Unlike a Scotch Egg

Glen Newey

  • BuyThe Harm in Hate Speech by Jeremy Waldron
    Harvard, 292 pp, £19.95, June 2012, ISBN 978 0 674 06589 5

‘You are a totalitarian asshole.’ It’s probably not the sort of email that often drops into an All Souls professor’s inbox but, as Jeremy Waldron tells us, some people take the doctrine of free speech literally, and cut up rough when they think it has been slighted. All the same, one assumes that the sender of the email would defend to the death Waldron’s right to question the doctrine, or even (though Waldron goes nothing like this far) to reject it. Free speech is nothing if not a platform for totalitarian assholes.

The sender’s rage was sparked by Waldron’s questioning the US consensus on free speech, whose core text is the clause of the First Amendment that enjoins Congress not to make any law abridging the freedom of speech or the press. Waldron wants to exempt hate speech from its scope, though it’s important to distinguish between prohibiting a form of speech and merely failing to grant it constitutional protection. Waldron’s arguments are about withdrawing protection, not prohibition.

As usually interpreted, the amendment applies broadly, particularly as regards what counts as ‘speech’. The Supreme Court’s Citizens United ruling of 2010 lifted a previous ban on the corporate funding of political advertising – for example, in support of candidates in election campaigns. In Ashcroft v. Free Speech Coalition (2002), the Ninth Circuit held that free-speech protection should extend to child pornography created either by virtual means or by using adult actors presented as children. In Hudnut (1985) it was held on appeal that an Indianapolis statute which aimed at outlawing material depicting ‘the graphic sexually explicit subordination of women’ violated the amendment.

However, some ‘fighting words’ have been judged not to benefit from constitutional protection, as in the Supreme Court verdict in Chaplinsky (1942). This upheld a Jehovah’s Witness’s conviction for describing a New Hampshire marshal, who had tried to stop him preaching, as a ‘racketeer’ and ‘damned fascist’. The court defined ‘fighting words’ as those ‘that by their very utterance inflict injury or tend to incite an immediate breach of the peace’. Subsequent rulings by the court have diluted this judgment, as justices seek to pick out a line between allowing injurious speech to flourish unchecked and repressing the robust exchange of opinions. In Snyder v. Phelps (2011), it ruled that the bereaved family of a marine killed in Iraq, whose funeral was picketed by bigots from Westboro Baptist Church chanting ‘fag troops’ and ‘thank God for dead soldiers’, could not recover damages for tortious infliction of emotional distress. The chanters regarded the death of the marine, Matthew Snyder, as God’s punishment for the state’s tolerance of homosexuality (Snyder himself was not gay); the court found that their chants were entitled to special protection. One judge, Samuel Alito, dissented, denying that the First Amendment includes ‘a licence for the vicious verbal assault that occurred in this case’.

So we arrive at the seemingly simple question that Waldron’s book addresses: should a commitment to protecting speech include hate speech? The competing positions are neatly summarised by the 1966 International Covenant on Civil and Political Rights. Article 19 states that ‘everyone shall have the right to freedom of expression,’ while Article 20 provides that ‘any propaganda for war shall be prohibited by law’ (which you might think applies to, say, the Blair government’s case for war in 2002-3), along with ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’. The tension between the two articles exposes the oddity of the liberal consensus on free speech, which tries to merge two hard-to-merge thoughts: first, that because access to speech matters, people should be free to say what they want, and stifling speech inflicts harm; second, that words can be freely aired because they are far less harmful in their effects than other kinds of action (this might be called the ‘only words’ doctrine). But why should banning speech cause harm, whereas verbalising doesn’t, even though an obvious reason for wanting to gag people is the fear that not doing so may cause harm? Clearly, the prospect of such harm can be exploited to squelch opinions one doesn’t care to hear. But the fact that some people cite harm disingenuously doesn’t show that the preponderance of harm arises from a regime of gagging rather than talking (proponents of free speech can be disingenuous too, as with the UK newspaper industry’s pieties during the Leveson inquiry).

The idea that the only bad thing that can come of speech is its suppression sits best with a view of language-use as blurting. Talk matters mainly, on this view, not to get something across, but to get it out – a sort of psychic expectoration. This is no accident, since early writers about free religious expression were principally concerned with ensuring that dispatches from the individual conscience could get aired. In the nascent free-speech doctrine, the interactive aspect of communication, other than with the Almighty, played a secondary role. The nub of this doctrine is ‘To thine own self be true,’ where integrity – saying what one conscientiously thinks, or at least not saying what one doesn’t think – is central, just as it is in John Rawls’s theory of justice of 1971.

The claim that access to speech matters doesn’t flatly contradict the ‘only words’ doctrine (both are endorsed in Mill’s On Liberty). But a supporting narrative needs to be added if they are to cohabit peaceably, one showing that only stifling speech, rather than facilitating it, can cause harm, or at least that the harm of free speech is of a lower order than that of stifling it. (Mill exempted speech serving as incitement.) It’s hard to see why speech can matter only in a good way: it can do so only if the one relevant aspect of speech is the act itself, rather than its effects – which, like those of any other act, may be good or bad. The freedom of ‘free’ speech then rests on the claim that it is costless, in that (whether or not it is commodified, as with internet paywalls) its expression is harmless. But speech often causes harm, as with the reputational damage done to Western clothes firms by the exposure of sweatshop labour practices in their supply chains. These are surely justifiable harms caused by speech.

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