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December 1, 2012

The Harm in Hate Speech Laws

Jacob Mchangama on The Harm in Hate Speech by Jeremy Waldron

Jeremy Waldron. The Harm in Hate Speech. Harvard University Press. 304 Pages. $26.95.

In the harm in Hate Speech, New York University Professor Jeremy Waldron sets out to defend hate speech laws (or “group defamation laws,” as he prefers to label them) against critiques based on “knee-jerk” American First Amendment exceptionalism. Yet Waldron’s defense of hate speech laws is based on a purely abstract and ultimately flawed harm principle that is at odds with modern realities. The harm principle proposed by Waldron thus leads to a utilitarian calculus which reduces the freedoms of conscience and expression to dubious empirical disputations based on evidence that is vast and contradictory. Waldron’s abstract thesis leads him to dismiss some very weighty arguments against hate speech laws without investigating real examples of how they impact individuals and political debates and lead to arbitrary outcomes difficult to reconcile with the rule of law.

The book’s central premise is that hate speech undermines the equal dignity of individual members of vulnerable minorities. For Waldron, “The ultimate concern is what happens to individuals when defamatory imputations are associated with shared characteristics such as race, ethnicity, religion, gender, sexuality and national origin.” As examples, Waldron invokes the history of systematic racism and segregation in the U.S. and the lethal legacy of Nazism in Europe. Manifestations of hate speech “intimate a return to the all-too-familiar circumstances of murderous injustice that people or their parents or grandparents experienced,” which a “well ordered society” should not tolerate. Accordingly, hate speech can be restricted as a means of “assurance” to the targeted groups. Waldron explicitly rejects the idea that hate speech should constitute a “clear and present danger” before being prohibited by comparing hate speech with environmental harms such as automobile exhaust. Since we know that exhaust can result in lead poisoning, it is justified to require each automobile owner to fit an emission control on the exhaust pipe, even if we cannot show a direct link between the individual car owner and those afflicted by pollution. To Waldron the harm in hate speech outweighs the many objections to hate speech laws, such as the restrictions on autonomy and freedom of conscience, the interference with the political decision-making process, the often vague and imprecise language of hate speech codes, and the risk of political abuse.

There is arguably no better way to gauge an ethnically diverse society’s level of tolerance and commitment to equality than to look at interracial marriages — illegal in 16 states until the Supreme Court struck down Virginia’s law on miscegenation in 1967.

The objective of seeking to reassure all members of society that they will not suffer persecution based on their race, religion, ethnicity, etc. is one on which virtually all can agree. No one can deny the very real and horrific consequences of Jim Crow and lynchings in America, or of Kristallnacht and the Holocaust in Europe. Even the most principled defender of the First Amendment would surely allow for further restrictions on free speech if indeed it could be shown that hate speech creates a significant risk of a return to violent racial persecution. But nothing suggests that America’s increasingly isolated position on the protection of free speech has led to increasing racial tensions. While there is likely no scientific method of accurately gauging the relationship between free speech and extremism, numerous surveys on race relations suggest that the putative dangers of tolerating extreme speech have little factual basis.

There is arguably no better way to gauge an ethnically diverse society’s level of tolerance and commitment to equality than to look at interracial marriages — prohibited in sixteen states until the Supreme Court struck down Virginia’s miscegenation law in 1967. The statistics on American attitudes toward interracial marriages reveal a startling development. According to a 2011 Gallup survey, only four percent of Americans approved of interracial marriages in 1958. But in 2011 86 percent of Americans had no problem with such marriages. Among Americans aged 18 to 29, a full 97 percent approve of interracial marriages, suggesting that race relations will only continue to improve. Not only are Americans more approving of interracial marriages, they also tie the knot across racial lines. According to a 2012 Pew survey, about fifteen percent of all new marriages in the United States in 2010 were between persons of different races, more than double the share in 1980 of 6.7 percent.

A couple of examples vividly demonstrate the development in race relations. When I visited Little Rock Central High in 2010 I was met by black and white teenagers mingling in the hallways and classrooms. A far cry from 1957 when “The Little Rock Nine” were met by hateful white protestors and had to be escorted to school by armed troops. In 1967, Virginia’s miscegenation law was declared unconstitutional. In 2008 a majority of Virginians voted for a mixed-race presidential candidate.

What about actual hate crimes where the offender is motivated by the victim’s race, religion, sexual orientation, ethnicity/national origin, or disability? According to fbi statistics, The total number of U.S. hate crime incidents decreased from 8,759 in 1996 to 6,628 in 2010. In per capita terms hate crime incidents declined from 3.25 incidents per 100,000 people in 1996 to 2.15 in 2010. Supporters of hate speech laws may argue that these developments have occurred despite the First Amendment’s protection of hate speech. But there is little evidence that Europe, with its hate speech laws, is doing better. For instance, the Anti-Defamation League’s surveys of anti-Semitism suggest significantly higher levels of anti-Semitism in all surveyed European countries than in the United States. Whereas hate crimes in the U.S. have decreased, a report from the eu Fundamental Rights Agency shows that hate crimes have increased between 2000 and 2009 in eleven out of fourteen surveyed eu countries. While differences in methodology preclude direct comparisons between each of the relevant eu countries as well as between these and the U.S., this trend does not suggest that hate speech laws are an effective tool against racism and intolerance in Europe.

It is also in Europe, not the U.S., where extremist parties with openly racist or bigoted views are resurgent and have gained seats in parliaments and local councils. Whereas racial and religious minorities in the U.S. have held positions including president, secretary of state, and national security advisor, minorities in the highest level of offices are rare in most European countries. Waldron demands that defenders of current First Amendment protections answer the question of whether the targets of abuse “can [lead their lives], can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by [hate speech]?” The answer seems to be an emphatic “yes.”

These facts demonstrate the fundamental flaw in Waldron’s analogy with environmental harm. While we know for certain that the cumulative effect of automobile exhaust causes harmful pollution that can be averted with emission controls, we cannot with any degree of certainty know that the cumulative effect of hate speech results in “environmental” harm avoidable by restricting free speech. And whereas emission control devices do not impact the ability to drive, hate speech laws by definition limit the individual autonomy of those convicted as well as the public debate.

The fact that Waldron includes a brief discussion of First Amendment history should have made him more suspicious of relying on such an abstract harm principle for restricting free speech. Waldron himself mentions that in the 19th and 20th centuries several highly questionable state and federal laws were enacted targeting sedition, abolitionists, civil rights advocates, atheists, communists and war opponents, several of which were upheld by state and federal courts. It was only in 1969 that the Supreme Court decided in Brandenburg v. Ohio that what we call hate speech may generally only be prohibited when it is “directed at inciting or producing imminent lawless action” and it is “likely to incite or produce such action.”

If one delves further into the history of free speech, the dangers of accepting abstract and theoretical harm principles as justifications for suppressing this right becomes vividly clear. In 1676, blasphemy became an essentially secular crime thought to undermine the social cohesion of English society. This happened when Lord Chief Justice Hale declared blasphemy part of the English Common Law in his condemnation of the notorious blasphemer Richard Taylor:

such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government, and therefore punishable in this court. For, to say religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law.

This line of reasoning would survive into the 20th century albeit with important liberal modifications. Thus early-19th-century England saw a number of trials against deists, atheists, and freethinkers, the most prominent of whom was Richard Carlile, who sold copies of Tom Paine’s Age of Reason and Rights of Man. The prosecution’s argument against Carlile was astonishing: Prosecutions for blasphemy were necessary for the “public good,” not for the sake of religion. The purpose was

protecting the lower and illiterate classes from having their faith sapped and their minds divested from those principles of morality, which are so powerfully inculcated by the Christian religion . . . When such terrible productions are put into the hands of those who unlike the rich, the informed, and the powerful, are unable to draw distinctions between ingenious though mischievous arguments, and divine truth — the consequences are too frightful to be contemplated.

In other words, prosecuting blasphemy was a way to maintain the social equilibrium in a hierarchical English society.

In hindsight it seems clear that however important the role of faith, allowing satire and rejection or criticism of Christianity did not in fact corrode the fabric of English society. Nor did the activities of civil rights advocates or the propaganda of “seditionists,” atheists, Marxists, and anti-draft advocates entail any real or immediate danger for 19th- or 20th-century America. No advocate of hate speech laws would defend the rationale for restricting free speech in these cases.

These historical examples of restrictions of free speech differ from contemporary hate speech laws in important ways. But they also share a key trait, namely that they were adopted based on a highly abstract and theoretical harm principle, which a political majority thought sufficient to justify restrictions on an unpopular minority’s free speech, without demonstrating the reality of the supposed danger. One may counter that contrary to the provisions mentioned above, hate speech laws aim to protect minorities against majorities. But even assuming that hate speech laws pursue legitimate aims, flaws in their application may well outweigh such legitimate aims, particularity when seen in the light of unproven harm caused by hate speech. Since we cannot know for sure which forms of speech are beneficial for humankind and which are not, it is suspect to restrict speech on the basis of such purely speculative assessments.

The shortcomings of Waldron’s theoretical harm principle are compounded by his superficial treatment of how hate speech laws have originated and operate in practice. Waldron finds it significant that hate speech laws have a basis in international human rights conventions such as the International Covenant on Civil and Political Rights (iccpr). However, Waldron does not mention that most Western states, led by such champions of international human rights as Eleanor Roosevelt, were opposed to the inclusion of a prohibition against hate speech in the iccpr. Nor does he mention that these provisions were advocated by the Soviet Union and its allies during the Cold War. We can safely assume that the Soviet bloc did not champion hate speech provisions out of regard for the “deeper values of dignity, respect, equality, democracy and social peace” Waldron emphasizes.

Waldron insists that all “advanced democracies” have adopted hate speech laws “and by and large this legislation is administered responsibly,” and he specifically rejects the charge that these laws exclude people from the political process. That is an especially bold conclusion given that Waldron, with the superficial exception of Canada, neglects to expend any ink on discussing case law from the very countries whose hate speech laws he praises. Numerous cases from European democracies show that the concerns about the arbitrariness of hate speech laws and their impact on political debate cannot simply be dismissed as hysteria. Take the United Kingdom with its 1986 Public Order Act, which in practice has come to function as a hate speech law. It has been used to convict both a religious campaigner holding up a sign condemning homosexuality as a sin and an atheist campaigner who left “offensive” caricatures in an airport prayer room. Earlier this year a university student was sentenced to 56 days imprisonment for drunken racist Tweets.

In Germany the prohibition against Holocaust denial has led to three months imprisonment of a person who in a private letter denied Hitler’s involvement in the Holocaust (but not the Holocaust itself). In France a journalist was fined for stating that the majority of criminals are blacks and Arabs. A French cartoonist was also fined for publishing a cartoon praising the attack on 9/11 and a mayor fined for advocating a boycott of Israel. In the Netherlands a politician was convicted for stating that “we will abolish the multicultural society.” In neighboring Belgium a politician was convicted for hate speech against immigrants and banned from political office for a period of ten years. However loathsome or controversial the views of these persons may be, their convictions surely make highly questionable Waldron’s insistence that hate speech laws are administered responsibly and do not exclude people from the political process. Thus, while Waldron’s own harm principle rests on flimsy grounds, the harm involved in restricting free speech is very real, while the putative benefits are very uncertain.

Several of these European cases have been tried by the European Court of Human Rights (echr), which not only has accepted hate speech laws as a permissible restriction on freedom of expression, but has exempted hate speech from the protection of freedom of expression altogether as an “abuse” of rights. In 2012, the echr went so far as to identify a wholly new human right not to be subjected to “negative stereotypes” under the right to privacy.

Not only do hate speech laws have serious consequences for public debate on important issues, the inherent vagueness of these laws frequently leads to seemingly arbitrary results that turn on legal niceties, which might not be appreciated by those minorities whom Waldron wants to protect. For instance, Dutch politician Geert Wilders was acquitted on hate speech charges after comparing Islam with terrorism and railing against Muslim immigration. Yet a Dutch Muslim association was convicted for publishing a cartoon questioning the Holocaust. In Denmark members of a political youth party were convicted for publishing a poster with a picture of blonde Danish girls and three foreigners holding a blood soaked Koran claiming that “mass rape, violence, insecurity, forced marriages, oppression of women and gang crime” would be the result of a multiethnic society. However, members of another political party were acquitted for pamphlets asking Danes whether they too “were afraid of the future with all the crime and rapes, which foreigners, not least Muslims have caused.” If we accept Waldron’s premise that hate speech is harmful, then these examples suggest that an efficient response to hate speech would require even more draconian laws and enforcement thereof. As for Denmark, this would be in line with recommendations by human rights bodies at both the Council of Europe and the un, which have criticized Denmark for its supposedly lax enforcement of its hate speech provision.

To be fair, Waldron distinguishes between dignity (a group member’s standing in society) and offense (subjective feelings, including shock, hurt, and anger). Only the former is to be protected since “it is not the function of hate speech laws to protect against hurt feelings.” Waldron grudgingly concedes that the Danish director of prosecution “was probably right” for deciding not to charge the editors of Danish newspaper Jyllands-Posten for having published cartoons of the Prophet Muhammad. But it is often very difficult to distinguish between offense and hate speech in the form of group defamation. And Waldron himself blurs the lines by repeatedly referring to the nebulous concept of “Islamophobia,” which is frequently used to describe those who are very critical of Islam but not (necessarily) bigoted against Muslims.

A good example of how one man’s offense is another’s hate speech is an initial statement issued by the U.S. State Department on the Mohammed Cartoons: “We all fully recognize and respect freedom of the press and expression, but it must be coupled with press responsibility. Inciting religious or ethnic hatreds in this manner is not acceptable.” Courts also have problems distinguishing. In Denmark a person was convicted for stating that “Islam is not a religion but a terrorist organization intent on world domination.” That is certainly a harsh critique of Islam, but it is not clear that it is targeting all Muslims. If so then presumably someone quoting Nietzsche’s The Antichrist would also be engaging in hate speech since it includes the following attack on Christianity: “I call Christianity the one great curse, the one great innermost corruption, the one great instinct of revenge, for which no means is poisonous, stealthy, subterranean, small enough — I call it the one immortal blemish of mankind.” Martin Luther’s vicious diatribe against Jews and Judaism in “The Jews and Their Lies” could also be labeled as hate speech, and one could mention several Koranic verses that seemingly incite hatred against non-Muslims.

As we have seen, during the days of slavery and later segregation, laws suppressing free speech were often aimed at abolitionists and civil rights advocates, not at slave owners or Jim Crow advocates. This reflected social and political power in local states and communities where attitudes towards race were very different than today. Accordingly, when minority groups are weak, despised, or feared by the majority, they are unlikely to obtain protection through hate speech laws. Such protection will only become a realistic prospect when the relevant minority group is sufficiently accepted by mainstream society. Protected status therefore will often depend on prior social change in attitudes, and at the point in time when a particular group is sufficiently uncontroversial or accepted, it arguably no longer needs such protection.

It is often very difficult to distinguish between offense and hate speech in the form of group defamation. Waldron himself blurs the lines by repeatedly referring to the nebulous concept of “Islamophobia.”

One of the latest groups afforded protection in a number of European countries is homosexuals. Well into the 20th century homosexual practices were criminalized in numerous Western countries and homosexuals were stigmatized. However, much of the stigma attached to homosexuality, both legal and social, has disappeared and, particularly in Europe, openly gay politicians can serve in government with no controversy. Homosexuals can live in the open and in some places even marry. Yet even as society became much more tolerant of homosexuality, countries like Denmark, Sweden, and the Netherlands added sexual orientation to their hate speech laws. Whereas in 1979 a Christian woman in Britain succeeded in having a homosexual magazine fined for blasphemy, today British homosexuals have successfully brought complaints against Christians and Muslims for offensive anti-homosexual expressions. It is precisely because homosexuality has become accepted and homophobia a social faux pas in many places in the West that homosexuals have been able to persuade political elites that they deserve specific legal protection.

On the other hand, numerous Eastern European states including Russia and Lithuania have yet to undergo the same changes in attitudes towards homosexuality. Rather than adopt laws protecting homosexuals from hate speech they have enacted laws prohibiting, for instance, “the promotion of homosexuality” or gay parades. If Danish and Dutch homosexuals were still a vulnerable and marginalized minority persecuted by the state and other citizens, they would be very unlikely to obtain special recognition. Without a principled defense of freedom of expression no group is more than a political majority away from being the target rather than the beneficiary of hate speech laws.

There is also something deeply disturbing about a society where the ultimate recognition for previously persecuted groups is the ability to silence those opponents whose views have already become marginalized through social change. No minority group whose members know the pain and humiliation of intolerance should wish to be afforded respect and recognition through limiting the freedom of expression of others. Surely it would have tainted the accomplishment of the U.S. Civil Rights movement if in its hour of triumph it had convinced Congress and the Supreme Court that the bigots defeated through the appeal to freedom and equality should also be sanctioned through legal means.

The Harm in Hate Speech has been hailed by both proponents and opponents of hate speech laws as offering a “deeply challenging argument” and as “certain to give even free speech absolutists pause.” In his book Waldron insists that “where there are fine lines to be drawn the law should generally stay on the liberal side of them.” If Waldron was serious about erring on the side of liberty, he would have written a very different book.


Jacob Mchangama is director of legal affairs at Danish think tank CEPOS , managing director of the Freedom Rights Project, and external lecturer of international human rights law at the University of Copenhagen.