The elimination of bigotry is a perfectly legitimate aim of government

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.

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?

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 . . .

…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]

“_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.

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.

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.

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

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.

‘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.

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.

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.

“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?

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

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’.

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

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?

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.

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.

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

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.

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.

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

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.

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?

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.

“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”.

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.

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

#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.

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.

#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.

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

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.

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

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

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.

“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.

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.

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.

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

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]

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

#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

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).

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

Like Hell it is.

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.

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.

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 . . .”

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.

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…?

“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.

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.

“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.

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).

#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.

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”.

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.

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.

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…

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.

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?

“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

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.

“No law means *no law*.”

– Justice Black

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.

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.

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.

“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.