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The Harm In Hate Speech

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What’s The Harm In Hate Speech

Social Media and Hate Speech: Who Gets to Decide?

BROOKE GLADSTONE: Main Kampf, the cornerstone argument for the Third Reich, is a cut and dried example of hate speech, but no matter how vile, how irredeemable, it is published here in the United States. Jeremy Waldron, author of The Harm in Hate Speech, might ask why. And you might answer, Because of the 1st Amendment of the Constitution.

But Waldron believes that the 1st Amendment doesnt, and shouldnt, protect the most extreme forms of hate speech, and he asks you to consider an anecdote. A father and his two children are walking in their American town shortly after September 11th. The family is Muslim, and they encounter some particularly virulent and public invective aimed directly at them.

JEREMY WALDRON: And he looks at them and he tries to shield them from it. He knows what it means. It means that theyre not going to be welcome or that somebody is trying to persuade others to not make them welcome. We have to understand this matter intelligently, and that does mean looking at it just not through my eyes as a white liberal, who say, well, I can take this, I can handle this, but through the eyes of people who have to live their lives, do their business, raise their children in an atmosphere that is poisoned by this sort of abuse.

BROOKE GLADSTONE: Are you pitting one of Americas founding principles against the admittedly horrible predicament this father finds himself in?



A Hate Speech And The Deliberative Interest

Proponents of the CLS approach contend that hate speech does not promote what Joshua Cohen calls the deliberative interest: the interest people have in accessing valuable information that can help them lead better lives and help others do the same. Lawrence argues, The racial invective is experienced as a blow, not a proffered idea and concludes that hate speech ought to be considered the functional equivalent of fighting words.Footnote 46 Delgado echoes this sentiment when he says that racial insults are not intended to inform or convince the listener.Footnote 47 The idea is that racist hate speech has the intent and impact of injuring its victims and promoting fear, intolerance, and violence, rather than sharing an idea or motivating useful discourse. In its strong form, this argument insists that hate speech lacks what Ill call intellectual content, i.e. an articulated idea or argument, but is rather akin to a blow, as Lawrence describes it. Yelling a racial slur at someone does not express an idea and is unlikely to spark a conversation, let alone a thoughtful and productive one. On the contrary, such speech is more likely to silence and drive away its targets.

The Harm In Hate Speech

Jeremy Waldron, The Harm in Hate Speech, Harvard University Press, 2012, 304pp., $26.95 , ISBN 9780674065895.

Reviewed by Brian Leiter, University of Chicago


Jeremy Waldron makes a spirited, if somewhat meandering, case for the legal regulation of “hate speech,” one that American scholars in particular would do well to consider. Such regulation is unconstitutional content-based regulation of speech in the U.S., but is common in most other Western democracies. Is there a good reason for the U.S. to be the outlier here? As Waldron notes in passing, in the U.S. “the philosophical arguments about hate speech are knee-jerk, impulsive, and thoughtless” , which is at least partly due to confusion about what is at stake. Waldron observes that “hatred is relevant not as the motivation of certain actions, but as a possible effect of certain forms of speech” , and thus the real issue is “the predicament of vulnerable people who are subject to hatred directed at their race, ethnicity, or religion” .

The harm to “dignity” is more aptly conceptualized, Waldron argues, on the model of “group libel,” that is, written defamation that,

He cites no evidence that it makes “a massive difference,” but perhaps it does. Waldron, in any case, thinks something similar is true of the effect of the “hate speech” with which he is concerned.

Almost a half-century ago, the Marxist philosopher Herbert Marcuse expressed the view in his famous essay on “Repressive Tolerance” that

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The Nature Of Harm In Waldrons Argument

It is not entirely clear whether Waldron believes that hate speech causes harm sufficiently damaging for the law to step in, or whether it is inherently harmful, so that it constitutes harm and there is no need to examine its causal impact. Much of his argument suggests he is concerned with the consequences of hate speech, and that it is how it has been interpreted by some critics , 76972). Waldron argues that hate speech undermines the public good of the assurance of security by intimating discrimination and violence and by reawakening living nightmares of what previous societies have been like. It poses an environmental threat to social peace, a sort of slow-acting poison, producing its effects over years . From the perspective of members of the targeted groups, hate speech sets out to make the establishment and upholding of their dignity much harder . The proscription of hate speech also ensures the maintenance of social peace and civic order . These arguments suggest that Waldron is concerned with the harmful consequences of extreme racist and other varieties of hate speech.

A Racist Hate Speech As Constituting Harm

Oliver Wendell Holmes Lectures: The Harm in Hate Speech (Paperback ...

Throughout the hate speech literature, proponents of hate speech regulation frequently emphasize that hate speech constitutes rather than merely causes harm. What they mean by this is that it is not merely how others react to hate speech that does harm, but that hate speech by its very utterance does harm. To use a term from philosophy of language, harm is part of the illocutionary force of hate speech, not merely a perlocutionary effect. One of the more persuasive versions of this argument comes from Charles Lawrence, who argues that hate speech is an act of discrimination that excludes members of targeted groups by its very utterance.Footnote 23

Racist hate speech therefore creates a kind of hole in the fabric of equal dignity ostensibly ensured by liberal societies. When someone utters hate speech, they make it the case that their target is denied equal status and recognition respect. Intrinsic to the speech act is treatment of its target as an inferior, unworthy of same the status as other members of society. In this way, each utterance of hate speech chips away at the dignity of members of targeted groups.

Finally, as Ill detail in the next section, individual utterances of hate speech can spur the expression of additional derogatory utterances, compounding illocutionary harms with damaging perlocutionary effects.

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More Than Hurt Feelings: The Real Danger Of Hate Speech

EDITORS NOTES: THIS PIECE IS AUTHORED BY Naomi Elster. Naomi has a PhD in Breast Cancer, and is an author of fiction, non-fiction and scripts. Her work has been widely published, including The Establishment, The Guardian and Crannog Magazine.

Now that Trump is president, Im going to shoot you and all the blacks that I can find.

These words were spoken to a twelve-year-old girl.

In the first week following the election of a candidate endorsed by the Ku Klux Klan, 437 racist, sexist or xenophobic incidents took place, most of them against groups Trump had viciously denigrated during his campaign people of color, women, LGBTQ people and immigrants. Its not unreasonable to suppose that the extreme rhetoric used in Trumps campaign may have incited at least some of those incidents. The night after the result was announced, I sat in a bar in Europe with an American friend who wondered aloud about going home for Christmas. Is this result going to make all those extreme racists whove felt they had to be silent for years feel validated? she asked. To the point, they feel comfortable putting their hoods back on?

It can be far too easy for people not in risk groups to dismiss speech as empty words, or as something which is at worst, the kind of spiteful bullying any sensible person would ignore. But our right to safety must include psychological as well as physical safety, and a right not to feel threatened is fundamental to our very freedom.

Flickr/Melanie Lazarow

Waldron On The Harm In Hate Speech

Posted March 30, 2019

In The Harm in Hate Speech, law professor Jeremy Waldron argues that hate speech is a kind of group libel that defames the members of the targeted group.

Defamation, loosely defined, is the dissemination of a falsehood about a person or group that damages the persons or groups reputation. In legal theory, a distinction is drawn between slander, which is oral defamation, and libel, which is defamation published in print, writing, or broadcast through radio, television, film or the public internet. Unlike slander, libel must have a certain permanence of form.

The sort of group libel to which hate speech belongs, Waldron argues, is criminal group libel. Criminal libel used to play a greater role in U.S. jurisprudence than it does today, where libel and slander commonly are treated as torts. But several states continue to keep criminal defamation laws on the books alongside their civil defamation laws, including Florida, Idaho, Kansas, Louisiana, Colorado, Michigan, New Hampshire, and North Carolina. Montanas criminal defamation law was rendered unconstitutional by U.S. District Court Judge Donald Molloy on March 18, 2019, in Myers v. Fulbright .

The target of criminal libel can be another person a public official, a social group, a government entity, a public school, and even a deceased individual. While dead people obviously cannot sue others, defamatory effects on their reputation can sometimes be considered a damage to the state or the public.

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Strengthening The Dignity Approach

These arguments from Simpson are both compelling objections to the dignity approach. However, I do not think they are fatal. In this section, I show how proponents of the dignity approach can shore up their argument against Simpsons challenges. I argue that by borrowing a couple of crucial concepts from another approach to racist hate speechthe CLS approachwe can resolve the weaknesses of the dignity approach, establishing that racist hate speech strips its targets of dignity and perpetuates racist treatment. Specifically, proponents of the CLS approach offer two key ideas that support this claim: the idea that racist hate speech constitutes harm through discrimination, and the idea that it enacts discriminatory norms that others then follow. While critical legal theorists employ these analyses to show that hate speech, if uncovered, ought to be regulated, I argue that by supporting the dignity approach, these ideas support regulation even if hate speech is covered. In other words, I grant that hate speech is connected to the interests underlying the FSP and deserving of the higher scrutiny that accompanies such classification. However, by impugning its targets dignity via the mechanisms described below, the harms of hate speech outweigh the interests it advances, making it unprotected and a good candidate for regulation.

B Hate Speech And The Expressive Interest

Hate speech ruling

Critical legal theorists also reject the connection of hate speech to what Joshua Cohen calls the expressive interest: a direct interest in articulating thoughts, attitudes, and feelings on matters of personal or broader human concern.Footnote 60 Cohens invocation of the expressive interest is founded on the intuition that part of living a good life includes the ability to bear witness to what one perceives as true and valuable. As Delgado puts it, individuals have a right to develop their full potentials as members of the human community.Footnote 61 Yet Delgado also maintains that expressing hate speech plays no central role in promoting this interest. Rather, he argues that bigotry instead stifles ones moral and social growth, precluding one from achieving higher values like justice or inclusion. Moreover, he does not see racial insults primarily as vehicles for self-expression, but rather as attempts to injure or insult. Just as the intent and impact of hate speech is not to promote discussion, neither is it to express oneself.Footnote 62

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Hate Speech And Real Harm

There are historical precedents showing that hate speech can be a precursor to atrocity crimes.

In recent years, the world has witnessed several mass atrocities. In many of these cases, hate speech was identified as a precursor to atrocity crimes, including genocide. While the use of social media and digital platforms to spread hatred is relatively recent, the weaponization of public discourse for political gain is unfortunately not new. As history continues to show, hate speech coupled with disinformation can lead to stigmatization, discrimination and large-scale violence.

The Scope And Nature Of Regulation

My aim in this paper has been to establish that at least certain types of hate speech ought to be regulated because such speech erodes targets dignity, not to outline the precise scope or form of regulation. I take it that some kinds of speech quite clearly threaten targets dignity and ought to be regulated, especially extreme expressions of racial discrimination that mark members of marginalized groups as severely morally or rationally deficient. If a white man calls a Black woman a slur on a public bus and declares to onlookers that she and other Black people ought to be rounded up and killed, he pretty obviously denies her and other Black people recognition respect, precludes her from enjoying the full privileges of citizenship, and pollutes the social environment with discriminatory norms.

The nature of such regulations would likely be similar to those instituted in the U.S. by the Civil Rights Act.Footnote 66 Civil rights violations, for instance refusing to serve someone at a restaurant because of their race or religion, carry punishments ranging from fines to imprisonment. Given that the longer sentences are reserved for violations involving bodily injury,Footnote 67 punishments for hate speech would likely land on the lower end of this spectrum, comprising mostly fines and perhaps short prison sentences in particularly egregious cases.

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B Enacting Discriminatory Norms

The other way that racist hate speech perpetuates racial hierarchies is by enacting racist norms that others then follow to harm targeted groups. I argue by enacting such norms, hate speech constitutes the harm of discrimination, and by galvanizing others to follow these norms, it also causes harm by encouraging racist treatment. Harm therefore resides as part of both the illocutionary force and the perlocutionary effect of hate speech.

Two features of covert exercitives make this categorization particularly appropriate for hate speech. For one, uttering a covert exercitive and thereby successfully enacting a norm does not require the conscious intent to do so. When one refers to On Liberty, one does not usually intend to raise it to salience, at least in the sense that this is not ones conscious purpose for uttering the name. As McGowan puts it, such intentions are at the very least on the low end of our manifestness spectrum, meaning they are less conscious and less explicit than for instance my intention to refer to On Liberty.Footnote 37 The same goes for hate speech: one can enact discriminatory norms without consciously intending to do so, and indeed many who utter racial insults claim that they are merely speaking their mind or telling it like it is.

Legal And Philosophical Views

The Harm in Hate Speech, by Jeremy Waldron

Waldron is a liberal and a normativelegal positivist. He has written extensively on the analysis and justification of private property and on the political and legal philosophy of John Locke. He is an outspoken opponent of judicial review and of torture, both of which he believes to be in tension with democratic principles. He believes that hate speech should not be protected by the First Amendment. His later work is devoted to providing a non-religious and non-Kantian concept of human dignity, based on a thought experiment of leveling up all human beings to the high rank of nobility or aristocracy, thus constituting a single rank or caste. He has been working on this topic since he gave the Tanner Lectures on the subject in 2009, published in 2012 as Dignity, Rank and Rights.

Waldron has also criticised analytic legal philosophy for its failure to engage with the questions addressed by political theory.

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Slurs Code Words And Dogwhistles

As Parekh, Brison, and others have noted, hate speech can be expressedboth explicitly and subtly. We can identify a few differentexpression-types that map onto the explicit and subtle instances,i.e., slurs, code words, and dogwhistles.The subtler forms may fall outside the scope of narrower conceptionsof hate speech.

Objections To Bans And Some Responses

Though many would agree that hate speech can have destructive effects,and that there is a moral imperative on the state to cultivatesomething like respectful relations between its members, objections tohate speech bans abound. In a wide-ranging response to these concerns,Parekh considers six common objections to theprohibition of hate speech. These six objections are: that theharm of hate speech, while real, is relatively minor and a small priceto pay given the interest of democratic nations that bans are notthe answer, but rather better ideas and morespeech are that a prohibition would have a dangerouschilling effect and that hate speech bans are a slipperyslope to all sorts of unwanted restrictions that bans give thestate too much power to judge the content of speech and decide whatcan or cannot be said, threatening state-neutrality, skewing politicaldebate, and infringing on individual liberty that bans are anobjectionable form of paternalism or moral authoritarianism, and isincompatible with the assumption that humans are responsible andautonomous individuals and that society is made up of free and equalcitizens and finally, that bans are ineffective at changingattitudes and removing the hate from the hate speakers heart,with the result that bans have the effect of moving extremistsunderground, alienating them from wider society, and in doing sorendering us ignorant of their violent potential and impotent toengage in effective de-radicalization.

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