Jeremy Waldron,

The Harm in Hate Speech

(Harvard University Press 2012)

With The Harm in Hate Speech, Prof. Jeremy Waldron (New York University School of Law and All Souls College, Oxford) has simply written the most balanced, moderate and eloquent defense of laws restricting hate speech to date. Whether politicians, legislators and academics will be prepared to engage honestly and reflectively with his arguments remain to be seen.

In 2009, Professor Jeremy Waldron, an academic originally from New Zealand who has spent most of his academic career in the UK and the USA, was invited to hold the prestigious Oliver Wendell Holmes Lectures at Harvard University in the USA. Named after the legendary US Supreme Court Judge Oliver Wendell Holmes Jr. (1841–1936), to whom the proverbial statement ‘the most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing panic’ in Schenck v United States 1919 is attributed, Waldron’s three lectures were originally published under the title Dignity and Defamation: The Visibility of Hate in the Harvard Law Review in 2010. In the present book, however, Waldron develops and expands significantly on the arguments in these lectures.

In introducing his argument about hate speech, Waldron is well aware of the fact that in the US context, in which there is an overwhelming consensus concerning the merits of the US approach to freedom of speech as developed in the jurisprudence of the US Supreme Court in the 20th century, he is unlikely to win many supporters in the legal fraternity: ‘…As things stand, I think it is unlikely that legislation of the kind I set out above will ever pass constitutional muster in America’ (p. 11). Nor is Waldron blithely unaware, having apparently received no small amount of hate mail accusing him of being a “totalitarian” (and worse) on account of his legal and philosophical stance on these issues, of the sheer unpopularity of the case he is defending. Waldron seems, however, to think that hate speech restrictions enjoy greater popular support and legitimacy in European countries. Here I am afraid I have to disappoint him slightly, for many of the academics who have publicly defended existing legal restrictions on hate speech in Scandinavia and elsewhere in Western Europe know only too well the kind of abuse such actions have invited from liberal media editors, the public, and fellow academics alike in recent years. The reasons for this may be manifold, but personally, I think a valid argument could be made in the case of Norway at least, to the effect that liberal elites have in the course of the last decades moved increasingly in the direction of hegemonic conceptions of freedom of speech and it limits found in the USA.

So what does Waldron mean by hate speech regulation? In the introduction, he refers to the kind of regulation to be found in ‘Canada, Denmark, Germany, New Zealand, and the United Kingdom’ (p. 8). The list could well be extended, for restrictions against hate speech are found in a great many countries – not least because of the strong impetus toward such restrictions in various modern UN conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights – and the ultra-liberal US approach to hate speech is if anything a global exception or outlier.

Waldron’s defense of the regulation of hate speech positions itself within a liberal framework concerned with the balancing of individual rights. It hinges on the necessity in a liberal and democratic state of defending individual human beings’ rights to dignity (conceived of as ‘the fundamentals of basic reputation that entitle them to be treated as equals in the ordinary aspirations of society’) and a sense of security as a public good. For these are, according to Waldron, elements of what John Rawls in the seminal Political Liberalism referred to as a ‘well-ordered society’ in which ‘everyone accepts, and knows that everyone else accepts, the very same principles of justice’ (cited p. 69). It is of course noteworthy here – and a point which Waldron readily concedes – that we do not really know anything in detail about Rawls’ views on hate speech and hate speech restrictions – or whether he would have been supportive of Waldron’s own views on this. Waldron is in other words concerned with the societal effects of hate speech on minority individuals in liberal democracies. He is concerned with ‘defamation of individual members via group characteristics, not defamation of the group as such’ (p. 122). Liberals, who are usually not among the targets of hate speech often belittle these effects, by arguing that causative links between hate speech and hate crimes are not demonstrable, or simply by arguing that the people who are so targeted will simply have to “live with it”. Such liberal stoicism or bravado on behalf of others is of course nothing new in the annals of liberal thinking about free speech, but Waldron is to the point when problematising it. Even though it is often demonstrable in cases of hate crimes that hate speech precedes the hate crimes (whether in the form of physical assaults, murder or attempted murder), Waldron’s arguments do not require the demonstration of causative linkages between speech and violence, and are all the better for it. The assumption that legislation against hate speech targets “thought that we hate” by turning such thought into “thought crimes” is often propounded by free speech absolutists. In an efficient refutation of Anthony Lewis’ work on this in chapter 2 of this book, Waldron contends that far from defenders of hate speech laws wanting to ‘get inside people’s minds’, they are concerned with public speech acts (p. 33). In an engagement with the free speech absolutist C. Edwin Baker, Waldron takes issue with Baker’s argument to the effect that any kind of restriction on hate speech infringes on the formal autonomy of individuals. To a convinced racist, his racist ideas are central to his view of the world and his values. Here, Waldron readily concedes that hate speech laws actually make ‘public expression of ideas less free than it would otherwise be’ (p. 149). Yet, as Waldron points out, as citizens and individuals we readily accept all kinds of infringements on personal autonomy: In the face of the harm it may do to other individuals, I am not free to ignore speed limits on the highway, or other basic traffic rules, at will, or for that matter, to have sexual intercourse in full public view. A balancing between different rights are on Waldron’s account also in the case of speech entirely appropriate.

It is a common rhetorical strategy of free speech absolutists to confound various categories of ‘injuries’ sustained by hate speech. A liberal elite mantra in the age of Islamophobia is that it is simply not the business of the law to protect individuals against feelings of offense. To Waldron – as to this reviewer – this seems right. For if the law engaged in the business of protecting individuals from feelings of offense (and people do of course get offended all of the time, and on the most absurd pre-texts), there would be little else for it to engage in. One of the great merits of Waldron’s approach is that it is clearly distinguished from the dubious attempts to have national and international law protect against various forms of offense to groups. The Organization of the Islamic Conference’s (OIC, renamed the Organization of Islamic Co-operation in 2011) failed attempts to push through international legislation against so-called “defamation of religions” in recent years comes to mind here, as does various national legislation against “blasphemy”.

An absolute highlight of Waldron’s book is his refutation of Professor Ronald Dworkin’s arguments against any restrictions on hate speech on account of its supposed infringements on principles of political and legal legitimacy in a democratic society. If anyone merits the epiteth ‘free speech absolutist’ in our time it is Dworkin: As Professor Stephen Holmes points out, Dworkin even defended this position in the midst of the Bosnian genocide in the 1990s, which was preceded by years of hate speech targeting Bosnian Muslims.1 This reviewer is unable to do full justice to the elegance with which Waldron dismantles Dworkin’s arguments on this point, but its basic outlines run as such:

Dworkin argues that ‘freedom for hate speech…is the price we pay for the legitimacy of our enforcing certain laws that the hatemongers oppose’ (cited on p. 174). Dworkin’s argument is based on a distinction between “upstream and downstream laws” in which the former includes hate speech laws, and the latter laws against violence and discrimination. For Dworkin, upstream intervention delegitimises downstream intervention. Or, to put it, bluntly and empirically, as Waldron does: On Dworkin’s account, an implication would be that British police, by virtue of Britain having a law against religious hate speech, were wrong to arrest British skinheads who beat up a Muslim minicab driver after the London bombings of 7/7 2005 (p. 185). This is of course so absurd as to warrant the question as to how (or indeed, whether) such a distinguished scholar as Dworkin could really hold such views.

Professor Jeremy Waldron’s The Harm in Hate Speech is required reading for anyone interested in the legal and philosophical questions relating to freedom of expression and its limitations in multicultural Europe.