“The Harm of Hate Speech”. What Say You?

Women are well-acquainted with hate speech, most of which goes entirely unnoticed.  In a recent book by Jeremy Waldron, The Harm of Hate Speech (Harvard University Press), he argues for hate speech legislation, realizing that Americans are unlikely to go for it.  (Book is reviewed in today’s NYT Sunday Book Review.) So, what do feminists think about the possibility of hate speech legislation?  Personally, I’m inclined towards it.  What say you?

27 thoughts on ““The Harm of Hate Speech”. What Say You?

  1. Jeremy, I think you may not get the point. Political hate speech can lead to people shooting innocent people, or indeed plotting against the president. If we think that’s bad, what does it have to do with treating women like children?

    Comparable hate speech against women can lead to gratuitous violence in the home and out of it. What wrong with thinking that should not be happening? And what does it have to do with treating women as children?

  2. I think it is a shame Jeremy started this discussion off with an ad hominem. My position is this: There is a difference between what should be morally permissible and what should be legally permissible. I think that saying (for example) that women are inferior to men is wrong (both because it is false, and because it is a morally reprehensible attitude to hold and to spread). However, I do not think that it should be illegal to say that women are inferior to men, because (as a general principle) I think our laws should be as permissible as is reasonably possible.

  3. I have always found hate speech a difficult topic for me to sort through. I find many things may be morally wrong or harmful that are not best dealt with via legislated criminalization. I don’t doubt that hate-speech is harmful, and was just marveling this morning over breakfast that it is exceptionally difficult to ignore; anyone who’s experienced hate-speech directed at them knows how memory of it comes back to kick you in the temple and makes you want to dig your brain out with a spoon. But I do not know if the penalization and monitoring of it is left in the right hands with most forms of hate-speech legislation that I’ve seen.

    This has been my settled position with respect to death-penalties for many years, that they can be deserved by should not be left in the hands of differently biased, arbitrarily enforcing people to deliver. Perhaps I think the same about hate speech penalties. Hmmm…

  4. I just might pick up a copy of Waldron’s new book to give a proper hearing to his arguments. I thought his God, Locke and Equality: Christian Foundations of Locke’s Political Thought was a significant contribution, and would expect the hate speech book to be interesting and well-written if nothing else.

  5. I have to say that I don’t like the category ‘hate speech’. Perhaps he tries to define it, but it seems way too broad.

    The reviewer claims that hate speech doesn’t lead to damage; it just produces community rallying around. I find that hard to believe.

  6. There are several arguments against banning hate speech.

    First, in the world of internet it is impossible to police without a huge security apparatus, which in itself may be more of a danger than hate speech. Without the huge security apparatus, laws against hate speech will just be laws that no one obeys and laws that no one obeys tend to create disrespect for legality in general, which is not a good thing.

    Second, laws against hate speech are a double-edged weapon. It depends on who is using them. They could have been used in the 60’s against the Ku Klu Klan, but also against Malcolm X and the Black Panthers, whom I rather like. They might have also been used by the wrong people against certain very radical feminists, whom I am also rather fond of.

    Third, laws against hate speech do nothing to end hatred: they drive it underground. When hatred is open and spoken, we can debate it: we can show that it is often (although not always) based on lies, stupid prejudices, misinformation and delusions. When it is underground, there is no more open debate.

  7. I have trouble with this issue too, though I have tried hard to work through it…
    http://www.pegtittle.com/free-to-be-offensive.html

    Click to access The%20Verbal%20and%20the%20Implicit.pdf

    I once suggested, only half in jest, that it ought to be illegal to say ANYTHING without also giving one’s reasons for one’s claim. That would eliminate most hate speech.

    Bottom lines: words cause injury; freedom of expressions is critical. How to reconcile the two? Physical gestures also cause injury, freedom of bodily integrity and movement are critical, and yet we seem to have reconciled those.

    Dunno.

  8. What I appreciate about swallerstein’s points is that they do not diminish the point that hate-speech can be harmful. Like annejjacobson, I find arguments that it is non-harmful to be implausible. If it’s not harmful, then are all those of us who’ve experienced it as harmful just wrong, or deluded, or…?

  9. Right. I don’t mean to claim that hate speech or even hateful looks are not harmful.

  10. I don’t see the reviewer saying hate speech doesn’t cause harm, but rather that the harm may be mitigated by positive effects on the community – which is something the probably should be taken into account when considering whether it ought to be proscribed.

  11. I agree with JT in post #3.

    But my concerns aren’t so much about free expression, per se. My concern is that hate speech legislation has the potential to enable nefarious police officers, prosecutors, and judges, which is something we should generally be working against. As soon as these folks have a piece of legislation that they can use against people working for social justice, they’re going to use it.

    Beyond that, I’m generally skeptical of hate crimes legislation generally just because it has the practical effect of making prison sentences that are already absurdly harsh even more absurdly harsh.

  12. annejjacobson says that she ‘do[esn]’t like the category ‘hate speech’’: nor do I; nor does Waldron.

    I don’t like the phrase ‘hate speech’, because, like so many phrases and phrasemes that academics use, it is ungrammatical jargon and its vocabulary points to something that differs from the concept to be captured. First, the word ‘hate’ is a noun, but it is being used adjectivally. This ungrammatical use of the word ‘hate’ obscures the role that word is being expected to play, in the qualification of the noun ‘speech’. I guess that the noun ‘hate’ should be replaced with the adjective ‘hateful’, but who, here, is ‘full’ of ‘hate’? Bringing such clarity to the phrase only serves to show us why the phrase is analytically unhelpful: it misguidedly focuses our attention on some speaker’s attitude. Second, the word ‘speech’ is, like most of  philosophy that adopts an Anglo-American approach, hell-bent on privileging verbal language over non-verbal language. We need to face up to the fact that much of (the majority of?) human communication consists in non-verbal sensory data that, with the help of prevailing semiotic codes, well-established in society, we readily associate with specified affective and cognitive responses. No one ever need open his mouth, in order to produce what goes by the euphemism of ‘hate speech’. For these two reasons, I prefer a term that evokes the wrong done to the targets of this category of communication and a term that evokes the breadth of media that this category of communication can adopt. I prefer the term ‘stigmatising signage’.

    Waldron is alive to these sorts of concerns. In his lectures of 2009 (http://www.law.nyu.edu/news/WALDRON_HOLMES_LECTURES), upon which this latest publication is based, Waldron says the following (1600-1601): 

    ‘When we call these phenomena “hate speech,” we bring to the fore a number of connotations that are not entirely neutral. If we say we are interested in restrictions on hate speech, we convey the idea that the law is proposing to interfere with the spoken word, with conversa- tion, and perhaps with vocabulary, with our use of racial or ethnic slurs or epithets — stammered out, as Justice Jackson once put it, “when the spirits are high and the flagons are low.”11 Speech, in the sense of the spoken word, can certainly be wounding.12 But I believe that the expressions of hatred that should concern us include most prominently those that are printed, published, pasted up, or posted, or in some other form become part of the visible environment in which our lives have to be lived. No doubt a speech can resonate long after the spoken word has died away, but to my mind it is the enduring presence of the published word that is particularly damaging. 

    ‘The kind of speech we say we are interested in regulating is hate speech, and that word “hate” can be distracting too. It suggests we are interested in looking at and regulating the passions and emotions that lie behind a particular speech act.13 The word “hate” emphasizes the subjective attitudes of the person expressing the views or publishing the message in question. It sounds as though it locates the problem as an attitudinal one and focuses on what motivates the speech in ques- tion.14 (It is like the phrase “hate crimes” in this respect, and people may be excused for thinking that the controversy over hate crimes — over the use of mental elements like motivation as an aggravating fac- tor in criminal law — is directly relevant to the controversy over racial expression.)15 The word “hate” suggests — I think misleadingly — that the task of legislation that restricts hate speech is to try to change people’s attitudes or control their thoughts’.

  13. Interesting post NATC,

    I would have thought at this stage that very few interested parties in the U.S. would associate “speech” with the spoken word, especially with so many court cases surrounding things like pornography, flag-burning, and political donations being resolved on “free-speech” grounds,

    Waldron’s claim that the hate speech discussion should be divorced from talk of attitudes or motivations strikes me as odd. Could there be racist speech without at least some language users having racist beliefs and attitudes? Surely, it not the sound or structure of the sign vehicle itself that is objectionable. Perhaps this issue comes down to whether or not you’re a thoroughgoing externalist about meaning (I’m not).

  14. Waldron’s book is the latest in a long line of progressive books and articles arguing that certain disfavored opinions should be outlawed because they cause harm. The flurry of literature enumerating these harms is pretty perplexing, given that most of the defenders of the freedom of opinion and discussion have never denied that opinions can cause serious harm. It is true that, on a certain reading of Mill (a very bad misreading, in my opinion) he says that opinions lose their immunity when they cause harm. But, even if Mill said that (and I think it’s pretty clear that he did not), there are many others besides Mill who acknowledge that a great number of opinions cause harm, but nevertheless think that citizens should be free to publicly defend these opinions. So it’s strange to see book after book come out in favor of censorship, while simply failing to engage with the arguments of those who oppose censorship, but rather piling up harm after harm caused by racism, sexism, pornography, holocaust denial, and the like.

    More to the heart of the matter: there’s a big problem with the following line of argumentation: Opinion X causes harm; therefore we should outlaw the public defense of opinion X. The problem is that it overgeneralizes. It doesn’t just end up applying to the KKK, the Westboro Baptist Church, and Larry Flint. It ends up applying to a whole host of views that most progressives would not be comfortable legally proscribing (I don’t think). Think, for instance, about the potential harm to be caused by global warming skepticism. This opinion quite literally has the power to wipe countries like Bangladesh from the face of the earth. Think about the potential harms of a centrally-planned economic system. In China, between 1958 and 1961, somewhere between 20 and 40 million people starved to death as a result of the opinion that centralized economic planning would lead to greater prosperity. However, I don’t think that we ought to make communism or global warming skepticism illegal (and I hope you don’t, either). But if we’re not going to legally sanction those opinions, which have the potential to bring about an enormous amount of really serious harm, then how can we suggest that the harm caused by so-called hate speech warrants censorship?

  15. But contra J. Dmitri’s formulation, “Opinion X causes harm; therefore we should outlaw the public defense of opinion X,” consider that the definition in laws so far regarding hate-speech describe it as any public expression inciting hatred on the basis of association with a group. So the formulatin isn’t “Opinion X causes harm,” the formulation is “If Expression X is public and incites public hatred, and on the basis of association with a group, then it causes harm;” call such expressions X*. This doesn’t entail outlawing all harmful opinions, “opinion X.” It doesn’t even entail ‘outlawing’ all X* expressions, but does provide justification for prosecution on the basis of X*.

    So if I scream at a rally in a park, “Obama’s an atheist Muslim fundamentalist, burn him!” (yep, I’ve actually heard him described as an “atheist Muslim fundamentalist”), then I don’t provide a defense of an opinion. No defense need be mounted. According to those at the assembly at which I’ve heard the ‘atheist Muslim’ phrase, it’s not even an opinion! (“IT’s a FACT!” one man explained.)

    And this is also an example of an X* expression which would not be prosecuted. In this example, U.S. “Sullivan” laws often, though not always, permit the statements if they are about public figures who have put themselves in the public eye.

  16. Kate, I’m sure that we could legally define a range of opinions which would include racism and would not include communism. My point was just that the justification offered for these laws doesn’t seem to discriminate between the two.

  17. ajkreider, I think you’re right both that the idea that the “Anglo-American approach” is “hell-bent on privileging verbal language over non-verbal language” is highly questionable, and that jurisprudence is a useful place to look for contrary evidence.

    Compare, for example, [i] US Supreme Court jurisprudence on the Free Speech Clause of the federal Constitution to [ii] European Court of Human Rights (and European Commission on Human Rights) jurisprudence on Article 10 of the European Convention. In the US the seminal opinions exploring the nature, and asserting the protection, of nonverbal expressive conduct and “symbolic speech” date mostly to the 1960s and early 1970s (so that by the famous flag-burning case of the late 1980s, the groundwork was well-established). For the ECHR, the comparable developments are, to my knowledge, chiefly from the last 20 years or so.

  18. Two things:
    1. I misreported the part of the review I found unbelievable, as ajkreider pointed out.. It was this:

    Most publicized incidents of hate speech in the United States — cross burnings, homophobic leafleting, talk-radio ugliness and so forth — seem to produce an outpouring of opposition that probably strengthens rather than weakens the victim’s assurance of security.

    I doubt, for example, that transpeople feel safer when the killing of a trans person gets into the news and there’s an outpouring. But at least, the statement is a staggering generalization. It also neglects the fact that often the outpouring is not supportive. Anti-muslim tirades can just lead to more of the same.

    2. It seems from what I’ve read that Waldron is not talking generally about harmful or dangerous speech. He’s got in mind a kind of harm, which is roughly being deprived of the respect and protection owed one as a member of a society.

  19. One of the things that makes the harm from speech difficult, or at least more difficult than the harm from physical acts, is that to some extent the harm one experiences is ‘one’s own damn fault’ to put it bluntly – one’s beliefs and attitudes determine whether one finds something offensive and, further along that continuum, harmful.

    If my neighbor is so uptight she actually winces whenever I use the word ‘fuck’ am I really to blame and legitimately accused of causing harm with my speech? This can easily be extended to claims about religion. And so forth.

    In the physical realm, however, unless you have some rare condition, a gentle punch on the shoulder is not going to break any bones. It may still be an act of agression, but if we’re looking solely at harm, then we can’t say that the harm of physical gestures is as dependent on the ‘recipient’.

  20. I think the harm of physical gestures is in some sense just as dependent on the recipient; perhaps it’s just that there’s somewhat greater uniformity of susceptibility to broken bones from sticks and stones (if we just look at adults, anyway) across the population than of susceptibility to being hurt by words.

    Interestingly, in the realm of physical aggression, in the case you evoked – where you have a rare condition – the person who punched you on the shoulder is responsible for all the harm caused even if they had no reason to suspect that a mild shoulder-punch would seriously harm you (this is the so-called “eggshell skull rule” or “take your victim as you find him” rule of the common law). But with respect to the effects of words, the traditional tendency has leaned towards using the ordinary or average hearer as the standard (e.g. with respect to things like “fighting words”).

  21. The law has to distinguish between utterances that cause harm and those that merely cause offence. It should also take account of how reliably it can be inferred that harm will result, given the circumstances.

    Obviously, burning a cross outside the house of a black family in a southern US state is harmful because it’s threat. But burning a cross outside the house of a Muslim family in Pakistan might be mere expression of political protest. It expresses “hate”, of course, but that’s what political protests tend to do. People who protest against rape hate rape, and hate rapists, quite understandably.

    Since almost all political protests are expressions of hate, and since many politically-motivated groups and individuals try to paint themselves as victims of harm when they are merely objects of hate, the law should put the burden of proof on those who claim to be victims. That is how it is and how it should be in all other crimes.

    In other words, if the law must err, it should err on the side of being more rather than less permissive. Society should be prepared to absorb some limited harm for the greater good of freedom of thought and expression.

  22. ajj,

    You’re right about Waldron. The talks of his posted by NATC were very interesting and well-argued, I thought. The harm isn’t the offense taken at the speech, but the resulting loss of the assurance of being treated with the dignity to which a full-fledged member of society is entitled.

    As one might expect, there are a host of further questions that arise from Waldron’s argument (a mark of good philosophy, probably), but interesting nonetheless.

  23. Jeremy Bowman, you take the point of most protests to be expressions of hate? Are you using a broad definition of hate such that all expressions of anger are expressions of hate?

    Hate seems an overly powerful descriptor of the point of protests. With Boxill, King, and others, I’d say that self-assertions or defenses of others are separable from expressions of hatred.

  24. profbigk, it seems to me that the “internal” contents of a person’s mind are her own business, and should lie beyond the reach of any law. Let laws prohibit the harm that one agent can do to other agents, but not this or that mental state that exists inside an agent’s head. One of the main problems with laws against “hate speech” is that it is very hard to determine whether an utterance is motivated by “disagreement”, “disapproval”, “dislike”, “hate”, or whatever. It really shouldn’t be any of the law’s business.

  25. Jeremy, there are a number of places in the law where internal states come into question. Premeditation, knowledge of truth or falsity, intent, etc, etc. one wants external criteria for such things, but that’s not hard for just about. Any of the ones in hate speech.

  26. annejjacobson:

    We classify acts with reference to the beliefs and desires that cause them, but legislation must bear on the acts themselves, not those mental states. For example, attempted murder and fraud are caused by murderous intent and knowingly promulgating falsehoods, respectively. The law must be brought to bear on acts of attempted murder and acts of fraud, both of which are obviously harmful. It should not apply to mental states of “feeling murderous” or “wanting to promulgate falsehoods”. If the law were applied to those mental states instead of the harmful acts they cause, it would create “thought crimes”, literally Orwellian “crimes” of having the “wrong thoughts”.

    No law can or should make “speech” itself illegal, so we often need legislation to protect people from harmful speech acts such as threats and incitement to violence. To determine whether an act is harmful, we have to focus on its likely effects in the circumstances rather than on its mental causes. The whole thrust of legislation against “hate speech” as opposed to harm is to focus on the wrong thing.

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