Diversity and Speech Part 18: Hate Speech – by Carlos E. Cortés

Hate speech may be the thorniest point of contention between diversity advocates and free speech absolutists.  Of course most people oppose hate and detest hate speech.  But what should we do about it?  That’s where disagreements begin.

Let’s look at hate speech from four perspectives.  Legal: what does the U.S. Constitution say about hate speech?  Behavioral: is hate speech merely speech?  Aspirational: ideally, what would we want when it comes to hate speech?  Operational: how might government hate speech restraints work in practice?

First, legal.  At this moment, hate speech is constitutionally protected from government interference.  Not explicitly.  Just generically by the First Amendment, which states, “Congress shall make no law . . . abridging the freedom of speech.”

There have been government attempts to ban hate speech.  For example, some communities have enacted hate speech laws and codes.  However, courts have regularly overturned them.   Yet private entities can ban hate speech.  Internet companies like Facebook and Twitter have done just that, although critics question the effectiveness of such bans.  Moreover, some institutions have taken action against hate speech that they consider to be harassing or contributing to a hostile workplace or educational environment.

Yet free speech advocates argue that hate speech is an evil we have to accept as constitutionally protected — the unfortunate but inevitable by-product of what they see as the greater good, government support of the principle of free speech.  Many diversity advocates respond that hate speech is so harmful that it should be legally curtailed.  Since there is already a list of government-prohibited speech acts — for example, libel, slander, defamation, and the invasion of privacy – why not add hate speech?

First amendment scholars disagree on the issue.  In her book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship, Nadine Strossen, former president of the American Civil Liberties Union, argues that it would be difficult to precisely frame and judiciously apply hate speech statutes.  Moreover, it would be dangerous to expand government’s power to regulate speech.  In contrast, in their book, Must We Defend Nazis?  Hate Speech, Pornography, and the New First Amendment, critical legal theorists Richard Delgado and Jean Stefancic argue that we ought to give legal remedies a try.  While admitting that the current constitutional environment precludes the type of legal strategies they recommend, they foresee a future more supportive of their proposals.

This brings us to the second perspective, behavior.  The hate speech conversation is changing rapidly in the Delgado-Stefancic direction, driven by two factors.  First, there has been an alarming rise of hate speech on the internet, where lightning-like distribution and easy access have raised the stakes for the public good.  Add to this the growing recognition that hate speech creates tangible harm by provoking people into action.  In other words, hate speech is not just speech.  The Cato Institute’s 2017 Free Speech and Tolerance survey reported that more than half of all college students believe that hate speech is, in fact, an act of violence.

Now consider the aspirational perspective.  Aspirationally, why should there be legal restraints on some forms of speech, such as libel, slander, defamation, and the invasion of privacy, but not on hate speech?  Isn’t the latter even more noxious and harmful?  I have posed that aspirational dilemma to many First Amendment scholars and have yet to receive a compelling answer.  They usually respond by citing the Constitution and case law, in the process avoiding an aspirational judgment.  Or if they admit that hate speech is as noxious and harmful as slander, therefore aspirationally deserving of restraint, they point to the practical difficulties of applying hate speech laws and codes.

This brings us to the operational dilemma, which I, too, recognize.  It would be challenging to develop a system that prohibits and punishes hate speech while also avoiding the undermining of robust speech, particularly since hate speech laws could well lead to government over-reach.  Such laws could even be used to mute criticisms by diversity advocates.  In other words, while I aspirationally support the idea of legal restrictions on hate speech, I remain wary of how this would play out operationally.   

We have evidence about how hate speech laws might work, because such laws do exist in other nations, such as in Europe.  Scholars disagree on their efficacy.  In his book The Harm in Hate Speech, philosopher Jeremy Waldron argues that these laws do work Europe.   But others point to the fact that authoritarian governments often employ hate speech laws to squelch criticism of their regimes.

So what should we do?  What would you like to see happen?  Given the fact that no single approach appears capable of “solving” the challenge of hate and hate speech, I support a multi-strategy experiment.  The expansion of anti-hate counter-speech.   A reconceptualization of civics education to emphasize democratic inclusivity.  And, somewhat reluctantly, a narrowly-targeted (not broadly-framed), restrictively-applied hate speech code.

This legal process will be contentious.  Free speech absolutists will do battle with diversity advocates.  Crafting such narrowly targeted hate speech laws will be difficult and require restraint.  Applying such laws will be messy, with inevitable unintended collateral consequences.  Yet the rise of internet hate speech-inspired violence, particularly against marginalized people, is propelling us toward this perilous but maybe necessary experiment. 

CLICK to see related article: DIVERSITY AND SPEECH PART 9: HATE SPEECH 2070 

Photo by Andre Hunter on Unsplash

Dr. Carlos E. Cortés

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