Down With ‘Hate-Speech’ Laws

David Gordon

by David Gordon: Ralph
Raico on Authentic Liberalism

Harm in Hate Speech
By Jeremy Waldron • Harvard University Press, 2012 • vi
+ 292 pages

In many
countries, though not in the United States, laws prohibit “hate
speech.” Those who, in Jeremy Waldron’s opinion, uncritically
elevate the benefits of free speech over competing values oppose
hate-speech laws; but Waldron thinks that a strong case can
be made in their favor. (Waldron thinks that there are “very
few First Amendment Absolutists” [p. 144] who oppose all
regulation of speech; but he thinks that many other First Amendment
scholars are unduly critical of hate speech regulations.) Waldron
is a distinguished legal and political philosopher, but the
arguments that he advances in defense of hate-speech laws, taken
on their own terms, do not seem to me very substantial.[1]

Hate speech,
Waldron tells, us, consists of “publications which express
profound disrespect, hatred, and vilification for the members
of minority groups” (p. 27). “Speech,” it should
be noted, is used here in an extended sense; and it is the more
lasting written material, movies, posters, etc, that principally
concern Waldron rather than speeches, verbal threats, or imprecations,
though the latter are not excluded. Many countries ban such

The United
Kingdom has long outlawed the publication of material calculated
to stir up racial hatred. In Germany it is a serious crime
to display the swastika or other Nazi symbols. Holocaust denial
is punished in many countries. The British author David Irving
Â… was imprisoned until recently in Austria for this offense.
(p. 29)

One way to
respond to this would be to assess hate-speech laws from the Rothbardian
position that I deem to be correct. This would make for a very short
review. For Rothbard, free-speech questions reduce to issues of
property rights. If, for example, someone writes “Muslims get
out!” on a wall, a Rothbardian would ask, “Whose wall
is it?” If the author of the message wrote on his own wall,
he acted within his rights; if, lacking permission, he wrote on
someone else’s wall, he violated the owner’s property rights. People
have no general right of restraint against insult. Furthermore,
you do not own your reputation, since this consists of the ideas
other people have of you, and you cannot own other people’s thoughts.
For that reason, laws against libel and slander are for the Rothbardian
ruled out. Waldron asks, If laws forbid libel of a person, why not
laws against group libel as well? A more un-Rothbardian argument
could hardly be imagined.

I think it
would be a mistake to leave matters there. Waldron – and those
like him who reject libertarianism – would be unlikely to take
notice of the foregoing criticism.[2]
But another line of inquiry might be of more interest to them. We
can also ask how good Waldron’s arguments are if judged on their
own merits rather than evaluated from an external perspective.

If we ask
this question, we must first deal with a difficulty. Waldron’s
exact position is rather elusive. For one thing, it is not altogether
accurate to say that he defends hate-speech laws, though this
is certainly the general tenor of his book. He sometimes confines
himself to saying that there are considerations in favor of
these laws: these would need to be weighed against reasons for
not restricting speech.

My purpose
in putting all this in front of you is not to persuade you
of the wisdom and legitimacy of hate-speech laws.Â… The
point is Â… to consider whether American free-speech jurisprudence
has really come to terms with the best that has been said
for hate speech regulations. (p. 11)

But I do not
think it admits of much doubt that for Waldron the arguments in
favor of these laws are decisive.

Why, then,
should we restrict hate speech? The primary consideration is
that it assaults human dignity. In what Waldron, following John
Rawls, calls a “well-ordered society,” there is “an
assurance to all the citizens that they can count on being treated
justly” (p. 85). But hate speech disrupts this assurance.

when a society is defaced with anti-Semitic signage, burning
crosses, and defamatory racial leaflets, that sort of assurance
evaporates. A vigilant police force and a Justice Department
may still keep people from being attacked or excluded, but
they no longer have the benefit of a general and diffuse assurance
to this effect [of being treated justly], provided and enjoyed
as a public good, furnished to all by each. (p. 85)

This goes altogether
too fast. If you encounter a pamphlet or sign hostile to your minority
group, why would you conclude anything more than that someone wishes
you and those like you ill? Would not the hostile view be merely
one opinion among large numbers of others? Why would it suffice
to weaken your sense of assurance that you were an equal member
of society?

fully aware of this objection, responds that it neglects the
effects of contagion. Even though the effect of an individual
hate message may be small, the message signals to other haters
that they do not hate alone. The accumulation of many such messages
may indeed serve to undermine the assurance of the harassed

In a
way, we are talking about an environmental good –
the atmosphere of a well-ordered society – as
well as the ways in which a certain ecology of respect, dignity,
and assurance is maintained, and the ways in which it can
be polluted and (to vary the metaphor) undermined. (p. 96)

Waldron elucidates
the parallel that he draws between hate messages and environmental
pollution in this way: We see that the

impacts of millions of actions – each apparently inconsiderable
in itself – can produce a large-scale toxic effect that,
even at the mass level, operates insidiously as a sort of
slow-acting poison, and that regulations have to be aimed
at individual actions with that scale and that pace of causation
in mind. An immense amount of progress has been made in consequentialist
moral philosophy by taking causation of this kind, on this
scale and at this pace, properly into account. (p. 97)

(Waldron refers
here to the well-known treatment of “moral mathematics”
in Derek Parfit’s Reasons
and Persons

But why
does contagion operate only with bad effects? Will not the cumulative
effects of a series of individual encounters in which members
of minority groups are treated with equal respect generate a
positive atmosphere of assurance, in precisely the same way
that Waldron postulates for the amassing of hate messages? Waldron
assumes without argument a quasi–Gresham’s law of public
opinion, in which bad opinion drives out good.

But which process,
the one that produces a positive atmosphere of assurance or the
one that arouses Waldron to concern, will in fact prove the stronger?
One reason to think that it is the good one is this. Waldron, in
response to the charge that hate-speech laws suppress legitimate
issues of controversy, notes that some matters are beyond dispute;
an established consensus supports them:

someone puts up posters conveying the opinion that people
from Africa are nonhuman primates.Â… Maybe there was a
time when social policy generally Â… could not adequately
be debated without raising the whole issue of race in this
sense. But that is not our situation today.Â… In fact,
the fundamental debate about race is over – won, finished.
There are outlying dissenters, a few crazies who say they
believe that people of African descent are an inferior form
of animal; but for half a century or more, we have moved forward
as a society on the premise that this is no longer a matter
of serious contestation. (p. 195)

If Waldron
is right, and only a “few crazies” believe the hateful
doctrine, why is he so much in fear of the malign effects of allowing
these people to publish their views unmolested by the state?

To be frank,
I think that Waldron at times proceeds in a very unfair way.
He says, in effect, to the opponents of hate-speech laws, “You
say that you are willing to put up with the evils of hate speech
in order to preserve the good of unhindered free speech. But
you are not, in most cases, the ones who will suffer from hate
speech. Why are you entitled, without evidence, to brush aside
the suffering of those whom hate speech targets?”

That is
not in itself an unreasonable question, but Waldron ignores
one vital issue. He is endeavoring to make a case for the regulation
of hate speech. He cannot then fairly shift the onus
entirely to the side of his opponents, saying
to them, “prove that hate speech does not much affect its
victims.” It is for him to show that hate speech in fact
has the dire effects he attributes to it. It is not out of the
question that such speech sometimes does have bad effects, but
it would seem obvious that we have here an empirical issue,
one that requires the citation of evidence. Waldron so far as
I can see fails to offer any, preferring instead to conjure
up pictures of people who, seeing or hearing examples of hate
speech, recall horrid scenes of past persecution. To what extent
do people actually suffer from hate speech? Waldron evinces
little interest in finding out.

If Waldron
has not succeeded in making a case for hate-speech regulation, is
there anything to be said against such laws – aside, of course,
from the libertarian considerations that we have for this review
put aside? One point seems to me of fundamental importance. Waldron
presents these laws as if they limited only extreme expression of
hate, e.g., suggestions that people in certain groups are subhuman
or need to be forcibly expelled from society, if not done away with
altogether. He rightly notes that we are not obliged to like everyone
or to deem everyone equally morally worthy:

this [the requirement that we treat everyone with dignity]
mean that individuals are required to accord equal respect
to all their fellow citizens? Does it mean they are not permitted
to esteem some and despise others? That proposition seems
counterintuitive. Much of our moral and political life involves
differentiation of respect. (p. 86)

laws, Waldron says, do not ignore our rights to prefer some
people to others. We further remain free to criticize minority
groups, so long as we do not stray into the forbidden territory
of outright hatred and denigration. Waldron claims that

such [hate speech] laws bend over backwards to ensure that
there is a lawful way of expressing something like the propositional
content of views that become objectionable when expressed
as vituperation. They try to define a legitimate mode of roughly
equivalent expression.Â… Some laws of this type also try
affirmatively to define a sort of “safe haven” for
the moderate expression of the view whose hateful or hate-inciting
expression is prohibited. (p. 190)

I do not doubt
that Waldron has accurately quoted from the laws he mentions, but
he unaccountably fails to comment on a quite well-known phenomenon.
Laws of the type Waldron champions have often been used to suppress
not just vituperation but all sorts of “politically incorrect”
opinions. For example, as James Kalb notes in his outstanding The
Tyranny of Liberalism
, “the High Court in Britain [in
2004] upheld the conviction and firing of an elderly preacher who
held up a sign in a town square calling for an end to homosexuality,
lesbianism, and immorality and was thrown to the ground and pelted
with dirt and water by an angry crowd.”[3]

Those wishing
further examples of how these laws work in practice may with profit
consult the penetrating studies of Paul Gottfried, e.g., After
Liberalism: Mass Democracy in the Managerial State
and Multiculturalism
and the Politics of Guilt
Here we are dealing not with a matter of speculative psychology
but of incontrovertible fact.

For Waldron,
the state ought to watch vigilantly over us, ever alert that
some miscreant may cross the boundaries (set of course by the
state itself) of acceptable dissent from the regnant orthodoxy
of multicultural society. I cannot think that such a tutelary
power has a place in a free society.

by David Gordon

May 31,

© 2012 by the Ludwig von Mises Institute.
Permission to reprint in whole or in part is hereby granted, provided
full credit is given.

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