Lecture Notes on Hate Speech

Free Speech and Hate Speech

Moral Issues
Charles Lawrence, III
Jonathan Rauch
John Taylor
Alan M. Dershowitz
Herbert Marcuse

Free Speech and Hate Speech

When addressing the issue of hate speech, two questions immediately arise: 1) What, if any limits should the government place on the freedom of expression? and 2)
If such limits exists, how can we define hate speech so that it and only it is affected by these limits?
The current legal climate in our country has produced rulings that state that the government (or its agencies) cannot limit speech on the basis of its content. Thus,
speech cannot be censored because its message is racist, religious, sexist, or inspirational. While the prevailing attitude in the American judicial system is that the
government cannot censor speech because it disagrees with the message contained therein, this is a legal, not a moral conclusion.
This issue becomes even more complex when applied to campus speech codes. Supporters of speech codes argue that individuals agree to abide by certain rules and
regulations when they attend a college and that a primary goal of a college is to provide a safe environment for the exchange of ideas. From these premises, they draw
support for the adoption of speech codes as a component of campus ordinances aimed at ensuring that individuals feel secure in their persons. Detractors argue that by
censoring hate speech, colleges limit the exchange of ideas and perform in a manner that is contrary to the goal of education.

Moral Issues
Social order: Proponents of speech codes argue that they are needed to maintain the stability of society. Such rules serve to reinforce specific social values and protect
the social order. In general, we accept that it is unacceptable to advocate killing others. Opponents argue that restriction of speech is a very dangerous precedent since
freedom of expression is one of the values that is central to our way of life.
Liberty rights, freedom of speech, and autonomy: Liberaterians argue that we restricting hate speech is an unreasonable restriction of freedom of speech. They
contend that the entire purpose of a right to free speech is to protect those who wish to say things that other people find objectionable. Put simply, you don't need a
right to free speech when you are saying things everyone wants to hear. Also, there is a claim here that you do not have a right to not be offended. Others contend
that hate speech is not simply an expression of ideas, but an attack on another person. As such, it is not protected under a right to free speech. Another objection to
hate speech comes in the form of complaints that rights are supposed to reinforce the autonomy of the individual and hate speech is antithetical to autonomy.
Civility and respect for human dignity: Opponents of hate speech argue that according to deontologists, rights stem from duties. Combining this with a primary duty
to respect the dignity of others, they reject hate speech as a type of action that creates hostility, and oppression that are incompatible with a respect for dignity. The
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response to this argument basically says, you are right about the effects of hate speech, but the appropriate response is not legislation and speech codes. Instead, we
should respond to hate speech by snubbing those who practice it. We should also attempt to provide an open exchange of ideas that shows these views to be baseless
and ignorant.
Harm -- nonmalficence: Do we have a duty to protect people from harm? Does hate speech cause harm? If we answer, "Yes." to both of these questions, then it
appears that we have a duty to restrict hate speech. Opponents of this line of reasoning argue that it may be impossible to legislate against hate speech, yet maintain an
atmosphere of tolerance and communication capable of generating reforms. Thus, they claim that the harm caused by hate speech laws may outweigh the harm
caused to any individual or group in the long run. If we are going to legislate against hate speech, how to we separate hate speech from a call for reform?
The slippery slope: Some ethicists point to McCarthyism and contend that any restriction of speech no matter how well intentioned, runs the risk of starting us down a
dangerous slide into rampant censorship. This issue leaves us with the questions: How do we distinguish hate speech from other sorts of objectionable speech? and
Who gets to decide?
Pluralism and tolerance: This argument says that one of the goals of education in a multicultural society is to provide a forum to examine the ideas of all members and
motivate informed decisions. It is argued that hate speech creates a hostile environment and limits the ability of some members of society to express their ideas. The
response to this argument is that speech codes also, and in a more direct fashion, limit the ability of some members of society to express their ideas.
Impartiality, equal justice, and discrimination: Some ethicists argue that impartiality is not always appropriate for establishing justice. Recall the marxist challenge to
the death penalty. Their argument points out that in the United States we are not all equal. There is a long history of discrimination in our society and to treat all
expressions as equal fails to account for this chilling fact about the context in which the ideas are being expressed. Opponents to this line of reasoning argue that it is
inappropriate to people for their ideas because of the pst deeds of others.

Charles R. Lawrence III

Lawrence argues that hate speech is unacceptable in the United States because it represents its own kind of restriction on free speech. He contends that hate speech
silences the voices of minorities and causes them to be excluded from the free exchange of ideas that a right free speech is supposed to promote.
Lawrence begins by examining the landmark Supreme Court decision Brown v. Board of Education he argues that this case represents one of the most important
cases about equal protection under the law in U.S. history. He asserts that read broadly, it upholds the ideal that everyone is entitled to be a participating member of
the society and that separate schools undermine this ideal. He extends this notion to attack hate speech by arguing that hate speech restricts the participation of
minorities, and as such, should be legislated against.
Lawrence rejects the claim that there is a distinction between hate speech and racist conduct. He contends that the objectives of those who hate are ot achieved
through individual actions, but rather by an institutionalization of the ideas of hate and oppression. Given this, it is our duty to ensure that these ideas are restricted.
Lawrence also rejects the notion that we can separate public actions, such as the government segregation of schools, from private actions, such as an individual
expressing her ideas. He contends that government action is a reflection of the actions of individuals and it is simply misguided to attempt to solve such problems by
attacking the symptom rather than the cause. Since he believes individual actions and ideas serve as the cause of government actions and institutions, he argues that
the best way to address racism is at the level of the individual. Otherwise, we are just treating a symptom of the racism.
In returning to the theme of hate speech as an action that discriminates against minorities, Lawrence contends that racist speech is a type of action that causes harm;
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therefore, it should be regulated in the same way that "fighting words" are regulated. He claims that face-to-face racial insults cause an "immediate injurious impact."
He asserts that the first amendment does not and should not protect speech that has as its sole intention the infliction of injury. He contends that we do not protect
other forms of speech which do not serve to promote truth or understanding, but instead are intended to inflict harm or damage the reputation of others; therefore, we
should not protect hate speech.
Lawrence centers the final portion of his argument on addressing free speech and its role in promoting the free exchange of ideas. He argues that free speech does not
entail tolerance, as evidenced by its coexistence with slavery and institutional racism. He contends that free exchange in the marketplace of ideas is a myth in
American culture. He contends that it is ounded on the idea of free exchange of ideas among white males and racism is one of the main ideas present in this
marketplace. He contends that this undertone of racism devalues the expressions of minorities in a way that inhibits the free exchange of ideas so cherished by
defenders of free speech.
Despite his acceptance of the ideal of free speech and education serving as endpoint for reform to aim at, Lawrence rejects its practical application, calling it "an
empty ideal." He contends that if we are to truly respond to racism, we must do so in as vigorous a manor as we can. He also challenges us to reflect on the messages
we send when we take particular moral and political stands. He claims that when we prioritize the rights of a bigot as "a martyred defender of democracy," we send a
message to the oppressed that they and their interests are not fully valued within our society. This, in turn, provides an impetus for oppressed individuals and groups
to substantiate a need for speech codes that protect their interests. In this vien he calls on all of us to "find ways to engage actively in speech and action that resists and
counters the racist ideas the first amendment protects."

Jonathan Rauch
Rauch contends that we will always have bigoted individuals and bigoted speech. He contends that so long as human beings recognize groups and adopt an us-andthem attitude, there will be bigotry. Simply look at things like school pride, family identity, or competition that occurs over something as simple as a game of trivial
pursuit. Rauch contends that as long as humans continue to form groups, they will react in irrational ways toward nonmembers. Thus, he rejects any attempt to outlaw
specific words or phrases. He firmly believes that people will always find new ways to insult and belittle others if we take away their favorite expressions. Here, i like
to think about myself and my little sister when we were in grade school. Even when we were not allowed to call each other certain names, we simply came up with
new ones.
Rauch argues that the best way to respond to prejudices is to allow them to be openly expressed, then to identify and reject them through education. He rejects the
possibility of reliably distinguishing prejudice and hatred from political speech -- a class of speech he believes must be protected. He use the example of the disease
model of homosexuality to argue that many people may be wrong in their views about the nature of homosexuality without being bigots. Combining these two
positions, he argues that it is important that we avoid stigmatizing controversial speech correct mistaken views through education.
Lawrences cites work by C. S. Pierce (pronounced like "purse") concerning the suppression of alternative ideas. He fears conformity to a particular ideal through the
silencing of its detractors. He also draws in Popper's ideas on philosophy of science where ideas are allowed to stand or fall on their own as competing ideas attempt
to topple each other. Popper believed that the truth will come from this process so long as no artificial constraints inhibit the process of comparing ideas. Lawrences'
argument here culminates in a staunch defense of the dissidents. He contends that the entire ideology of tolerance and pluralism is dependent upon the free expression
of ideas by those who reject traditional, majority, or even palatable positions.
Lawrence argues that the goal of "purists" is unattainable and dangerous. He claims that if we attempt to silence those with whom we disagree or we prevent
objectionable speech, then we are doomed to accept the status quo. He contends that the most powerful weapon reformers have is their voice and that that voice must
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often expression ideas which are not held by the majority and may even be objectionable. Thus, any attempt to silence objectionable speech undermines the potential
for reform.
Editorial Comment: I believe it is quite reasonable to assume that a major reason many people rejected the initial claims of the civil rights movement was out of fear. If
these ideas caused such widespread fear, how could we distinguish them from hate speech. While the simple answer may be, "These were calls to make things better
and provide more opportunity for people." this is certainly not the way most of those who feared the civil rights movement saw the issue. The challenge is to find a
way to protect calls for reform while still meeting the obligation to provide individuals with security in their person.
Lawrence closes his article by citing the case of Salman Rushdie whose book Satanic Verses was condemned by the Ayatollollahs, he was sentenced to death, and a
bounty was offered for him. All of this for espousing ideas that the Ayatollahs found objectionable. He closes by asserting that we should not try to eradicate bigotry,
but rather to correct and criticize it.

John Taylor
Taylor rejects the movement toward politically correct speech as a dangerous political movement. He argues that rather than promoting the free exchange of ideas, it
inhibits this action by limiting the ideas that can be discussed.
Taylor sizes on the effects that charges of racism had on two professors. He is also troubled by the fact that individuals championing the protection of rights hid
behind anonymous attacks with little substantiation and very publicly attacked Bailyn and Thernstrom. Particularly troubling, in Taylor's opinion, is the fact that
Thernstrom decided to drop his course rather than defend himself from such attacks. Taylor contends that this is a very dangerous precedent for a movement that
supposedly champions the free exchange of ideas.
Taylor calls those in the politically correct movement "new fundamentalists." He uses this term to relate the single-mindedness of there pursuit of an ideal to religious
zealotry. He asserts that proponents of the P.C. movement use the same tactic as Christian fundamentalists in that they simply reject all opposition out-of-hand by
dismissing it as belonging to those who are unenlightened. To summarize his position, he cites Hannah Ardent who, in her book The Origins of Totalitarianism,
wrote, "The fanaticized members can be reached by neither experience nor argument." He also cites Camile Paglia who writes that "It [the P.C. movement] is fascism
of the left." He then expresses disdain for a movement which claims to be supporting equality and freedom, yet use intimidation and harassment to silence its critics.
Taylor contends that the victim mentality used by the P.C. movement to support its ideas has left everyone in the role of victim. He contends that the obsessive
preoccupation with making people watch what they say is antithetical to a real education. He cites the case of Reynolds Farley who was forced to drop a class on race
relations after objections to him discussing Southern defenses of slavery and reading a passage in which Malcolm X refers to himself as "a pimp and a thief."
Taylor is also concerned that the P.C. movement allows oppressed groups to speak out in way that challenge and even degrade traditional views while not any
chance to respond. He cites the example of feminists referring to a traditional date as simply a euphemistic expression for prostitution and equating all sex between a
man and a woman to rape. He also challenges the acceptance of Afrocentrism and its message of intolerance for Caucasians while attempting to silence the response.
Taylor closes by arguing that emphasis on difference and restriction of speech does not and cannot eliminate bigotry. Rather, he contends that it exacerbates the
problems by bringing them to the forefront, then trivializing the issue.

Alan M. Dershowitz
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In general, Dershowitz agrees with Taylor. Dershowitz approaches the issue from a slightly different perspective, but he concludes that the P.C. movement has
contradictory goals and is ultimately a threat. Dershowitz contends that the P.C. movement is dangerous because it substitutes ideology for morality.
Dershowitz identifies the two main goals of the P.C. movement as the demand for greater diversity and the need for speech codes. He contends that these two goals
cannot both be simultaneously satisfied in any meaningful manner. If the goal of education is to expose people to new ideas and multicuturalism is to benefit this
ideal, then the call for more diversity is a good thing. However, if the pluralism is accompanied by codes which limit the ideas that can be expressed, then the benefit
of increased diversity is lost. He contends that it is also contradictory for students to assert that they should be treated like adults; yet, demand to be protected from
things that offend them.
Despite his disdain for the P.C. movement, Dershowitz also notes that those on the political right who would gladly use speech codes to enforce their ideas are not the
idealistic defenders of free speech they claim to be.

Herbert Marcuse
Marcuse rejects the arguments of those who attempt to defend hate speech as falling under a right to free speech. He argues that complete freedom of speech cannot
work in our society because it allows all views in our society to have equal moral standing, whether they are true or not. He rejects the notion that all views deserve
equal consideration in our society.
Marcuse contends that neutrality and objectivity are not well served within a society that possesses social, political, and economic inequalities. Likewise, he asserts
that the current attitude of tolerance that is held up as a liberal ideal is a sham. Rather than promoting tolerance for others, he believes that it actually promotes the
status quo of oppression. He claims that the when the media offers competing opinions, this inevitably leads to a promotion of the status quo. He believes that when
people are presented with two conflicting sets of information, they are more likely to accept the one that supports their original idea. Note: There is evidence from
cognitive psychology to support this position. Thus, the appearance of objectivity is actually an exercise in support of the norm.
Marcuse also attacks the educational system by claiming that one of its primary goals is to teach children to respect the norms of society not necessarily searching for
the truth. When we combine this with the illusory objectivity of the media, we get a situation in which people are taught to conform to the norms of society, then
when presented with both sides of an issue, they tend to return to those norms as a means of analyzing the situation, thus, there is no solid basis for real discourse on
the matter. What may appear on the surface to be objectivity and tolerance is actually an exercise in conservatism.
For Marcuse, one of the most troubling aspects of this scenario is the false consciousness of the masses it creates. People who honestly believe that they are being
tolerant and promoting a rational discourse of ideas are actually unwittingly supporting the conservative underpinnings of an oppressive society. Marcuse contends
that advocates of tolerance must avoid advocating tolerance of intolerance. Tolerance should not be extended to false views. He contends that protecting the
expression of false views prevents us from reaching the ultimate goal of tolerance -- the truth. Unless people are able to demonstrate the truth of their ideas through
rational means, then they should not have the freedom to express those ideas. In his opinion, free and equal discussion can only take place if the discussion is rational
and aimed at identifying the truth.
Marcuse argues that we should withdraw our tolerance from regressive movement before their speech and ideas have a chance to turn into actions. Thus, he contends
that we should reject the ideas promoted by hate speech and restrict their dissemination before they have a chance to be converted into oppressive actions and
institutions. He contends that this is open and direct censorship, but that it is necessary to counteract the indirect and oppressive censorship that permeates our current
social situation. As he states, "The conditions under which tolerance can again become a liberating and humanizing force have still to be created.Marcuse is willing to
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accept that his calls for limitations on speech and expression will be unsettling to many. This does not concern him. He is willing to accept civil disobedience, i.e.,
actions in violation of (or opposed to) the law, in circumstances where legal means of protesting oppression are ineffective. Thus, if hate speech is not dealt with
within the law, it may become necessary for oppressed individuals to act outside the law to respond to their oppressors. As he says, "Law and order are always and
everywhere the law and order which protect the established hierarchy; it is nonsensical to invoke the absolute authority of this law and this order against those who
suffer from it and struggle against it . . . There is no other judge over them than the constituted authorities, the police, and their own conscience. If they use violence,
they do not start a new chain of violence but try to break an established one." (p. 615)

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