The Harm in “The Harm in Hate Speech”

Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.

Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.

Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.

Waldron also points out that it’s easy for those who are not the vulnerable targets of hateful speech to champion defending that speech. This is no doubt true. However, many of the most vocal proponents in favor of protecting hate speech are potential hate-speech targets. Consider Jonathan Rauch, whose book “Kindly Inquisitors” vehemently argues that hate speech should remain protected because of the historical connection between free speech and the advancement of ideas. Rauch is openly gay, and therefore belongs to a group that is subject to some of the most vicious and ignorant speech in this country and abroad, a group that literally does not yet have equal standing under American laws. As someone who has felt the sting of anti-Semitic remarks, personally and in the political realm, I shudder at Germany’s laws against anti-Semitic speech. Germany’s hate speech laws are a well-meaning attempt to guard against a repeat of that country’s tragic history, but suppression of pure speech has historically been undertaken by the enemies of Jews – the Nazis, Iran’s president – and usually leads nowhere peaceful. It is not only those who never experience hate speech who reject the solicitude of hate speech restrictions.

As mentioned in April, I formerly worked for the Foundation for Individual Rights in Education. While I was there, the country was fascinated by a campus incident involving what could be described as a clash of free speech and minority students’ sense of equal standing. This incident demonstrated that, instead of feeling victimized, many students are empowered by their collective efforts to speak out against expressions of bigotry. In March of 2011, a student at the University of California, Los Angeles (UCLA) posted a racist rant about the behavior of Asian students at her school on YouTube, and this unintentionally viral video inspired a torrent of creative, and often humorous, parodies challenging stereotypes of Asians. Some of those videos also suffered from a degree of stereotyping or degrading speech against women and against those of European descent. Luckily, the university realized that all of the videos were speech protected by the First Amendment and did not take punitive action against any of the students. I believe the UCLA community has been enriched by this airing of viewpoints.

This country is at a crossroads regarding the extent to which we are willing to sacrifice pure speech for values like public order, the appearance of a just society, and protection from humiliation. Despite the Supreme Court’s recent 8-1 decision in Snyder v. Phelps, which deemed protected against civil damages the noxious, anti-gay, anti-American, undignified, and nonsensical speech of the Westboro Baptist Church when protesting soldiers’ funerals, society’s increased focus on the issues of “cyber-bullying” and harassment in the educational setting has prompted legislation and executive action that may infringe upon protected speech. We are moving closer to defining the hurdle of harassment much lower, at the detriment of free speech, to protect people from offense.

My fear that hate speech regulations, as Waldron defines them, may be deemed constitutionally viable in the future, or that we may slowly chip away at the sense that we cannot restrict pure speech to protect vulnerable individuals or groups, is why incisive and genuinely compassionate, yet easily misused, books like Professor Jeremy Waldron’s should be analyzed and disputed at every turn.


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9 Responses

  1. Erik Encarnacion says:

    “Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.”

    This seems a bit quick. What does the second sentence mean, in particular? What conception of equality is Waldron working with? What conception does your reply presuppose? I think the question of whether there’s a genuine conflict or not — between you and Waldron, on the one hand, and between the values of equality and free speech, on the other — may depend on your respective specifications of equality. As it stands, it’s hard to evaluate your argument on this point.

    Also, out of curiosity, are you an opponent of the tort of defamation (American-style)? Does Waldron address possible parallels between that tort and hate speech?

  2. Erica Goldberg says:

    Ah, Erik, this is a fantastic point. I believe Waldron and I are using the same conception of equality- a society where you have equal rights under the law and equal status, mobility, etc. Waldron’s point is that visible appearances of hate lead to a fear that this equality is vulnerable. I believe that I share his views on equality but greatly differ on what can be done to preserve the appearance of equality. For instance, Waldron and I likely agree that prohibiting gay marriage is unconstitutional (this is pure speculation for the purpose of the hypothetical), but disagree about whether the WBC can hold up signs stating “God Hates F-Gs.”

    Because of the blog format, I fear I did not do justice to the subtlety of Waldron’s argument. Professor Waldron proposes a sensible balancing of interests, although one that may be too subtle to administer, and one that tramples upon America’s free speech exceptionalism. There is no right for one’s beliefs to be immune from attack, he argues, but citizens should be entitled to protection against assaults upon their dignity. We should be free to attack the religion of Islam and the Prophet Mohammed, he argues, and even to draw a cartoon that straps a bomb to the Prophet’s back, but we cannot publish cartoons depicting all Muslims as terrorists. Visible signs of hatred of this nature, that ascriptively characterize members of minority groups as sharing dehumanizing or unflattering qualities, undermine the sense of security in their equal social standing that Waldron believes should be guaranteed to members of minority groups.

    As for defamation law, I’m certainly a larger proponent of it in America than other countries. I don’t entirely subscribe to the great dichotomy drawn between public figures and private figures, which is central to Snyder v. Phelps. Waldron’s article in the Harvard Law Review compares hate speech to group libel, btw.

  3. Jonathan Perle says:

    Professor Goldberg,

    You and I would appear to stand shoulder-to-shoulder with respect to our views on the First Amendment. I would only add that there is a fundamental flaw with Waldron’s argument at a practical level – even if it were implemented it would fail to achieve its objective. Hatred of groups cannot be suppressed by laws prohibiting expressions of hatred. Those who harbor an animus toward another group will find each other – through friends, through the internet – and make their voices heard. They will simply be anonymous bigots in Waldron’s world, instead of out in the open. Governments in a free society cannot indoctrinate their citizens to love or respect each other. Only in totalitarian societies, where propaganda and control are complete, such as Nazi Germany or North Korea, can the populace be made to believe something about another group without any external influences offering a counter viewpoint. The only true way to stamp out the hatred that Waldron seeks to eliminate is therefore to destroy those who hate or convince them they are wrong. The former is certainly unacceptable in a free society and the latter can only ever be partially achieved. However, just because partial success is the best we can hope for (as it is in so many things) that does mean that ineffective (does anyone truly believe there are no racial issues in Denmark, even if talking about them is suppressed) and overbearing laws will make a difference.

  4. nidefatt says:

    First they came for the Nazis…

    To the extent that our society values variety, the marketplace of ideas will survive. I think most people who don’t have an ax to grind or a buck to make off the ignorant understand that “hate crime” is blasphemy as a concept. Eventually I suspect we will get the Supreme Court to make it clear that Wisconsin v. Mitchell was never a seal of approval on outlawing actions when motivated by a particular set of beliefs.

    What would be more meaningful to me is an intellectually honest discussion of terrorism laws. They are, at their heart, hate crimes. I want to see someone stand up against the popular sentiments that we’re punishing “terror” when the reality is we’re punishing thought and the under reality is we’re waging a war on religion and ethnicity.

  5. Brian says:

    I am about to post my own fairly critical review essay of the Waldron book, and so one of my law school’s ever vigilant librarians directed me to your post. I’m a little unclear on what your actual argument against Waldron’s position is supposed to be. Is it that regulating hate speech will yield bad consequences? But many countries that regulat hate speech, including Germany and Canada, have extremely robust political cultures, with a far wider array of positions represented than in the United States. So why isn’t that evidence against your preferred skeptical induction? But maybe that’s not your objection to Waldron, but if not, then what is it?

  6. Erica Goldberg says:


    In addition to the fact that regulating “hate speech” would fundamentally alter America’s unique protections for free speech and greatly disturb the jurisprudence, yes, I believe that bad consequences would follow.

    The blog post was intended to show why Professor Waldron’s points are not compelling. After all, Professor Waldron has the burden of proving harm sufficient to remove an entire subset of speech from protection based on the speech’s content. In this country, rebuttals to hate speech can be quite productive, and necessary, to political discourse, and can often remove the stigma of that hate speech. I was providing an example of that in practice.

    That said, yes, I believe that negative consequences flow whenever speech is systematically stifled. There are countless examples of Canada, Germany, and other countries misusing their hate speech statutes to prosecute dissenting opinions. I don’t think the variance in political views in other countries (if they even are more variable) is the best measure of the benefits of free speech. There is also proxies like pursuit of innovation and discovery (while we might not think hate speech is particularly generative of these things, having a robust speech culture where people feel free to be controversial/offensive is), and there is the more deontological question of appropriate limits on government power and discretion.

    Perhaps the essays by Justice Stevens and Professor McConnell, mentioned in the blog, will help you as well.

  7. Brian says:

    Thanks for the reply. I actually can’t think of any examples of Canada or Germany “misusing their hate speech statutes to prosecute dissenting opinions,” unless by dissentin opinions you mean hate speech, but of course that is to be expected, just as dissenting libel and dissenting fighting words is regulated here. Claims that “rebuttals to hate speech can be quite productive” and the suggest that hate speech statutes damage “a robust speech culture where people feel free to be controversial/offensive” are also empirical claims, for which there is precious little support I am aware of. McConnell’s review was pretty thin, though he at least broached the pertinent question about why harm to the dignitary order of society is the harm the law should addess. Stevens’ essay struck me as just the usual trite bromides that are the staple of these discussions.

    In any event, thanks for your replies.

  8. Erica Goldberg says:

    Canada’s Human Rights Commission has been accused of applying its hate speech laws selectively to suppress only certain viewpoints, or to target speakers based on identity. I highly recommend Rauch’s “Kindly Inquisitors” if you’re looking for examples of abuse of these types of regulations.

  9. Brian says:

    Thanks, I looked at the entry, and while I saw various hypothetical cases which were alleged to run afoul of Canadian hate speech laws, the only actual cases involved actual hate speech, suggesting the law works, at least so far, as intended. Maybe I am misinterpreting one of these examples. I do not know the Rauch book but will acquire it, thanks.