkin 10.25.07 at 6:31 pm

Christian,

I basically agree. (And with Engels above.) We need more free speech, not less. However, I’m against formalism and easy absolutes here, which you seem to be flirting with.

The question isn’t whether the law limits derogatory speech in the workplace — of course it does. The question is whether it should. My answer is yes, yours I’m not so sure about. After all, aren’t anti-discrimination laws passed and enforced by the same political authorities who would be responsible for hate-speech laws? Does it then follow that that they don’t or can’t provide any protection for oppressed minorities?

41

lemuel pitkin 10.25.07 at 6:32 pm

Eh, 30 seconds of reflection convinces me that I’m the one engaged in silly formalisms. Christian H. is right.

42

aaron_m 10.25.07 at 6:34 pm

Those here defending making some kinds of speech acts illegal because they are hateful have so far advanced the following reasoning.

We can imagine some speech that clearly should be illegal because it is too harmful. There remains of course the problem of distinguishing between when speech acts are of the kind that can justifiably made illegal. However this is a second order consideration. The first order question is if we can justify making some very harmful speech acts illegal, and since we can imagine some such scenario we have enough to justify the practice as such. The next order of business is to work out where to draw the lines.

It seems to me that there is something pretty problematic about making our ability to make meaningful distinctions between what does and does not count as the kind of speech that can legitimately be made illegal a second order question. If we can’t make a meaningful and compelling distinction then the argument for thinking we could justify such laws at all is not very strong from the start. I have been pushing people to give examples of what should count as illegal speech. The fact that nobody has made an attempt to do so, besides me, should give those that want to make some speech acts illegal real pause.

43

Thomas 10.25.07 at 7:10 pm

I wonder how much “hate speech has no value” and calls for the elimination of bigotry (and not just public expressions thereof) differ from the old “error has no rights” doctrine. If anything, they seem more illiberal, in that persons themselves are seen as in need of correction.

It seems to me that hate speech might have little or no positive value to public discourse while still being of value to the speaker: The speaker presumably is speaking the truth as she sees it, and efforts to outlaw the expression of these odious untruths would deny the formal equality (the right to participate in public debate as an equal with other citizens) and the respect all citizens have a right to. What is more stigmatizing to a citizen than to be singled out for restrictions on expressing what she sees as the truth?

It seems to me that efforts to justify restrictions on hate speech would need something weightier than the same interests that are compromised by the efforts–unless Tom has it right in No.5 above (pt 2), in which case we’re just to tally up the consequences on each side, somehow.

Or alternatively one could offer a more comprehensive account of the good life, and justify the treatment as necessary for achieving that, but that is an approach with its own demerits.

44

mpowell 10.25.07 at 7:18 pm

Some of them commenters like Aaron_m and Christian h. have hit on the right points I think. To a certain extent, I think the answer should vary by country. In England, for example, there is no first amendment. This limits the degree to which you can be assured that a future oppressive government will not attempt to limit legitimate legal speech. So maybe you are not risking as much in this direction by passing a law limiting hate speech now. Passing such a law does create a precedent, but it is not nearly as meaningful as the precedent of a consitutional amendment or even the court’s interpretation thereof.

In the United States, on the other hand, we do have a first amendment protection to free speech. And I would be strongly opposed to altering that amendment or a supreme court ruling that that amendment doesn’t protect speech the legislative or executive decides to qualify as ‘hateful’. I am quite sure that would lower the barrier to further limitations on legitimate political speech.

Let us be clear here: there is a group of dissenters here who believe 100 percent that hate speech is harmful and that, moreover, we can reasonably determine what ought to qualify. But when we talk about laws and government, we have to think about the consequences of a legal system and tradition in the hands of our least desirable political party, or even just under the influence of the worst trends of contemporary politics. Interestingly enough, modern American political discourse provides the perfect example of legitimate political speech that would risk being banned if it was considered politically acceptable to ban hate speech. Criticisms of American policy towards Israel or criticism of the influence of the Israeli lobby is frequently met with the cries of, “Anti-semite!”. This is even very close to the conventional wisdom view in American politics. This is obviously quite far from hate speech, but I think you have to admit the far greater likelihood of it being banned in the United States were it not for certain laws and traditions that we have here regarding free speech.

Finally, I think when people argue that there are better ways to discourage bigotry, this is the most favorable interpretation of their argument. There are other ways for the government to discourage bigotry that do not pose the same risks to legitimate political speech. And that is an argument that demands a response, in my opinion.

45

Chris Bertram 10.25.07 at 7:23 pm

[momentarily suspends self-denying ordinance]

Things to note:

* Dan Kervick addressed the point, thanks;

* all comments about practicability, counterproductivity, the risks of empowering bad politicians etc are utterly irrelevant, since the post concerned the _grounds_ on which we might restrict speech and did not argue that those grounds ought always to outweigh those other considerations

* Aaron M has been moaning about “examples” and claiming that no-one has given any. Though he was arguing against the “counterproductivity” point, Matt in #11 gave a perfectly good example of where and how speech restrictions might protect the freedom and equality of citizens of a liberal order.

* Thomas: yes that’s right. [sarcasm] Singling out Nazis for stigmatizing Jews would be to stigmatize them and would deny them the opportunity to participate as the free and equal citizens of a liberal order….[/sarcasm]

46

robertdfeinman 10.25.07 at 7:29 pm

I know that I’m in a minority, but I’m an absolutist when it comes to freedom of speech. The first amendment says:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

It doesn’t say “except for hate speech, or pornography, or shouting fire in a crowded theater”. What happens in practice is that once some class of speech is prohibited the meaning of that class is extended so that what ends up being banned is political speech in opposition to the establishment. This is what happened with the Wobblies and Eugene Debs. It is what happened with the Nazis and under Stalin, it is what is happening right now in Turkey, China, Burma and Zimbabwe.

The limits cited above, say libel, are compensatory actions after the speech has occurred. To prohibit the statements before they occur is like arresting someone before they have committed a crime. We all know where that has led. If you shout fire and cause harm then you have committed a crime and should be punished. First the offense then the punishment. We can use social pressure and conventions to minimize bad behavior. After all we don’t all rob convenience stores, we understand that breaking laws have consequences.

Even in the case of post-Nazi Germany I’m not convinced that banning holocaust denial was the best idea. Smacking down falsehoods as soon as they occur is better than letting them fester. Look at the situation now in Japan where they are still rewriting their history to hide their actions during WWII. This can only happen because of government support for censorship.

Support for absolute freedom of speech is a difficult position. Something like 40% of the population thinks the first amendment is unconstitutional (the question just has to worded properly).

47

aaron_m 10.25.07 at 7:33 pm

Chris,

#11 is an example, but I did not count it as I had a hard time seeing how it would help us to think about “the grounds,” if you must have it put so, on which we could defend making some speech acts illegal.

Calling me a moaner is just that name calling, and I hope the rest are not tricked into thinking you have said anything in relation to the points I have been trying to make.

Not sure why you take the tone you do. I have been trying to get an interesting discussion going in the comments, which I assume is one of the main points of this blog.

48

Thomas 10.25.07 at 7:34 pm

Chris, what are the sarcasm tags for? Singling out Nazi speech certainly stigmatizes Nazi speakers. The question is what justifies it, not whether it requires justification. That you can’t see this isn’t a reason to use sarcasm, but a reason for you to rethink your argument.

49

aaron_m 10.25.07 at 7:34 pm

To be clear the issue with #11 was on the relevance for such laws today. But I grant it was as example.

50

John Quiggin 10.25.07 at 7:59 pm

It’s surprising that no one has mentioned the fact that most countries (the UK is particularly stringent in this respect) restrict speech that is defamatory of individuals. I can’t see that there is any difference in principle with restricting speech that defames large numbers of individuals as members of groups.

51

christian h. 10.25.07 at 7:59 pm

Couple points:

Chris, please don’t turn into Stanley Fish. This is a political issue, and therefore theoretical reflection on it can never be separated from practical considerations. Political issues cannot be debated in some “ideal realm” where practical considerations don’t apply.

Holocaust denial: was not outlawed in Germany until the nineties. Instead, what had been outlawed immediately following the war were Nazi symbols and literature (as, for example, “Mein Kampf“). This was done without a doubt as an act of political repression, one I find completely justified – the re-emergence of Nazism – for which many people in Germany still had covert sympathies – as a political force had to be prevented. Again, this was and is a political question – it cannot be decided on principle. Sometimes banning political speech is justified, sometimes it isn’t.

Holocaust denial is a different issue. There is absolutely no danger that a large political movement of Holocaust deniers in Germany or Austria will come to power; outlawing it is a simple exercise in public relations, and as such I disagree with it.

52

aaron_m 10.25.07 at 8:16 pm

Quiggin #50

How does the defamation model help us with questions like the Mohammed cartoon and holocaust deniers? The first can’t be classed as a false statement and the later does not harm the reputation of Jews, although it is clearly harm of another kind.

On my understanding the defamation model has clear criteria for both the kind of speech that should be prohibited (malicious statements aimed are wrecking the reputation of someone that are shown to be false in a court of law) and the kind of harm (actual harm to the reputation/credibility of an individual or business in a way that causes them some kind of lose, e.g. job opportunities or customers).

Of course the ‘false and harm’ connection is what we have in mind for hate speech, but then we are only trivially drawing a parallel to the defamation model. The real work is in the details.

53

Anderson 10.25.07 at 8:23 pm

If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere

Count me among those wishing for an example; # 11 doesn’t begin to cut it.

Is there any such group in the United States? the United Kingdom? in what democracy, exactly?

54

soru 10.25.07 at 8:24 pm

I suspect the best legal/moral framework for handling the kind of cases reasonable people would want to be handled by hate speech laws would be something like corporate manslaughter. If the directors of a railway could be convincingly proven to have encouraged a corporate culture where safety records were falsified to cut costs, and an accident happened as a consequence, then those directors probably should end up having to defend their actions in court.

A nationalist political party is clearly a more dangerous entity than a locomotive. Some are more like a Soviet nuclear power plant on a geological fault that shares facilities with a explosives factory and a care home for criminally insane arsonists.

Some such parties, for example the SNP, run themselves responsibly, never (that I’ve ever heard of) flirt with the potential for useful violence. Others, not so much.

Those in power in such organisations are the ones who should be held partly responsible when their members act out of hatred induced by their words, or realistically seem likely to. Not the guy waiting for an overdue train who says something more reckless than any manager would (‘screw the signals, I want to get home today’), but doesn’t have people listening to and acting on his words.

Disclamer: any potentially sensible law can be misimplemented or misused. No liability is accepted for any dystopian regime resulting from the adoption of this proposal.

55

Matt 10.25.07 at 8:24 pm

Christian,
My impression had been that, while the explicite laws against holocaust denial were passed later, such actions were in practice covered under the earlier anti-nazi laws. I’m not at all an expert on this topic, though, so I may well be wrong. (I’m influenced here partly be Alan Haworth’s book _Free Speech_, which I generally recommend, especially to Americans since it, unlike most books Americans are likely to read on the subject, isn’t focused on the first amendment or the US situation.) My understanding is that part of the motivation for more explicite laws on the matter came from the rise of neo-nazi groups in the former East Germany. To my mind it’s significant that there hadn’t been an explicit facing-up to the holocaust there. And, given the rise of far-right parties in Austria, mixed with a pretty serious xenophobia and anti-immigrant sentiment there, I’m not _sure_ that there’s no grounds to worry that holocaust deniers (or at least minimalizers) might come to power there.

56

magistra 10.25.07 at 8:56 pm

Aaron – you asked for specific examples.

Do you think permissible speech includes blood libel claims: that (unspecified) Jews murder and eat babies as part of their rituals?

What about Oriana Fallaci (the Italian journalist who recently died) saying of Muslims that ‘They breed like rats, and they piss in baptismal fonts.’?

57

Brett Bellmore 10.25.07 at 9:21 pm

“Brett, you may have missed Engels’s comment 23. You should go back and reread.”

I did read it. I wasn’t terribly impressed, but I guess I should explicitly respond to it.

It is quite true that, in saying something ‘hateful’ concerning you, (It might even be objectively true!) I might ‘harm’ you in a colloquial sense, by inspiring somebody to refuse you some benefit you might otherwise have gotten out of them.

If this was not a benefit you were legally entitled to, then the ‘harm’ you have suffered is not the sort of ‘harm’ the law ought to recognize. Persuading somebody to deny you something they’re entitled to deny you is none of the government’s business.

If it IS a benefit you were legally entitled to, isn’t your argument with the person who denied it to you?

In neither case is the speech the proximate cause of a legally recognizable “harm”.

58

Jim 10.25.07 at 9:27 pm

Oh good, now the left wants to junk the First Amendment just like the right. We really are becoming a sad pathetic nation that ignores the principles embodied in the Declaration of Independence and the Constitution.

59

Tony Comstock 10.25.07 at 9:29 pm

Last month a film I produced and directed was banned from playing at a film festival. To ensure the governement’s edict was enforced, police were sent to the theater the night the film was scheduled to play.

As you might imagine, I was upset by this and regarded the action of the government as a thuggish act of totalitarianism. But fortunately this incendent did not take place in the US.

I am a liberal. As such I believe that it is the ligitimate role of the government to foster tolerance. To that end, we have the First Amendment, which insists that we tolerate other people’s ideas, even ideas that we find offensive or hurtful.

60

Wes 10.25.07 at 9:43 pm

A truly idiotic post advocating a curtailment of liberty almost on par with the suspension of habeus corpus and other such right wing abuses.

The ruling regime can define “hate” however it wants: notice that Bill O’Reilly’s attack against Daily Kos involves the evocation of “hate”. Laws regarding speech open the citizenry just as much to right-wing as left-wing abuses.

You do not have to be a libertarian to reject these ends-justifies-the-means arguments for authoritarianism.

61

libarbarian 10.25.07 at 9:47 pm

Everyone always thinks that their speech-codes are for the general welfare.

62

Anderson 10.25.07 at 9:48 pm

Do you think permissible speech includes blood libel claims: that (unspecified) Jews murder and eat babies as part of their rituals?

I’m not Aaron, but I’ll take a shot: of *course* it’s permissible.

What else ya gonna do — punish the speech, and drive it underground, while lending it credibility because “if the Vast Jewish Conspiracy got this outlawed, it must be because they fear the truth“?

63

aaron_m 10.25.07 at 9:50 pm

#56

Without having worked on it too much my view is that we can legitimately limit some speech on the harm principle, but the cases where this would be appropriate are not common and limited in some important ways.

E.g., a requirement that comes directly from the harm criterion is that the speech act has to be made in a context that it can harm people. So if some idiot made the first comment on the street passing by I do not think I could claim that I was harmed by it. But if it was made in the media or in some other form of public discourse in a serious way I think there is a good case for banning it, i.e. if it was done in such a way that the intention was to create hostile social conditions against Jews (which obviously follows from the content of the statement).

This position seems to me to be dependent in part on the context of Jewish persecution and a culture of bigotry and harmful stereotypes. So I find I have the potentially odd intuition that if a news organisation said that Swedes eat their babies it would not be possible to constitute this as harm. There is a lack of historical context in the later case, and in the Swedes example the comments just seems to be just crazy babel that has no implications. But treating the two cases differently means that I unfortunately relate to a crazy view about Jews in a way that does not just dismiss out of hand the comment, which is where we should hope to be. Not my fault I guess but still its seems that the need to act through the law against such speech also creates some space for the continued reinforcement of these ideas that simple dismissal and ignoring would not allow for.

At any rate I would lean towards having the first example being illegal to express, for example, by journalists or politicians. Although I do not recognize this example as at all representative of the free speech debates in liberal democracies.

In the second example I feel a bit culturally incapable of interpreting the situation as the force of the piss in baptismal fonts insult is a bit lost on me. Saying a group breeds like rabbits in some way is more easily linked to harm because it is not as obviously false as the other statement. Thus, more people could be persuaded/affected by such comments. At the same time it is not suggesting that some group is evil and murderers so I am not sure that it rises to the level of harm necessary to make it illegal. I would suspect that second example does not count as illegal speech in those countries with hate speech laws on the grounds that there is not much link to harm or violence towards the group.

64

Chris Bertram 10.25.07 at 9:51 pm

For the American 1st Amendment parochialists (#46,48, 49):

… restrictions on hate speech are only part of it. If we are serious about assuring for everyone the conditions under which they are able to function as citizens of equal status, then quite a few further restrictions of “speech” are necessary. Campaign finance restrictions, political advertising restrictions, diversified media ownership, etc.

… oh and (#46), whether or not it ought to be protected, and whatever your Supreme Court might or might not say, pornography isn’t speech.

65

nu 10.25.07 at 9:52 pm

The case of France, that has, from my understanding quite strict laws on hate speech suggest two things:

– it sort of cleaned up the public debate. the fact that media couldn’t print some words or some ideas is why younger generations think words like “race” are offensive. and as a result scientist don’t have to go around explaining to people that we didnt evolve from different apes or something.
– it didnt prevent people from using proxies. see Le Pen was sentenced for saying “it’s quite clear to me that some races are superior” (without saying which one) but it’s perfectly legal for him to use “french” or “immigrant” or “cultures” as proxies for “white”, “blacks and arabs” or “race”. And let’s not talk about how Sarkozy used all those proxies extensively.
Yet, if it wasn’t for the laws, Le Pen would be saying “niggers and towelheads, go home” on public TV and do the same scores at elections.. so like hate speech can be defined.

66

engels 10.25.07 at 9:56 pm

But Anderson, like so many of the commenters above, you are making a very general empirical claim about the effects of censorship for which you have not provided any support other than a few words of psychological speculation.

67

John Quiggin 10.25.07 at 10:04 pm

#52 – I don’t think the existence of laws against defamation automatically justifies hate speech laws, and I’m fairly dubious about the merits of such laws.

What it does is to undermine claims that hate speech laws are obviously repugnant to widely held basic principles of law, like the First Amendment or the kind of claim that Kamm appears to be making that no restriction on speech acts can be justified.

To be clear, I’m not making a legal claim about the First Amendment, just saying that an interpretation that allows governments to prohibit defamation of individuals but not of groups is far from being self-evident.

68

tom bach 10.25.07 at 10:10 pm

“oh and (#46), whether or not it ought to be protected, and whatever your Supreme Court might or might not say, pornography isn’t speech.”

So then this decision wasn’t ground breaking at all, as pornographic and/or obscene literature isn’t speech?

“Judge John Woolsey’s decision in the Ulysses case marked a notable change in the policies of the courts and legislative bodies of the United Statestoward obscenity. Before this decision, it was universally agreed that a) laws prohibiting obscenity were not in conflict with the First Amendment of theU.S. Constitution and b) the U.S. Post Office and the U.S. Customs Service held the power to determine obscenity. Ulysses became the major turningpoint in reducing government prohibition of obscenity.”

Quick call Vivian Darkbloom.

69

Tony Comstock 10.25.07 at 10:19 pm

Chris Bertram,

You might want to do a little woodshedding before spouting off on what is and isn’t speech. You might start by reading up on the legal definition of pornography (here’s a hint, there isn’t one) vs. the legal definition of obscenity. Same cases you might find illuminating:

US v Ulysses
Roth v US
Jacobellis v. Ohio
Miller v California

70

Thomas 10.25.07 at 10:20 pm

“If we are serious about assuring for everyone the conditions under which they are able to function as citizens of equal status, then quite a few further restrictions of “speech” are necessary.”

Notably, the list of conditions that follows doesn’t include anything that would deprive (someone like) Chris of his substantial audience and influence.

71

Anderson 10.25.07 at 10:22 pm

But Anderson, like so many of the commenters above, you are making a very general empirical claim about the effects of censorship for which you have not provided any support other than a few words of psychological speculation.

I don’t feel too bad about that, since the post itself makes a sweeping postulation of “particular groups [that] are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere,” which I’ve yet to see instantiated.

72

Chris Bertram 10.25.07 at 10:29 pm

#67, 68. So what. I’m not an American, I don’t live in the United States, and American courts aren’t authoritative (either way) about the meaning of words in the English language.

73

MR. Bill 10.25.07 at 10:31 pm

Off topic but somewhat symmetrical:
the Odious George Will argues today in the Washington Post that universities shouldn’t be able to like student spending in campus elections, as it limits ‘free speech’. (Like that mean ole McCain-Feingold law limiting campaign contributions..)
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/24/AR2007102402337.html?hpid=opinionsbox1

74

tom bach 10.25.07 at 10:32 pm

“Do you think permissible speech includes blood libel claims: that (unspecified) Jews murder and eat babies as part of their rituals?”

How would you craft a law that forbids this speech yet would not out law H. Walser Smith’s “The Butcher’s Tale,” which deals with the use of this trope in anti-semitic discourse

75

tom bach 10.25.07 at 10:36 pm

# 71 So then what about Lady Chatterly’s Lover? When did it stop being pornographic?

76

MR. Bill 10.25.07 at 10:36 pm

Dang, 72 should say “..be able to LIMIT student spending…”

77

Rich 10.25.07 at 10:51 pm

I think you can have bans on hate speech and still be a liberal democratic society–Canada, the UK, Germany, and other countries demonstrate this. But I don’t think it comports with our democratic tradition in the U.S. and I don’t think we would gain enough to justify what we would lose.

78

engels 10.25.07 at 11:03 pm

As any principled advocate of free speech knows, “speech” must be understood in the widest sense, encompassing not only violent pornography but also non-consensual acts of violence.

The Onion: ACLU Defends Nazis’ Right To Burn Down ACLU Headquarters

“We can have no arbitrary setting of limits when it comes to the Bill of Rights,” [ACLU president Nadine] Strossen said. “The Constitution does not say, ‘You have the right to express these opinions, but not those opinions.’ Nor does it say, ‘You can express these opinions by word, but not by violence.’ For a free society to work, hatred, in all its forms, must be encouraged.”

79

Sebastian Holsclaw 10.25.07 at 11:13 pm

“oh and (#46), whether or not it ought to be protected, and whatever your Supreme Court might or might not say, pornography isn’t speech.”

“#67, 68. So what. I’m not an American, I don’t live in the United States, and American courts aren’t authoritative (either way) about the meaning of words in the English language.”

The eyes roll. And Americans are called parochial? US v Ulysses explores WHY statements like ‘pornography isn’t speech’ makes for silly laws. The fact that you don’t live in the United States doesn’t have much to with that. And the fact that classing speech in ‘non-pornographic’ and ‘pornographic’ can be super-difficult (especially in societies that aren’t monocultures) doesn’t depend on living in the United States. The United States courts have some of the most extensive thinking about free speech recorded anywhere–complete with built in case studies. Writing that all off as “I’m not an American so who cares” is simple closed-mindedness. Your country doesn’t have to have a first amendment for the discussions of free speech in that context to be illuminating.

The problems of defining pornography from ‘legitimate’ art expression are very thorny. And seeing how difficult THAT is, should make you even more wary of trying to define the border between aggressive political speech and “hate speech” without it becoming just a method of the dominant political class squelching speech it doesn’t like.

Free speech is one of the areas that even in Bush’s America gets done better and with much deeper thought than anywhere else in the world. You can just ignore that if you want. But you’re being silly.

80

novakant 10.25.07 at 11:13 pm

The funny thing is: almost everybody exercising his/her right to freedom of speech on the internet is willingly submitting themselves to rather harsh restrictions enforced by people without any democratic legitimacy. I don’t know of any blog or message board were people haven’t been banned or otherwise punished for exercising their constitutional rights.

Now, this could be used as an argument by both sides: the free speech apostles could point out that this kind of self-regulation is working quite well and that therefore no legislative measures are needed. Those more inclined to limit free speech through government intervention could argue that “freedom of speech” is a myth in real life, because a myriad of tacit restrictions already exist and are followed more or less without question, so that an attempt at formalizing some of these restrictions wouldn’t make a qualitative difference (note that were such laws exist in democratic societies, there have only been a handful of convictions and most offenders got away with paying a fine).

81

Tony Comstock 10.25.07 at 11:20 pm

Oh for fuck’s sake, novakant. There’s no constitutional right to post on someone else’s message board, any more than there’s a constitutional right to shit on someone else’s porch.

82

engels 10.25.07 at 11:27 pm

Free speech is one of the areas that even in Bush’s America gets done better and with much deeper thought than anywhere else in the world. You can just ignore that if you want.

(Bangs head against desk) The US has a very good record on restraining the government from suppressing speech. That is obviously not at all the same thing as having an excellent record on free speech tout court. Where in the world is free speech best defended and what does it even mean for a country to defend freedom of speech? I am sure we all have different opinions on that and could argue for days without agreeing. But it is just ludicrous to pretend that it essentially amounts to enforcing the US First Amendment and it is equally silly to assert that the situation in the US is obviously healthier than in other places. In fact, a reasonable observer comparing the US public debate in the run up to the war in Iraq to that in other countries, to give just one example, would likely draw the opposite conclusion.

83

novakant 10.25.07 at 11:29 pm

There’s no constitutional right to post on someone else’s message board, any more than there’s a constitutional right to shit on someone else’s porch.

It’s amazing how a lot of free speech apostles are always very quick to have property rights trump the right to freedom of speech. Considering the fact that almost all outlets for speech such as blogs, newspapers and TV stations are owned and regulated by someone else, the average person’s right to free speech seems to be limited to screaming politically incorrect things in your own backyard, even a pub landlord could restrict your right to free speech by kicking you off the premises.

84

Brett Bellmore 10.25.07 at 11:45 pm

“Considering the fact that almost all outlets for speech such as blogs, newspapers and TV stations are owned and regulated by someone else, … the average person’s right to free speech seems to be limited to screaming politically incorrect things in your own backyard”

Or getting your own damned blog.

Look, forcing the owner of an outlet for speech to carry speech he or she doesn’t want to is, due to the finite bandwidth of any given outlet, functionally equivalent to forcing said owner to shut the hell up. IOW, it’s censorship.

Every word Crooked Timber doesn’t want to carry, but is forced to, displaces words Crooked Timber wants to carry, but as a result can’t. A government armed with the ability to force a blog to carry content it doesn’t want could just point some friendly spammer in this blog’s direction, forbid any effort to filter out the spam, and laugh as all the worthwhile content vanished in a sea of advertisements for time shares and marital aids.

85

christian h. 10.25.07 at 11:55 pm

Well, it looks like it may soon be illegal to call for, say, armed revolution in the US.

86

Brett Bellmore 10.26.07 at 12:01 am

I’d worry more about this attack on freedom of speech, if I were you; If IT passes, it will soon be illegal to campaign against Congressmen who try to make advocating armed revolution illegal.

87

SG 10.26.07 at 12:09 am

Anderson at 55, 70-odd, asked for an example of this:

If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere

and I would suggest that a concrete modern example from England is gypsies/Travellers. They don’t have their own voice, they are universally victims of vicious hate speech, almost all of it unfounded, and you never even see a faceless ordinary gypsy or gypsy family getting a chance to defend themselves in some minor byline on page 9 of a local newspaper. They are voiceless, they are hated, and they have no power. They can’t even exercise power through money – I recall a famous incident in the UK of a gypsy family trying to buy some land to set up a home in a little village, and the villagers all got together and outbid them (the landowner, of course, happily auctioned his land at 10x the real value to the highest bidder).

Some restrictions on venomous speech would certainly help that community.

Also sex workers in many parts of the world have pretty much zero chance to represent themselves as a group. People speak for them, usually to present them as mythically sexual or as sluts. They can be abused routinely in newspapers and in public without comment or criticism; as a group their name is an insult (“you whore”) bandied about frequently without consideration of the women behind it; and they pretty much universally can only engage in public media in the manner in which they are presented by everyone else (e.g. the celebrity madam,etc.) Many places still make it pretty clear that it is not possible for a sex worker to be raped, and they get lesser protection in their private relationships due to this.

I think further that the fat acceptance movement would argue that fat women are pretty much faceless and voiceless in modern society, and particularly in that segment of the media which is targeted at women.

[I am not saying I think hate speech laws should or shoudn’t be aimed at any of these groups – just giving examples]

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matt mckeon 10.26.07 at 12:13 am

I can imagine Dick Cheney licking his chops over the thought of restrictions on free speech.

Think of the false, rotten cruel things that have been said about the brave men and women serving in the military. After Vietnam, dirty hippies cried “baby killer” and spat on our returning heros, and horrible stereotypes of crazed Vietnam Vets polluted our movies and TVs, hurting these veterans chances in employment, politics,and picking up girls in bars. If only this hate speech had been firmly restricted. Then our political leaders could have guided the debate about the war into the proper, appropriate channels. But its not too late: our Iraqi War veterans need those restriction too.

Indeed, what group has been more systematically stigmatized that Southern whites. The media relentlessly bombards us with images of ignorant, shabbily dressed, racist, violent, stupid white Southerners. Is the guy with the drawl the first guy you’d pick to go fishin’ with? Maybe, but certainly not the guy you would consider an intellectual. How many millions of Southern whites have internalized these stereotypes, causing untold psychological, social and economic damage. If only this terrible, hateful image had been corrected, legally. Imagine the brave new tomorrow when patronizing Stepin Fetchin stereotypes like Mayberry RFD, and horrid travesties like Larry the Cable Guy or cinematic nightmares like the Dukes of Hazzard have been cleansed from our culture.

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Antti Nannimus 10.26.07 at 12:21 am

Hi,

>”The elimination of bigotry is a perfectly legitimate aim of government”

Yes, and so is the elimination of pornography, tail-gating, potholes, tippling houses, jaywalking and mosquitoes.

Good luck with that! And let me know how I can help.

Have a nice day,
Antti

90

SG 10.26.07 at 12:36 am

Imagine the brave new tomorrow when patronizing Stepin Fetchin stereotypes like Mayberry RFD, and horrid travesties like Larry the Cable Guy or cinematic nightmares like the Dukes of Hazzard have been cleansed from our culture.

Is this irony? Because I can’t see the problem myself…

Matt’s comment does make clear the fact that for someone to be classified a victim of hate speech, the person in question has to already lack power in some way. That’s why nobody has suggested Dubya himself is a victim of hate speech. To some extent one needs to be unable to defend oneself to be victimised.

(And Matt, I was under the impression that the spitting was something of an urban myth…?)

91

Bob B 10.26.07 at 12:42 am

#74 – “So then what about Lady Chatterly’s Lover? When did it stop being pornographic?”

On 10 November 1960 in England:

“Bookshops all over England have sold out of Penguin’s first run of the controversial novel Lady Chatterley’s Lover – a total of 200,000 copies – on the first day of publication.”
http://news.bbc.co.uk/onthisday/hi/dates/stories/november/10/newsid_2965000/2965194.stm

For an account of what happened in America:
http://web.ukonline.co.uk/rananim/lawrence/lcl.html

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Quo Vadis 10.26.07 at 12:51 am

Anderson @53 asks for examples of the following:

particular groups [that] are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere

How about Aryan Nation or NAMBLA?

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SG 10.26.07 at 12:56 am

quo vadis, Aryan Nation and NAMBLA are organisations to represent groups, not themselves groups subject to hate speech. This means these groups must have some public representation, so one could argue that the hate speech isn’t suppressing them (at least not enough, in the case of Aryan Nation).

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tom bach 10.26.07 at 1:05 am

“On 10 November 1960 in England”
My point was that prior to this it was deemed pornographic/obscene and, thus, censored in England. This point, I had hoped, would show that what we might all call speech, i.e., LCL, was once pornography, which might prove to those who insist that pornography is not speech (outside the USA) that is once was and might be again. But you all knew that already.

“How about Aryan Nation or NAMBLA?”

Both “speak” freely on the internets’ tubes. That no one listens, except — of course — those that do, might indicated the wretchedness of their messages.

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Brian 10.26.07 at 1:14 am

“The elimination of bigotry is a perfectly legitimate aim of government”

Like Hell it is.

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Brett Bellmore 10.26.07 at 1:14 am

“Matt’s comment does make clear the fact that for someone to be classified a victim of hate speech, the person in question has to already lack power in some way.”

Sounds just like that “Minorities can’t be guilty of racism.” nonsense. I’ve never been impressed by the attempts to define offenses so that the people you like can’t be guilty of them.

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matt mckeon 10.26.07 at 1:18 am

Jesus Christ, of course I was being ironic. #46 puts it better than me. Spitting on vets an urban myth? The guys determining what is hate speech are Congressmen and the lobbyists who pay for them. Do you think they wouldn’t employ an urban myth to get their way?
Who is naive enough to think only the proper kinds of speech will be suppressed? Who gives a rat’s ass about groups like the Aryan Nations, people who might as well have “delusional loser” tattooed to their foreheads. Of course holocaust deniers are anti-semitic liars. But restrictions on free speech are not the answer to them. David Irving gets more mileage from his stint in an Austrian jail then his last two books.

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parse 10.26.07 at 1:50 am

“How about Aryan Nation or NAMBLA?”

Both “speak” freely on the internets’ tubes. That no one listens, except—of course—those that do, might indicated the wretchedness of their messages.

But Chris specifically wrote “If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others.”

If NAMBLA does’t qualify because it’s not a group but an organization representing one, why not recast the example as pedophiles. Which might also answer #30’s request for an example of a group stigmatized and marginalized by well-founded claims. Surely many object to pedophiles based on the sheer fact of their sexual attraction to pre-pubertal children.

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Patrick 10.26.07 at 2:20 am

It seems like there is a class of speech restrictions that we can generally all sign on to: those that restrict some kind of formal expression in order to enable a greater equal set of freedoms for all.

For example, you can see parliamentary rules of debate as restricting formal expressions in order to advance the freedom of all. But notice that these formal restrictions are not on the content of speech. Anyone may say anything they want It seems like we could justify campaign finance laws using similar grounds.

But I think we are rightfully much more wary of banning speech due to its content, but I think Chris is advocating similar reasons, public reasons, for the restriction of hate speech.

That is, Chris is not appealing to the falsity of the speech or the moral viciousness of the speech according to some comprehensive view, but is pointing to its effect on people qua free and equal citizens.

That is, he is arguing that this particular deployment of state power is justified, like in the parliamentary case, iff doing so will lead to the protection of a generally greater equal and adequate schema of rights for all.

If we accept the formal cases, then what is so significant about content restrictions versus form restrictions?

It could be on Millian grounds perhaps, but I find this to be odd. The reasons given for the restriction aren’t that they are false after all.

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Brett Bellmore 10.26.07 at 2:37 am

But note that parliamentary rules of debate don’t apply based on content, but instead based on a very restricted venue. They only apply on the floor of the legislature, while it’s in session, and only to members of the legislature. Even members of the legislature who don’t want to be bound by them need merely take it into the hallway.

It seems to me that since the venue campaign regulations apply to is the whole damn country, and the entire population of that country, during the entire period anybody would care to be discussing the topic in question, in a pig’s eye you could justify them on the same basis as parliamentary rules.

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Norman 10.26.07 at 3:38 am

The First Amendment did not define freedom of speech except to say that it should not be censored. As J. S. Mill wrote later, the problem with censorship is that it assumes infallibility. Liberals, as distinguished from partisans of the left, historically have held that it is better to allow all sorts of seemingly unacceptable speech than to try to define what may be censored.

Consequencialist justifications for censorship have generally been rejected by liberals on the ground that speech is not action. Chris attempts to equate speech with action by referring to its feared marginalizing effect when it disparages a targeted group, but American courts have generally rejected such reasoning.

Freedom of speech is qualified when a person is in a role or capacity, but these limitations should not be part of the discussion of the right of free speech as such. For example, the person who is forbidden to make racist remarks in the work place may make them on Main St. after hours. Freedom of association allows you to choose your friends and restrict whom you invite to your parties, but does not allow you to decide which races may enter your store.

Similarly, a free society does not practice thought control. It may permissibly frown on bigotry, but not punish it.

I think Chris reveals his cast of mind when he refers to certain posters as 1st Amendment “parochialists.” Lincoln was familiar with the sort of people who portray liberal tolerance as tender-minded: “But soberly, it is now no child’s play to save the principles of Jefferson from total overthrow in this nation. […] And yet they are denied and evaded, with no small show of success. One dashingly calls them ‘glittering generalities.’ Another bluntly calls them ‘self-evident lies.’ […] These expressions, differing in form, are identical in object and effect–the supplanting of the principles of free government . . .”

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Carter 10.26.07 at 3:58 am

“the elimination of bigotry is an important and legitimate part of at least one area of public policy: the education system. Children should, contra, Kamm be taught that racism (along with sexism, homophobia etc) is deplorable and it is very much part of the government’s business to see that they are.”

Schools are a poor place to teach such a message. Why not set up education camps, which are mandatory for all children to attend? Children who attend the camps but fail to adopt the mandated morality can be segregated from the rest of society to ensure no one who believes the correct things has his freedom and equality undermined.

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Patrick 10.26.07 at 4:06 am

Hmmm, I suppose I should bow before the “pig’s eye” objection.

But my question would be, “Why should the two disanologies you mention matter?” What we have is a formal restriction on speech, not on content, that produces a greater equal and adequate schema of speech freedom for everyone?

No content is restricted by campaign finance laws. Money isn’t speech; it is a medium of expressing speech. But it doesn’t seem to me that all mediums for expressing speech-content have to be equally respected as long as one’s ability to effectively express the speech in other ways is not restricted.

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c.l. ball 10.26.07 at 4:12 am

Far from liberty being endangered by hate-speech legislation it may—and whether it is depends very much on the specific social and historical circumstances—ensure that many people continue to enjoy effective liberty.

But this means that it is justified to ban hate-speech when it is least likely to be banned. The ideal time to ban hate-speech was when Hitler was in power, not after Hitler killed himself and the Nazi regime was deposed and its hateful immorality exposed.

I agree that there is no reason to defend hate-speech as such anymore than there is reason to defend libel, slander, or threats as such. But that is not really the debate that emerges over hate-speech legislation — it is whether the legal language covers more speech than it is justified to cover. Does saying “There is no proof the Holocaust existed” constitute hate-speech in the same way that saying “Jews are inherently stupid, depraved and deceitful”? The former is a hurtful claim (and a false one) about historical events; the latter is a hurtful claim (and a false one) that implicitly urges its audience to marginalize and stigmatize Jews, the reason for which Bertram argues hate-speech as such should be banned.

The issues is whether the justification for banning hate-speech — defined as false utterances * intended to marginalize and stigmatize a group — is likely to achieve its end. The polity that bans all hate-speech is the polity where such hate-speech is least likely to actually marginalize and stigmatize.

Re Quiggen’s point and responses on defamation, one major difference in most discussion of hate-speech is whether it is a civil matter or a criminal one (i.e., those harmed sue v. the state prosecutes). In the US, defamation is a civil, not criminal matter.

I find Bertram’s disdain for treating political advertising as speech rather bizarre. If I take out a broadcast ad saying “Vote X” I am speaking to a larger audience than if I stand on a corner and literally say “Vote X” or if I hand out flyers doing the same. Permitting me to say “Vote X” only if I don’t spend any money or more than some amount in saying so clearly limits my ability to be heard.

The UK sets rather generous limits for its “third party” expenditure and virtually no limits on donations. The US restricts individual and PAC donations to any one third party (‘political committees’ in US jargon) to $5,000 per year but only regulates expenditure via broadcast, cable, and satellite media (not print or internet). What most of these restrictions do is privilege established major parties over any challengers. That is, the aim the legislation is to marginalize third parties.

* The speech must be false or else the argument is that truth must be suppressed if its consequences serve to marginalize and stigmatize. So, Nazis may be marginalized and stigmatized because the make false utterances that marginalize and stigmatize. So could a bigot be treated because a bigot makes false claims.

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SG 10.26.07 at 5:16 am

c.l.ball said

But this means that it is justified to ban hate-speech when it is least likely to be banned. The ideal time to ban hate-speech was when Hitler was in power, not after Hitler killed himself and the Nazi regime was deposed and its hateful immorality exposed.

but I think this is taking an extreme (and dare I say, irrelevant) example. I am good at getting these things wrong, but I presume that Chris framed this discussion in the context of a functioning state which on the face of it exists to benefit all its citizens (i.e. a liberal state). I don’t think this debate is intended to be framed in the context of a state rapidly sliding into fascism, total war and total destruction. (Sorry if I’m wrong about that, Chris). Our question here is not “how could banning hate speech have stopped Hitler”, but “how could banning hate speech in our society help to promote equality in that society”.

This is why I chose two (and a half) examples from our current liberal states, which concern minorities which are not in and of themselves going to be used as tools to sieze power by a scape-goating fascist wannabe. They are manifestly not dangerous, nothing that is said about them is true (or in the case of sex workers even could be “true” in an objective sense, since the claims made are based entirely on a particular moral view of sex). There is no real risk that gypsies will ever have a significant effect on politics or economics in England (unless they harbour a secret, virulent disease which will destroy good white people). Hate speech against gypsies serves to keep the deferential tory working class confident in their own “superiority” and nothing else, yet does huge damage to the gypsies.

So, this hate speech serves only to reduce the general equality of our society. So even if curbing bigotry were not a legitimate goal of the state, from the perspective of furthering the equality of citizens, surely something should be done about this hate speech…?

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SG 10.26.07 at 5:24 am

On the subject of NAMBLA and paedophiles, I generally feel uncomfortable when I see “authority figures” (e.g. govt figures, media spokespeople, and reporters) talking in really unpleasant ways about anyone, no matter what they have done. I don’t approve of Cheney calling the Guantanmo Bay inmates “the worst of the worst” and all that other guff; I didn’t like John Howard referring to refugees as “those kinds of people”. Similarly, I don’t like a lot of what is said about paedophiles in the modern media. To me they are criminals, and criminals should be punished for their crimes but afforded the respect and basic humanity which all human beings (except maybe Brett Bellmore, if he is indeed not a conservobot) deserve simply for being human.

I know this is probably considered radical by some members of our community who think criminals have foregone their rights, or paedophiles are “special”. But to me a lot of what is said about paedophiles is hate speech. It serves to prevent them being given the basic human dignity all people deserve, and is therefore nasty. For example most people will not employ a paedophile even though the job might not require any sensitivity to a paedophile’s special predilections. This is a removal of that person’s rights, and to the extent that people find this easier to do because of the pervasive effects of hate speech, then yes, that hate speech is having a negative effect on our society.

So no Bellmore, I don’t believe hate speech should be defined in such a way as to apply only to the people I “like”. Not that I really needed to answer such a puerile point in the first place…

107

a 10.26.07 at 5:27 am

“Would any of those who argue for complete freedom of speech support a modern day newspaper printing some of the anti-Semitic cartoons of the first half of the twentieth century, the ones with hooked-nosed Jews dripping with blood? “

Yes.

I also support (and supported) the right of the Nazis to march (peacefully) through Skokie.

I am deeply offended by the French law banning holocaust denial.

I believe that one should be allowed to desecrate the American flag, in any way, shape or form.

108

HipHopLawyer 10.26.07 at 5:37 am

I disagree that “hate-speech, as such, has no value”.

One example that immediately comes to mind:

There will always be people, and groups of like-minded people, that “hate” others for reasons of bigotry (which I’m thoroughly unconvinced you can define narrowly enough to start jailing people for it). When these haters are allowed to speak freely (and publicly, as opposed to in secret, as they would under your unfree-speech regime), and do speak freely, their hate-speech can (and undoubtedly will) be used by right-minded folks to oppose the speakers’ underlying bigotry in the public marketplace of ideas. I would suggest that this type of hate-speech almost always convinces far more people of the wrongness of the speakers than it convinces people to join in the speakers’ bigotry.

I’m sure there are other examples. It is somewhat counterintuitive, but sometimes the wrongness of speech is in itself a positive.

109

novakant 10.26.07 at 5:41 am

Or getting your own damned blog.

Which would amount to the same thing as shouting politically incorrect tirades in your backyard. Look, I’m only pointing out that treating free speech as some abstract, holy good, without taking into account the socio-economic realities of its practice is a bit naff and disingenuous. Most radical free speech apostles are arguing from a position of false comfort, knowing that the truly radical and dangerous voices don’t stand a chance anyway. Should this situation change for any reason, should Fox News tomorrow start broadcasting racist hate speech 24 hours a day or should the Aryan Nation acquire some real political and economical power, I’m sure most of them would want to reexamine their stance.

110

HipHopLawyer 10.26.07 at 5:53 am

oh, and also:

dictating what a person can and cannot say, and enforcing such rules by threat of violence and incarceration, is pretty much the definition of “tyranny”.

111

a 10.26.07 at 6:03 am

“Should this situation change for any reason, should Fox News tomorrow start broadcasting racist hate speech 24 hours a day or should the Aryan Nation acquire some real political and economical power, I’m sure most of them would want to reexamine their stance.”

Not at all. If such were to occur, it would seem the last thing one would want to do is to ban the speech, which would seem only to make the situation worse.

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novakant 10.26.07 at 6:45 am

it would seem the last thing one would want to do is to ban the speech, which would seem only to make the situation worse.

Why? In the case of Fox News it would cut off their revenue stream until they stop doing that, which they would have to very quickly, since they’re a commercial enterprise.

The example of the Aryan Nation is trickier to judge: one would have to look at cases were such groups were allowed to operate freely and then banned or vice versa. Then one could analyze, if their influence has risen or fallen due to the changes. My intuition is, though, that in a case like Germany, where such activities have always been illegal post-war, you wouldn’t see a change for the better, if you allowed them to express themselves freely, rather the opposite, since most of the existing members are not open to argument, while those currently standing on the sidelines might join them, if it didn’t have legal repercussions.

Be that as it may, I can live with the neo-nazis there having their right to free speech curtailed, in exchange for not having to watch them marching through the Brandenburg gate brandishing swastikas and singing Nazi songs.

113

magistra 10.26.07 at 6:48 am

The problem with the view that ‘if we allow free speech the bigots will get drowned out/ridiculed’ is that it manifestly hasn’t worked a number of times. There was free speech *about Jews* in Europe before 1939 (in the sense that no-one would get prosecuted whatever vile things were said about that group). And the normalisation of hatred against Jews and the widespread belief that they were subhuman helped lead to the measures taken again them. Just as popular belief in the blood libel in late thirteenth century England was the background for the expulsion (=ethnic cleansing) of the Jews. Similarly, how would you treat the equivalent of Hutu ‘shockjocks’ in Rwanda? If someones repeatedly claims in radio broadcasts that Tutsis are subhuman, polluting Rwandan society, but does not specifically say ‘We should kill them’, are they innocent when the massacres start? And is it better to do something before the massacres start?

These, were not, of course, democratic countries, but how many people even in the US can be confident that there would never be a movement that a) demonised a particular religious/ethnic group, which b) led to government legislation persecuting these people and denying them their normal constitutional rights? I am not, at the moment, frankly confident that any constituion, however marvellous, will necessarily stop this happening. If an American citizen can lose all his rights because of an unsubstantiated claim he’s a terrorist, what stops Communists/Jews/atheists/kulaks losing all their rights because they’re a danger to the state? How do those who support free speech think we can prevent the normalising of hatred?

Based on these kind of examples I would say basic criteria for defining dangerous hate speech would be

a) use of public platforms: mass media, addressing organised meetings (I wouldn’t automatically include websites, but consider viewing statistics etc).

b) frequent repetition of sub-humanising rhetoric about particular ethnic/social/religious/political groups. In particular, things like comparing groups to animals, any language suggesting disease etc. It’s not Muslims breeding like rabbits but rats: with the implication of diseased vermin and polluting a cherished culture (which is what ‘pissing in the font’ means.

c) implied intention or extreme recklessness about the arousal of violence/loss of rights as a result. This is situational, but it’s the sort of thing that a jury could decide. It’s more serious to call Jews ‘lower than vermin’ than the upper classes, or to say that Muslims should be systematically harrassed than anti-monarchists strung-up, because it’s more likely to happen in a particular culture. Saying that Democrats are all traitors isn’t likely to result in them being rounded up and interred; saying that Japanese-Americans were all traitors was likely to. (Intention would also allow the exclusion of academic studies of blood libel etc).

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Steve Sailer 10.26.07 at 6:58 am

Professor Steven Rose apparently has a history of practicing what he preaches: governmental censorship of scientific inquiry. East German academic Volkmar Weiss says that Rose ratted on him to the East German dictatorship, setting in motion the crushing of the study of human behavioral genetics in East Germany. Weiss wrote in 1983, in an essay not published (for obvious reasons) until 1991:

“In 1980, the manuscript of the monograph “Psychogenetik” (Weiss 1982a) was complete. Now some fierce dogmatists were discovering that a cuckoo’s egg had been laid in the nest of socialism. One example: S. Rose asked his East German colleague, the professor of neurochemistry D. Biesold at the Karl-Marx-University of Leipzig (personal communication by Biesold), whether there was no means of stopping further publications by Weiss, because such publications printed in a socialist country were particularly disadvantageous to the progaganda of the Radical Left in the Western world. Consequently, in 1981 a battle raged in East Germany between proponents supporting the publication “Psychogenetik” and its Marxist adversaries. … at the end of the year 1982 Friedrich sought and obtained the backing of high-ranking officials of the Communist Party and all further research in psychogenetics in East Germany came to an end.”

“Hans Eysenck (1982) has discussed the relation between Marxist ideology and the measurement of IQ and claimed that Weiss’ East German research would show that Marxism and IQ were not an intrinsic contradiction, as claimed by the political Left in the West. The irony of Eysenck’s arguments was that at the very time the cited author was under the threat of arrest and had already lost all possibility of doing further empirical work of defending his field of research. After 1984, Weiss was forced to work in a quite different field (for results, see Weiss 1990b). What follows is the usual story of life and resistance under totalitarian conditions. In order to be published abroad, any new theoretical contributions had to be smuggled out of the GDR.”

http://www.volkmar-weiss.de/lysenkoism.html

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Roy Belmont 10.26.07 at 8:00 am

#110-“…should Fox News tomorrow start broadcasting racist hate speech 24 hours a day…”
FOX, CNN, MSNBC – pick one or all of them. If by “24 hours a day” you mean lots of it, barrages of it, then look at the way at any moment an egregious and gratuitous instance of anti-Arab or anti-Muslim bigotry might pop out of the television and into the living room – we’re already there.

116

abb1 10.26.07 at 8:01 am

Yeah, I think it’s pretty clear that specific categories of ‘hate speech’ under specific circumstances can legitimately be banned, provided that there is a very compelling practical reason. Pro-Nazi propaganda in Germany, anti-Chinese propaganda in Malaysia, etc. I think it’s also pretty clear that these is no justification for a blanket prohibition for the sake of equality, justice, etc.

If, say, someone in Alabama publishes and distributes a anti-Serb leaflet, there is no apparent reason for the government to intervene. But if someone in Kosovo does it, then maybe there is.

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novakant 10.26.07 at 8:40 am

Let me just note that Volkmar Weiss is a racist pseudo-scientist, just like Sailer, but with a PhD and overt neo-nazi connections. The publisher of his book on IQ has works such as “Rudolf Hess – I regret nothing”, “Adolf Hitler – Friend of My Youth” and the memoirs of the prominent Austrian neo-nazi Otto Scrinzi. One of his main claims is that Turkish immigrants have, wait for it, a lower IQ than Germans and are thus responsible for the decline of the nation; he said similar things about “gypsies” and “negroes”.

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Brett Bellmore 10.26.07 at 10:41 am

My position is two-fold.

1. Error does have rights. Because it’s people who error, and people have rights.

2. How hard is it to understand, when you advocate laws saying error has no rights, that governments define “error” as, “what the government disagrees with”?

All these supposedly liberty minded people, rushing to forge their own chains, secure in the conviction that people like them will decide who the chains get put on…

Or getting your own damned blog.

“Which would amount to the same thing as shouting politically incorrect tirades in your backyard.”

Oh, I see, you don’t want the right to speak freely, you want the right be listened to, and are smart enough to realize that this requires forcing somebody people DO want to listen to to shut the hell up.

119

mq 10.26.07 at 11:04 am

Of course speech can hurt peoples’ feelings, the reason we allow free speech is that we judge that its benefits are greater than the costs of asking people who have their feelings hurt to just get over it. Certainly this post doesn’t even begin to deal with the many benefits of free speech and the huge costs of restricting it.

restrictions on speech that are alleged to flow from the idea that we own one another respect

A very telling typo.

120

Steve Sailer 10.26.07 at 11:11 am

So, we can tell which side novakant would have been on in the struggle between the Stasi and the dissident social scientists in the 1980s — the same side as Steven Rose apparently was!

By the way, the first study of Turkish average IQs was done by Wilhelm Peters, while in exile at the University of Istanbul. Peters was fired from heading the psychology institute at the U. of Jena in 1933 because he was Jewish. Because Peters had found that German Jews averaged 115 IQ, the Nazis eliminated IQ testing. So, it looks like Weiss and Peters have a lot in common, just like Rose and novakant do did, as did the Gestapo and the Stasi.

http://translate.google.com/translate?hl=en&sl=de&u=http://www.volkmar-weiss.de/iq-falle-peters.html&sa=X&oi=translate&resnum=1&ct=result&prev=/search%3Fq%3Dwilhelm%2Bpeters%2Biq%26num%3D30%26hl%3Den%26c2coff%3D1%26safe%3Doff%26client%3Dfirefox-a%26rls%3Dorg.mozilla:en-US:official%26hs%3DQb0%26sa%3DG

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DaveHill 10.26.07 at 12:12 pm

As I child I was taught the following;

“Sticks and stones will break my bones,
But words will never hurt me.”

I never really bought that one, I’m afraid.

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aaron 10.26.07 at 12:16 pm

Do you truly believe this is a good idea? Yes, it is disgusting and idiotic to speak so terribly of people. But we do have a right to be that way. This is obviously a free speech issue. Let the morons say what they will. we should embrace the “words can never hurt me” idea.
Children cry when they are called names…adults should learn know that it’s not a “me” problem…it’s a “you” problem.

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SG 10.26.07 at 1:15 pm

Let the morons say what they will. we should embrace the “words can never hurt me” idea.

Oh for fucks sake. What next, Humpty Dumpty as model for Iraq policy? The busy squirrel as Libertarian health insurance paradigm? maybe we should tell all the poor people that “it’s what’s inside that counts”? Playground bullshit as policy prescription reaches new heights here.

But the really sad thing is it’s not even true. Everyone who was actually bullied at school knows that it never stops with the words. If you think that you can just turn your back and walk away – and that even if that tactic works for you, it will work for everyone else – well you are either a fucking idiot, or a naive fucking idiot. The only way to stop it becoming nasty is to fight back. And how do we do that in the adult world…?

“This is obviously a free speech issue”… “it’s not a ‘me’ problem”… sheesh…

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jayann 10.26.07 at 1:42 pm

engels, 37, yes indeed. But I also liked (and hence my posting the link) his

At best, it is the boutique faith of a few liberals who take the resilience of their own voyeurism as a sign that speech is really harmless. If it signifies anything, what it signifies is that the costs of hate speech, such as they are, are not spread evenly across the community that is supposed to tolerate them. The Robert Relfs of the world may not harm the people who call for their toleration, but then few of them are depicted as animals in posters plastered around Leamington Spa. We should speak to those who are depicted in this way, or those whose suffering or whose parents’ suffering is mocked by Frank Collin and his Nazi colleagues, before we conclude that tolerating this sort of speech builds character.

I thought I’d also quote this

Beliefs are also facts. People often act in [329] accordance with the images and patterns they find around them. People raised in a religion tend to accept the tenets of that religion, often without independent examination. People taught from birth that black people are fit only for slavery rarely rebelled against that creed; beliefs coupled with the self-interest of the masters established a social structure that inflicted great harm while enduring for centuries. Words and images act at the level of the subconscious before they persuade at the level of the conscious. Even the truth has little chance unless a statement fits within the framework of beliefs that may never have been subjected to rational study.

Therefore we accept the premises of this legislation**. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. [note 2] In the language of the legislature, “pornography is central in creating and maintaining sex as a basis of discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it produces, with the acts of aggression it fosters, harm women’s opportunities for equality and rights [of all kinds].” Indianapolis Code § 16-1(a)(2).

**Catherine MacKinnon’s Ordinance. The Court whose opinion this is then ruled that the Ordinance (which did not ban pornography, but whose trafficking clause could, were a suit successful, have amounted to a ban) was unconstitutional.

Speech (and ‘speech’)can harm not only in the ‘sticks and stones’ sense but in a wearying grinding down sense and indeed, as the Court makes clear, worse.

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Tracy W 10.26.07 at 2:15 pm

People taught from birth that black people are fit only for slavery rarely rebelled against that creed

I don’t believe this. In England, in 1783 the first English abolitionist organisation was founded, and the first abolitionist legal victory was in 1807. A 24 year gap between the start of the movement and its first political success implies that a fair number of people who supported the passing of the Slave Trade Act in 1807 were rebelling against a creed they had been taught from birth.

In the northern US states, the first abolitionist group was founded in 1775, and slavery abolished in 1804, again a time frame that implies that people changed their minds within their own lifetimes.

People change their minds within their own lifetimes all the time. If we broaden the topic to everything people have been taught from birth, there have been ample examples of substantial changes in opinion. For example, the experience of WWI got rid of a lot of the “it is glorious to die for your country” sentiment. The conversion to Christainity amongst Maori in the early 19th century happened too fast to be attributed to people continuing with the beliefs they were taught from birth.

The support of a majority of white US southerners for slavery is amply explained by the economic importance of slavery to the economy, we do not need to add in assumptions about people being taught things from birth. Meanwhile southern US blacks may have been taught from birth that they were only fit to be slaves, but I’ve never come across any accounts that indicated that they believed it. The number of slaves who escaped north rather implies otherwise. People think for themselves. Not necessarily nice things, but we don’t just mindless repeat our upbringings.

And, of course, the flip-side of your argument is that, if people rarely rebel against something they are taught from birth, then how would a government be capable of passing and enforcing laws to stop people thinking it? Governments are made up of people too. If everyone believes that certain people are fit for slavery, then everyone in government believes that, and they won’t pass laws banning people from saying that. I don’t know of any government that has tried to ban people from saying that children are not as morally responsible as adults.

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SG 10.26.07 at 2:51 pm

tracy w, there are many governments which have passed liberating legislation against the general belief of their populace. It is the role of governments to lead, and often they do. The people follow, often because they trust their leaders to make complex decisions about society which are based in a wider view of that society than any individual has. The history of land rights and public health in Australia is an example of that. Look at the response of non-US governments to HIV and sex work issues as an example.

You are buying the line that the state is always and everywhere dragged forward by the people. The relationship between the two is not that simple.

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Tracy W 10.26.07 at 4:17 pm

there are many governments which have passed liberating legislation against the general belief of their populace

I have never seen a Government that passed legislation against the general belief of the people making up that Government.

You are buying the line that the state is always and everywhere dragged forward by the people.

This is because in my experience the state is made up of people.

The people follow, often because they trust their leaders to make complex decisions about society which are based in a wider view of that society than any individual has.

Weird view. What are leaders if not individuals?

I think what you meant to argue is that the people making up a government may hold a different view from the majority of voters. I agree with this, I know many times when a government has ruled despite only having a minority of the popular vote (let alone the whole population). But, if a view is popular enough to get government support, even if it’s a minority view overall, it’s popular enough to survive and thrive without government support. If it’s something that everyone believes, then what makes you think the people who make up government think differently?

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jayann 10.26.07 at 4:32 pm

tracy w, slavery was finally declared illegal in England in 1772 (by a judicial ruling), and the remaining 10-14,000 slaves were emancipated. It’s unclear that before that or before 1807 (abolition of the slave trade; parliament, but with public support) most English people had been brought up to think black people were fit only to be slaves.

(I’m not suggesting white English abolitionists thought of black people as their equals.)

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Planeshift 10.26.07 at 5:08 pm

“Similarly, how would you treat the equivalent of Hutu ‘shockjocks’ in Rwanda? “

Thats probably the toughest test of the “free speech for all” position. It is clear that the hutu power shockjocks are partly responsible for one of the worst crimes against humanity of the 20th century, and without them things are likely to have been far less tragic.

But in a way it also teaches us something of the nature of crimes against humanity. Far from simply having the ability to prevent the hutu radio stations broadcasting hate speech and choosing not to use it on liberal lines (which is one thing), the Rwandan government of the time was actually funding the radio stations and using them as part of its genocidal plan – which is another thing entirely.

The fact is that genocides and mass discrimination against minorities is rarely the result of groups acting alone whilst their liberal governments turn a blind eye. Governments are often highly involved with the atrocities. I suppose in the hypothetical world where temporary restrictions on free speech can prevent atrocities then I would support it reluctantly (usual caveats of last resort etc) in the same way others have supported the temporary restrictions on speech during times of war (i.e you can’t spread enemy propaganda) – although I don’t agree with them in this case.

However hypotheticals are only partially useful, in the real world such situations rarely occur. Mass levels of violence usually involve governments and elites, and usually can be improved by fewer restrictions on free speech not more. Solutions to racism rarely come from governments but the grassroots.

In the real world I think there are far more effective and legitimate ways to tackle hate speech; ridicule (frankly there is something pathetic and comical about white supremacists), boycotts, employers firing racists (it doesn’t make sense to be rude to customers), education etc.

Having said that I fully support making racism an aggravating factor when considering the punishment for criminals, and think it is entirely legitimate for the state to promote anti-racism in schools and public bodies in the same way as it is legitimate to promote good sexual health to combat HIV. But putting people in prison purely for being racist jerks is not a sensible road to go down.

Having said that I

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Planeshift 10.26.07 at 5:12 pm

Oops, ignore last sentence.

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PSP 10.26.07 at 10:32 pm

If anyone were idiotic enough to go forward with this, about two and a half minutes later there would be a prosecution of someone complaining about CEO salaries as classist hate speech.

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Nat 10.26.07 at 10:36 pm

Lbrls thnk tht ht spch s bsltly fn jst s lng s t’s drctd gnst th rght ppl — th ns wh dsrv t. Whts, mn, htrs, ppl wh dsgr wth lbrls.

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Knemon 10.27.07 at 5:37 am

“No law means *no law*.”

– Justice Black

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mq 10.27.07 at 5:51 pm

“words can never hurt me” is the core of the issue, though. One can reasonably learn to rise above words in a way that one cannot rise above a punch in the face. Asking adults to learn this skill is very valuable.

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harry b 10.27.07 at 8:31 pm

mq — do you oppose laws against defamation, threats, and slander?

And, while I agree that it is a good idea to teach people to deal with the hurt that words cause, it is not a good idea to teach that words should never hurt, because it is demonstrably false. An emotionally healthy person will often be hurt by words, and find it more challenging to rise above that than many minor physical assaults. Some speech acts in some circumstances are sufficiently hurtful to an emotionally healthy and reasonable person that they should be prohibited. That is why we have laws against threats, even when it can be demonstrated after the fact that those threats could not be carried out. Some use of hate speech is relevantly like a threat, and the users and victims know that perfectly well. Figuring out which is not harder than figuring out what acts are threats or what acts constitute slanders.

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engels 10.27.07 at 9:10 pm

“Words can never hurt me” is honestly a terribly glib response to the issues being discussed here. In addition to Harry’s last comment (which I completely agree with) there is the point I made at #23, that words can cause harm (even in the most restricted sense) through the agency of third parties, which is the rationale behind laws against incitement.

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m 10.27.07 at 10:32 pm

If the concern is harm and we’re committed to equality before the law, perhaps we should argue for legislation banning speech that hurts another individual’s feelings regardless of who they are.

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harry b 10.27.07 at 10:34 pm

But hurting people’s feelings isn’t what is at issue here. No-one proposes protecting people from that.

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courtjester 10.28.07 at 6:56 am

Here’s some hate-speech for you:

‘There is a powerful zionist lobby in the US.’

So let’s have some hard-hitting legislation, immediately, while philosophers wrangle with racist science and associated insoluble dilemmas.

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jayann 10.28.07 at 5:41 pm

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Sweating through Fog 10.29.07 at 12:49 am

“If particular groups are so stigmatized and marginalized because of hate-speech messages that their members cannot get their voices heard in the public sphere (they may speak, but most people will not listen to people like them) then the freedom and equality of citizens is undermined, and the formal right that those people have to legal, civil and political equality is of lesser value than the formally similar rights of others.”

Hate speech laws aren’t designed to make people listen – they are designed to shut people up. And they are futile for advancing the interests of marginalized people. I wrote more on this issue in my blog.

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Mitchell Young 10.30.07 at 6:35 pm

Unfortunately, Prof. Bertram lives in the UK — there is no free speech. Differences of opionion on policy matters can be criminalised, as can be statements of scientific findings. In fact, the Labour party and the state-run media (BBC) teamed up to prosecute the head of the BNP for expressing his opinion about Islam. Of course, the decision to put Nick Griffin through two trials (one hung jury, one total equital) had nothing, nothing at all to do with the BNP’s gaining vote share amongst the white working class. Nothing at all.

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