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On Resurrecting Beauharnais:
Jeremy Waldron and Group Libel
by
Terrence Heinrichs
Associate Professor, Political Science, York University
Acknowledgments
I would like to thank the following for their kind assistance in
reading and commenting on this manuscript, and for listening to
my many rants over pints and pints of beer: Bill Irvine, Mark
Lippincott, Ed Andrew, David Carvounas, and, of course, the
lady of the house, Anne J. Green.
Special thanks go to James Bennett both for his comments on
parts of the manuscript and for the time and energy he devoted
preparing it for publicationall the while having to deal not only
with my many ongoing additions and subtractions but with the
added burden of law school as well.
Preface
In The Harm in Hate Speech, Jeremy Waldron opens his
defense of group defamation statutes with the following anecdote:
A man out walking with his seven-year old son
and his ten-year-old daughter turns a corner on a
city street in New Jersey and is confronted with a
sign. It says: Muslims and 9/11! Dont serve them,
dont speak to them, and dont let them in. The
daughter says, What does it mean, papa? Her
father, who is a Muslimthe whole family is
Muslimdoesnt know what to say. He hurries
the children on, hoping they will not come across
any more of the signs. Other days he has seen
them on the streets; a large photograph of Muslim children with the slogan They are all called
Osama, and a poster on the outside wall of his
mosque which reads Jihad Central.1
Preface
Which he says refers to publications which express profound disrespect, hatred, and vilification for the members of minority groups. Given that his concern is limited to protecting minority groups from expression he thinks harmful, he also appears to be a double-standard speech suppressionist as the definition does not apply to such attacks on majority group members. Waldron
at 27. See Chapter II.
Preface
John Paul Stevens, Should Hate Speech Be Outlawed?, The New York Review of Books (June 7, 2012) (book review, reviewing Jeremy Waldron,
The Harm in Hate Speech (2012)), at http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed/?pagination=false.
Preface
Given that he is allegedly targeting only group libel, and given that group libel
is only an aspect of what currently passes for hate speech, it is puzzling why
Waldron titles his book The Harm in Hate Speech.
Preface
Preface
Preface
people by jihadist Major Nidal Hasan at Fort Hood, the Armys Chief of Staff,
General George Casey said: Our diversity, not only in our Army, but in our
country, is a strength. And as horrific as this tragedy was, if our diversity becomes a casualty, I think thats worse. Tabassum Zakaria, General Casey: diversity shouldnt be casualty of Fort Hood, Reuters (Nov. 8, 2009), http://blogs.reuters.com/talesfromthetrail/2009/11/08/general-casey-diversity-shouldnt-becasualty-of-fort-hood/. Sorry, General, your business is to kill the enemy, not
to worry about diversity.
7
Those familiar with this history might want to skip this discussion and move
on to Chapter I.
n
Table of Contents
Preface: 1
IntroductionGroup Libel in America:
Cases, Arguments, and Outcomes: 11
I The Argument: 33
II Vulnerability, Security, and Double Standards: 71
III Pornography and Hate Speech as Causes of
Vulnerability: The Slow-Acting Poison Argument: 103
IV State & Society: Private Individuals as
State Officials: 155
V On the Wisdom of Partnering with State Officials
About What We May See, Hear, and Read: 197
VI Waldrons Civility Argument: 213
VII Ending Debate in the Marketplace of Ideas: 231
VIII Hate Speech Versus Good Speech:
Line Drawing and Application Problems: 253
IX Canadas Hate Speech Laws:
Responsibly Administered? 297
X The Slippery Road From Dignity to Offense: 307
XI Hate Speech and Pornography as
World Defining Activities: 345
Conclusion: 369
Introduction
Group Libel in America:
the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressionsrapes, robberies, knives, guns and marijuana of the negro, surely will.9 Beauharnais was charged with violating the
statute and defended his actions by citing the Fourteenth
Amendments guarantees of the liberty of speech and of the
press and that the statute was too vague to support convic10
tion. Citing the language of Terminie!o v. Chicago, his free
speech and press defense argued that the leaflet was not
likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.11 The trial court rejected this defense as inapposite, convicted him as charged, and fined him $200.
In a 5-4 ruling, the SCOTUS, behind Justice Felix
Frankfurter, armed Beauharnais conviction, and adopting
a rational basis standard of review, held that Illinois history of racial antagonism could certainly justify the statute,
saying that, in any case, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it
is not unrelated to the problem and not forbidden by some
12
explicit limitation on the states power.
Having granted Illinois right to choose its particular
remedies for racial conflict, Frankfurter turned to the question of libel itself saying that the libel of individuals has never
been thought to raise free speech problems; indeed, he said,
9
Id. at 252.
10
337 U. S. 1, 4 (1949).
11
12
Id. at 261-62.
12
all 48 states have laws protecting against such libels. But individual libel was not at issue in this casegroup libel was
and the question was whether it is consistent with freedom
of speech to criminalize libelous utterances directed at large
13
groups of people flagrantly disseminated.
Following Chaplinsky v. New Hampshires14 ruling that
libel was not protected by the First Amendment, Frankfurter
saw no problem concluding that since group libel was but a
species of libel, it was unprotected expression. And because
it was not protected by the First Amendment, group libel
was also not subject to the clear and present danger test.15
However, it was in his attempt to assimilate group libel to
the libel of individuals that Frankfurter made, perhaps, his
most important and lasting intellectual contribution to the
group libel argument.
No one will gainsay, he said, that it is libelous
falsely to charge another with being a rapist, robber, carrier
16
of knives and guns and user of marijuana, but can the same
be said to hold for collective entities? Drawing a connection
13
14
315 U. S. 568 (1942). There are certain well-defined and narrow limited classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or fighting wordsthose which, by
their very utterance, inflict injury or tend to incite an immediate breach of the
peace. Id. at 571-72.
15
16
Id. at 258.
13
between individuals and their group memberships, Frankfurter said: Long ago this Court recognized that the economic
rights of an individual may depend for the eectiveness of
their enforcement on rights in the group, even though not
formally corporate, to which he belongs. And so:
It is not within our competence to confirm or
deny claims of social scientists as to the dependence of the individual on the position of his racial
or religious group in the community. It would,
however, be arrant dogmatism, quite outside the
scope of our authority in passing on the powers of
a state, for us to deny that the Illinois Legislature
may warrantably believe that a mans job and his
educational opportunities and the dignity accorded him may depend as much on reputation of
the racial and religious group to which he willy17
nilly belongs, as on his own merits.
On this argument, as the reputation of an ascriptive group
goes, so go the reputation and fortunes of the individual
group member.
Frankfurter dismissed the defenses claims that the
statute was both vague and overbroad and rejected Beauharnais attempt to defend the truth of his allegations saying
that his showings were not as extensive as the defamatory allegations against him; and while the trial court objected to
his attempt to prove his good motives, the attempt was not
18
raised on appeal.
17
Id. at 262-63.
18
14
Id. at 278-79.
20
Id. at 301.
21
Id. at 303.
22
15
Id. at 273.
24
337 U. S. 1, (1949). A function of free speechis to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.
25
16
For example, David Riesman had written three articles in 1942 supporting
the passage of group libel laws but retracted his support for them in 1951, a year
before Beauharnais, arguing that minorities were little served by such laws and,
in fact, were just as likely to be victims of them. In 1978, at the height of the
Skokie controversy, Riesman rejoined the ACLU which, at the time, was defending Frank Collin, head of the American Nazi party which was seeking to
march in full Nazi regalia in the Skokie village square. As well, in 1960, the
American Jewish Congress reversed its past support for group libel laws and
passed a resolution repudiating them. Then, in 1963, the National Jewish Community Advisory Relations Council followed suit dismissing American Nazi
groups as a nuisance and an irritant rather than a threat. Finally, in 1961 Illinois repealed its 1917 group libel statute altogether. Samuel Walker, Hate
Speech: the History of an American Controversy 99-100 (University of
Nebraska Press 1994).
27
17
rights for black Americans. Nevertheless, libel law was a formidable weapon in the arsenal of Southern ocials who were
wont to sue any publication for damages that may criticize its
segregationist policies. Given the importance of freedom of
speech to the desegregationist movement, were these ocials to have succeeded, the elimination of segregated facilities in the Southern states would likely have been set back
years. However, in 1964, the SCOTUS struck down an Alabama statute punishing libelous statements targeting public
ocials, saying in the process that debate on public issues
28
should be uninhibited, robust and wide-open.
Libel laws were but one way Southern states attempted to protect their segregationist policies from attacks
by civil rights groups; there were other methods as well. One
was by compelling the disclosure of membership lists of targeted organizations. However, an early precedent involving
the Ku Klux Klan posed an obstacle to the National Association for the Advancement of Colored People (NAACP)
pressing the argument against compelled disclosure. In 1928
the SCOTUS upheld a New York state law requiring corporations (other than labor unions or benevolent orders) with
twenty or more members and requiring an oath to join, to file
with the secretary of state, among other things, a roster of
its membership and a list of its ocers for the current
year.29 The statute was little more than a thinly disguised attempt to intimidate potential Klan members into thinking
twice before joining. Bryant, the relator in the case, attempted to defend by claiming he was denied equal protection because the statute unconstitutionally discriminated be-
28
29
tween the Klan and other groups, such as labor unions, Masons, Odd Fellows, etc., which also required oaths for membership. The dierent classifications were justified, said the
Court, by the dierence between the organizations shown
by experience. The dierence consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its purposes and membership a cloak for acts and
conduct inimical to personal rights and public welfare, and
(b) in the absence of such a tendency on the part of the other
class.30 Bryants decision in 1928 upholding the right of legislators to require publication of the Klans membership lists
might have created a serious problem for civil rights organizations in the 1950s and 60s when the ox to be gored was not
the Klan, but the NAACP. But such was not to be.
Because of its civil rights activities, the NAACP was
the organization most feared and hated by Southern segregationists. Thus, following the example of Bryant, some Southern states attempted to frighten and intimidate Blacks by
compelling public disclosure of the NAACPs membership
lists;31 others attempted to achieve the same ends, by compelling public school teachers publicly to disclose the various
30
Id. at 74.
31
NAACP v. Alabama, 357 U. S. 449; 1958; Bates v. Little Rock 361 U. S. 516
(1960); Gibson v. Florida Legislative Investigating Committee 372 U. S. 539
(1963). In the Alabama case, the Court disposed of the Bryant precedent by distinguishing it along two lines: first that Bryant was decided on the basis of the
particular character of the Klans activities, involving acts of unlawful intimidation and violence; and second, that the Klan made no effort to comply with
19
32
33
34
See, e.g., Edwards v. South Carolina 372 U. S. 229 (1963); Cox v. Louisiana
379 U. S. 559 (1965); Brown v. Louisiana 383 U. S. 131 (1966); Adderley v. Florida 385 U. S. 39 (1966); Shuttlesworth v. City of Birmingham 394 U. S. 147
(1969); Gregory v. Chicago 394 U. S. 111 (1969).
35
21
36
37
Id. at 1204.
22
38
See, e.g., the model speech code offered by Thomas Grey, Civil Rights vs. Civil
Liberties: The Case of Discriminatory Harassment, Soc. Phil. & Poly. 8, 81
(1991).
39
Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets,
and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 181, 143, 144 (1982) [hereinafter Words that Wound].
41
42
If He Hollers Let Him Go: Regulating Hate Speech on Campus, Duke L. J., 431,
463-64 (1990) [hereinafter If He Hollers Let Him Go].
24
Beauharnais, 343 U. S.
45
Doe v. University of Michigan 721 F. Supp. 852 (E.D. Mich. 1989); UWM
Post v. Bd. Of Regents of the University of Wisconsin 774 F. Supp. 1163 (E.D.
Wis. 1991).
25
FIREFoundation for Individual Rights in Education, Speech Code Reports available at https://www.thefire.org/spotlight/reports/.
26
48
Greg Lukianoff, New Report: The Push Against Campus Speakers Is Getting
More Intense, Huffington Post (May 30, 2014), http://www.huffingtonpost.com/greg-lukianoff/new-report-the-push-again_b_5417664.html.
49
ments of each persons status, dignity and reputation as a citizen or member of society in good standingparticularly
against attacks based upon the characteristics of some particular social group. (46-47) With this end in mind, The Harm
in Hate Speech seeks to resurrect from its Illinois graveyard
the long slumberingand now discrediteddoctrine of
group libel.
I begin in Chapter I by delineating in some depth
Waldrons overall argument. I do so to give the reader unfamiliar with his book the essentials of his argument along with
the connections he makes between its various parts. Chapter
II considers Waldrons use of the term vulnerable minorities to describe the targets of the speech he would suppress.
Here I argue that the minorities he would protect are nowhere near as helpless and as vulnerable as his argument
would suggest. I also argue that the list of groups he considers vulnerable has no single overarching measure that would
tie them together so the category itself appears arbitrarily
constructed and operationally troubling. Further, I suggest
that his overall argument is based on a double-standard and
has minority pecking-order problems he nowhere addresses.
In short, despite the title of his book, as a double-standard
suppressionist, his concern is not principally with the harm
in hate speech, nor, for that matter, with hate speech itself;
it is with the groups allegedly harmed. Like other doublestandard suppressionists, Waldrons concern is primarily, if
not solely, with the groups he wishes to protect.
Chapter III examines Waldrons reprise of Catharine
MacKinnons claim that pornography is a form of hate
speech against women, and his companion contention, derived from the structure of MacKinnons argument, that hate
speech is the cause of the vulnerability of specific minorities.
I argue that both arguments fail because neither pornography
28
30
n
I
The Argument
How, specifically, do the messages sent by those signs
50
noted earlier defame Muslims? In the first place, Waldron
says, they undermine the public good of inclusiveness that
our society sponsors and that it is committed to by excluding Muslims and other vulnerable minorities from membership. It creates something like an environmental threat to
social peace, a sort of slow-acting poison, accumulating here
and there, word by word, so that eventually it becomes
harder and less natural for even the good-hearted members of
society to play their part in maintaining this public good. (4)
The second way hate speech harms its targets is by
undermining peoples dignity, in other words, their social
standing, the fundamentals of basic reputation that entitle
them to be treated as equals in the ordinary operations of society. The aim of such speech is to compromise the dignity
of those at whom it is targeted, both in their own eyes and in
the eyes of other members of society. (5)
Waldron distinguishes group libelwhich he thinks
must be suppressedfrom seditious libelwhich does not
because the state is strong enough today that it no longer
50
Above at p. 1.
needs protection from the puny denunciations of the citizenry, whereas the same degree of power is not possessed by
vulnerable minorities. (30) Taking issue with Anthony
Lewis who, Waldron thinks, epitomizes the current American approach to hate speech by downplaying its harms, Waldron says that harms to vulnerable minorities caused by hate
speech outweigh any incidental damage to legitimate free expression interests: Can their lives be led, can their children
be brought up, can their hopes be maintained and their worst
fears dispelled, in a social environment polluted by these materials? (33)
In setting out his argument for a criminal libel statute
protecting vulnerable minorities from hate speech directed at them, Waldron attempts to narrow his argument in
two respects. First, by using the term hate in hate speech
he wants us to understand that his statute is not directed at
an emotion or an attitude of the mind as much as an eect
or projected outcome of the speech. His law would not forbid expressions of hatred or extreme dislike simply because
they are hateful or extreme. They are targeted only because
of the damage they are said to bring about in the social
world. Second, his use of the term speech is not generally
meant to include the spoken word. His main focus, he says, is
with public and published expressions rather than, say, verbal
outbursts. The latter can resonate long after the spoken
word has passed away but are not as enduring or dangerous as the published word. What Waldron wants criminalized are attacks on vulnerable minoritiesprinted, published, pasted up, or posted on the Internetexpressions
34
that become a permanent or semipermanent part of the visible environment in which our lives, and the lives of vulnera51
ble minorities, have to be lived. (34, 35, 47)
Why criminal libel? Why not leave group defamation as a matter for civil law? One reason is because of the
danger it might present to public order, for keeping the
peace, avoiding brawls, and so on. But while he thinks the
public order argument is valid, it is not Waldrons main concern, at least not in its clearest and most obvious sense: the
danger of violence. Instead, his argument for criminalizing
group libel is that such statutes
are set up to vindicate public order, not just by
preempting violence, but by upholding against attack a shared sense of the basic elements of each
persons status, dignity, and reputation as a citizen or member of society in good standingparticularly against attacks predicated upon the characteristics of some particular social groupgrouplibel laws aim at protecting the basics of each persons reputation against attempts (for example) to
target all the members of a vulnerable racial or religious group with some imputation of terrible
criminalityan imputation which, if sustained on
51
However, as he later grants, uttered epithets are part of the target of my argument to the extent they convey messages of contempt or subordination
provided they are a permanently damaging and permanently disfiguringfeature of the environment in which people have to live their lives. Waldron at
118. However, it is not clear how, at the time of decision to permit or suppress
any epithet, one would be in any position to determine the required permanence.
35
He seems to be saying here that if an imputation of, say, terrorism were not
sustained on a broad front, the group impugned should not have their citizenship rights questioned. But how broad would that front have to be before
such a measure would become appropriate? For more on the breadth issue, see
Chapter IX.
53
54
36
to point out that the libel is not against the group per se but
against its individual members. Thus, the expression may be
directed against a group (Muslims are terrorists) but the libel is against all members of the group, each of whom is damaged by the expression because it directly impacts the standing and social relations of them all. (55, 57)
So, like some other leftist commentators today,55
56
Waldron believes Beauharnais is (or, at least, should be)
good law, though his argument is directed mainly to showing
why it should be resurrected than in showing that it is still
good law. In any case, he does not believe the decision in
New York Times v. Su!ivan undercuts the reasoning of Beauharnais because the former dealt with the alleged criminal libel of a public ocial who, assuming the burdens of oce,
assumes also the rough and tumble criticism which attaches
to that oce,57 while the Negroes vilified by Beauharnais
55
For example, see Kenneth Lasson, Racial Defamation as Free Speech: Abusing
the First Amendment, 17 Colum. Hum. Rts. L. Rev. 11 (1985). See also Public Response to Racist Speech, supra note 43, at 2348, 2358; If He Hollers Let Him Go, supra note 42, at 463-64.
56
Beauharnais, 343 U. S.
57
376 U. S. 254 (1964). Since Sullivan held that libel was protected by the First
Amendment while Beauharnais, following Chaplinsky, 315 U. S., held it was not,
Sullivan overruled both of the latter on this point. Nevertheless, Waldron is
correct to say that Sullivans on-point reasoning applied only to public officials.
He goes too far when he says: That American Constitutional lawyers today
overwhelmingly believe that Sullivan in fact renders Beauharnais no longer
good law is an instance of carelessness that is really the product of nothing
more than scholarly wishful thinking. Waldron at 63. However, that part of
37
R v Keegstra, [1990] 3 SCR 697 at 714, [1990] SCJ No 131 [Keegstra]. Hereinafter, all citations and references to Canadian jurisprudence will comply with
th
McGill Law Journal Canadian Guide to Uniform Legal Citation, 8 Edition.
59
Waldron never says what he means by equal citizenship, but the term is not
self-explanatory. As I read it, for Waldron, the term citizen is to be taken
loosely to apply to resident aliens and illegal immigrants as well as citizens. If so,
is he saying that the two former should be considered as having the exact same
38
Quoting John Rawls, Political Liberalism 35, 43-46 (Columbia University Press 1993). As Rodney Dangerfield said to Dr. Barbay, the economics professor in Back to School, a society of such agreement could only exist in Fantasyland. (MGM Studios, 1986)
61
Who says it should? Moreover, just as a matter of fact, the Nazis never did
march in Skokie so we dont know what that would sound like.
62
Referencing Only Words, supra note 39. Notice, Waldron never says what a
well-ordered society should sound like.
40
41
Following Rawls, Waldron also says that Religions that demand the suppression of other religions, that insist upon constitutional establishment, or that demand the adoption of a certain comprehensive conception of the good by the
whole society are inconsistent with a well-ordered society. Unless such religions have died out Rawls says, the society cannot be well-ordered. Islam is
certainly an example of an intolerant religion, and if what he says about the
bigots and the racists, namely, that they will not die out on their own but must
be coerced out of existence, then, one would think, the same would be true of
Islamviz., that Islam has no place in a well-ordered society and must be prohibited by law. This is obviously not Waldrons conclusion, but it is not clear
why the bigots and racists argument wouldnt apply?
64
Is it all a matter of appearance and perception? Or does reality enter into the
picture as well? If reality does enter into the picture, then it seems clear that no
42
43
have an elementary entitlement to justice, and that all deserve protection from the most egregious forms of violence,
exclusion, indignity, and subordination. On this measure, it
would seem obvious that no society in the real world has
ever been well-ordered, and it seems very likely that unless
human beings change their natures rather dramatically, no
such society could ever exist.65 Nevertheless, Waldron asks
us to imagine a society on the way to becoming well-ordered, and to imagine ways in which these basic assurances
are given. Minorities are secure when they can rely on a
widespread acceptance on the part of fellow members of
the fundamentals of justiceIn a well-ordered society, where
people are visibly impressed by signs of one anothers commitment to justice, everyone can enjoy a certain assurance as
they go about their daily business. And when they leave
home in the morning, they can count on not being discriminated against or humiliated or terrorized. (82-84)66
65
C. Edwin Baker suggests that [a] well-ordered Potemkin Village is probably the best example of Waldrons political aesthetics but it guarantees nothing about what the society is like other than, if coercive laws were necessary to
create the appearance, that the society is not free. Hate Speech, in The Content and Context of Hate Speech: Rethinking Regulation and Responses 62 (Michael Herz & Peter Molnar eds., 2012) [hereinafter Hate
Speech].
66
Here Waldron quotes the pluralitys claims in Keegstra, supra note 58, at 74647, that the derision, hostility and abuse encouraged by hate propagandahave a severely negative impact on the individuals sense of self-worth
and acceptance which, in turn, may lead them to avoid activities which bring
them into contact with non-group members or [adopt] attitudes and postures
directed towards blending in with the majority.
44
68
Waldrons phrase a 9/11 type attack suggests, to me, that he does not think
that the real 9/11 attack was in any way devastating to the collective American
psyche such that it might have been reasonable to be suspicious of all Muslims.
Many of the Muslim terrorists who hijacked the planes were living undercover
in the United States for a relatively long period of time. That the hijackers
blended in with ordinary non-Muslim Americans and went unnoticed meant,
45
to many Americans, that it was reasonable to suspect all Muslims. Nor did it
help matters when directly after the attacks Muslims were seen dancing in the
streets in Palestine and elsewhere, and many American Muslims were eerily silent as to what they thought about the attacks. Why might it be reasonable to
suspect all Muslims? Because, given that all of the hijackers were Muslim terrorists living undercover, a person may have no clear idea which Muslims might
be terrorists in hiding and which might not. As Hobbes put the point in another context: For though the wicked were fewer than the righteous, yet because we cannot distinguish them, there is a necessity of suspecting, heeding,
anticipating, subjugating, self-defending, ever incident to the most honest and
fairest conditioned. Thomas Hobbes, The English Works of Thomas
Hobbes of Malmesbury vol II xvi (Sir William Molesworth ed., 1841).
Hobbes advice is followed by mothers every time they caution their children
not to talk to or go with strangers.
69
46
One could read those signs and decals the way Waldron says but why should
one? Why assume that their presence was a sign of fear rather than pride or
patriotism, or that their absence would make other Muslim cabbies targets for
violence? Why might they not, on the contrary, signify their hostility to Jihadism? Absent any empirical evidence to the contrary (and Waldron can offer
no such evidence to support his hypotheticals outcome), why assume the
worst? Why assume that Muslims who see these signs automatically cower in
fear lest they, perhaps, be beaten, overrun, and murdered by a hoard of, presumably, clean-cut, redneck, right-wing, Christian businessmen?
47
Waldrons zero-sum, either-or, option rules out a third option, namely, permitting the speech and upholding the public goods he identifies. He assumes
that simply to permit the signs is to promote the hate speakers agenda as well
as lose the war. For criticism of this assumption, see Chapter IV, Section C.
48
It is almost as if Waldron has never heard of Samizdat, or, for that matter the
Internet, both of which allowedand still allowpeople to publish material
that governments do not wish published; Soviet and East European governments representing the former group of suppressionists and the Chinese,
North Korean and Cuban governments today representing the latter. Moreover, even if successful, driving something underground might well accomplish
the reverse of what suppressionists wish. People may begin to wonder whether
what is being suppressed is something they might want to see and wonder why
their government is trying to keep it from them. They might become infuriated
and more disposed to carry out violent acts. In this vein, see Timothy Garton
Ash on people leading double lives in Eastern Europe under communism, when
people would say one thing in public and another in private where what is said
in private is what they really think. The Uses of Adversity: Essays on the
Fate of Central Europe (Random House 1989). Moreover, as James Weinstein also notes, what suppressionists do not generally consider is the extent to
which the public expression of explicit racist ideas, as opposed to private racist
sentiments passed from parent to child or subtle racist images prevalent in the
popular media, contributes to the perpetuation of racist beliefs. Private methods of expression may well be a much more effective way to communicate such
beliefs than public expressions largely because they are beyond the laws
reach. Hate Speech, Pornography, and the Radical Attack on Free
Speech Doctrine 129-30 (Westview Press 1999).
49
The point is to stop these messages from taking a publicly visible or audible
formto stop them from becoming part of the landscape, part of the evident
stock of a peoples ideas circulating in a society and looming over the environment in which people live their lives. Waldron at 149.
74
Apparently, winning the hate speech debate is the reason for opposing hate
speech laws.
53
of society, he says, we distinguish between the respect accorded to a citizen and the disagreement we might have concerning his or her social and political positions. To prove
this, he cites his belief that while the views of many members of the Republican Tea Party right are preposterous and
(if they ever were put into practice) socially dangerous;76 Tea
Party members are nevertheless entitled to stand for oce,
to vote, and to have their votes counted. Meanwhile, attacking or ridiculing their beliefs is business-as-usual, but it
would be inconsistent with the respect demanded by their
status as citizens to publish a claim, for example, that Tea
Party politicians cannot be trusted with public funds or that
they are dishonest. Its a line we draw all the time in democratic politics, and there seems no reason why it should not
be drawn also in the context of religious life. (120-121)77
76
Waldron presents no evidence for this flat assertion. For an argument that
Tea Party members have higher education and income levels than the general
population and may also have slightly higher levels of political knowledge as
well, see Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105
Nw. U. L. Rev. (Colloquy) 300, 306 (2011) available at http://ssrn.com/abstract=1853645. For an argument that they have a superior grasp of science than
those politicos who do not identify as Tea Party members, see Tal Kopan, Eureka! Tea partiers know science, Politico (Oct. 17, 2013), http://www.politico.com/story/2013/10/tea-party-science-98488.html; and Dan Kahan, Some
data on education, religiosity, ideology, and science comprehension, The Cultural
Cognition Project at Yale Law School (Oct. 15, 2013), http://www.culturalcognition.net/blog/2013/10/15/some-data-on-education-religiosity-ideology-and-science-comp.html.
77
54
56
If I identify my self with my beliefs, then criticisms of them will seem like an
assault on me. Waldron at 135. Not only religion is implicated in this dilemma, for the same can be said of sexual orientation, race as well as any other
category of person that links their identity to the groups to which he, she, or
ze belongs. To take just one example, the very identities of many homosexuals are inextricably bound to their specific sexual practices. They are what
make them homosexuals. An attack on their sexual practices is, thus, also an attack on who they think they are.
57
Apparently, Waldron does not believe that a speakers audience has any free
speech rights. In any case, nothing he says indicates he thinks they have any
such auditory rights, or, for that matter, any dignity interests that may be tied
up with them.
81
[W]e want to catch only hate speech that is expressed in an abusive, insulting, or threatening way. Waldron at 151.
83
Taking issue with the content-context distinction in U. S. free speech doctrine, Waldron renders Holmes famous example in Schenck as the shouting
of Fire! in a crowded theater. Waldron at 151. Of course, Holmes added the
word falsely which Waldron omits but which makes all the difference, for
there would be no culpability if the shout of fire was factual rather than fictitious and deceitful. Moreover, the falsity of the shout is neither part of the content of the expression nor its context, only the grounds for its culpability; for
60
whether the shout were of fact or fiction, the effect (panic) would be the same.
Because it would be, the distinction Waldron draws between content and noncontent based statutes is not aided by the Holmes example. It is, therefore, not
because of the effect of the expression that the shout of fire may be criminalized; it is because it is false and deceitful in dangerous circumstances. The same
is not true of group defamation statutes (Waldrons included) which criminalize expression without regard to any context of imminent danger.
85
If the worry is that one can never be sure the heritage of hate and conflict is
really over, then one can also never be rid of hate speech laws because there is
no existing society which does not have such a past. Thus, even the absolutely,
perfectly, immaculately well-vacuumed society will still need group libel laws
to sanitize the language.
61
ate the acceptance of truth and foster the eventual emergence of attitudes of mutual respect. (155)86 In fact, he
thinks that none of the content-neutral non-state interventionist remedies oered by American commentators are sufficient to deal with the problem of hate speech; in the end,
he says, theyre nothing more than platitudes.
Nor are the harms created by suppressing hate speech
greater and more important than those associated with its
tolerance. If one takes the dignitary harms caused by hate
speech seriously, then the irritation and annoyance of having to replace a threatening, abusive, and insulting form of
racist speech with some more moderate expression of ones
social antipathies would seem quite milda slight loss of
freedom is justified by the prospect of preventing real harm
to other people. Waldron sees two possible objections to
this thesis. One would be that the damage done to a speaker
by hate speech regulation is immediate, whereas the damage
accruing from hate speech is more a matter of long-term causality (and is, in any case, controversial). The other is oered
by C. Edwin Baker, namely, that free speech has a special
kind of importance for individuals that at least matches the dignitary harm that hate speech regulations try to prevent.
(160)87
86
The fact that only Milton was so nave to believe truth would win out in any
struggle with falsity seems to have escaped Waldron. Holmes, certainly, betrayed no such superstition.
87
62
con of light for them. His intentions are to construct an alternative public good, and to build solidarity among likeminded people. Cheer up! he says, and by saying this, he
not only is disclosing who he is, he is also by the mere fact of
his public presence signaling to others that they are not alone
in their antagonisms. (167)
Again, Waldrons concern with public order is not
with the possibility of a hate speaker inciting a mob to act;
nor, apparently, is it about developing racists; it is about the
undermining of a public good, and this is constituted by the
speech act itself, irrespective of whether other racists are influenced by it.88
Waldron has some fun misinterpreting Bakers claim
that words do not cause reactions without the aid of mental
intermediation, and that [t]he hearer must determine a response.89 Bakers point is that dierent minority group
members will react to hate speech in dierent ways ranging
from demoralization to defiance. Waldron agrees but says
that minority group members should not be forced
to laboriously conjure up the courage to go out
and try to flourish in what is now presented to
them as a partially hostile environment. To the
88
This last claim is puzzling since Waldrons racist or Islamophobe is also said
to be interested in developing more people like him. Indeed, thats what his
comforting message to those holding similar views is intended to do.
89
He interprets it to mean that people can choose to hear what they hear: I
suppose Baker is right that hearers could choose to hear [all blacks should be
sent back to Africa] as Blacks are welcome here, and that it is only in the exercise of their autonomy that they do not. But this is silly. Waldron at 170. Indeed, it would be, if that was what Baker was saying, but it wasnt.
64
extent that the message conveyed by the racist already puts them on the defensive, and distracts
them from the ordinary business of life with the
grim determination to try and act like a normal
citizen against all the oddsto that extent, the
racist speech has already succeeded in one of its
destructive aims. (170-71)
Waldron reiterates his preference for ad hoc balancing over
categorization and says that not all hate speech should be
suppressed, but, in so saying, he leaves an enormous amount
of discretion to administrative authorities:
That balance might not require the suppression
of every word or epithet that counts colloquially
as hate speech. It may require us to attend to the
most egregious forms of group libel, particularly
when the threatening or abusive form in which it
is presented makes the destructive intention of
the self-disclosure more or less explicit. And, on
the other hand, it may require us to ensure that
there are legally innocuous modes and forms of
expressionwhere similar views can be aired
(similar values and attitudes disclosed) in ways
that minimize the damage to social values and individual dignity. (171-72)
So the hate speaker is really not silenced; he remains free to
vent his spleen in legally innocuous modes and forms of
expression, though not in the most egregious, abusive, or
destructive ways he would otherwise prefer.
In his penultimate chapter, Waldron takes aim at
Ronald Dworkins claim that the legitimacy of the laws
might be imperiled by the enactment and enforcement of
hate speech laws:
65
91
Of course, MacKinnon and Waldron would go further and claim that pornography and hate speech are discriminatory as such.
92
preferring to stick with the U. S. Constitution as he and others currently interpret it. (180-81) He also argues that
Dworkins alleged upstream/downstream argument proves
too much in that it would apply even to current exceptions
to free speech protections like obscenity, child pornography,
fighting words, individual libel, sedition, and disorderly conduct. Forbidding such expression should aect the legitimacy
of downstream laws just as much as hate speech laws yet
Dworkin ignores this eventuality. Moreover, Waldron says
that Dworkins argument also casts aspersions on downstream laws such as those that would prevent religious discrimination or violence, if there are upstream laws like Britains which ban religious hate speech. (182-185)
Contrary to Dworkin, Waldron thinks most hate
speech laws are legitimate because they restrict only the
most virulent forms of hate speech: most such laws bend
over backwards to ensure that there is a lawful way of expressing something like the propositional content of views
that become objectionable when expressed as vituperation.
They try to define a legitimate mode of roughly equivalent
expression. For example, he says, the U. K.s Public Order
Act of 1986 prohibits written expression only if it is threatening, abusive, or insulting, and only if the intent behind it is to
stir up racial hatred. Moreover, he tells us, Australias Racial Discrimination Act which bans actions that insult, humiliate, or intimidate a group of people because of their race,
color, or national or ethnic origin does not render unlawful
anything said or done reasonably and in good faithin the
course of any statement, publication, discussion or debate
made or held for any genuine academic, artistic or scientific
purpose or any other genuine purpose in the public interest.
(190-91, emphasis in original) Thus, he argues, the more credible the reason for protecting vulnerable minorities from hate
speech, the less credible the complaint against hate speech
laws. While oense is not a legitimate reason for passing hate
68
69
n
II
Vulnerability, Security, and
Double-Standards
A. On Vulnerability and Security
Someone who has a lot of time to waste should do a
word count to ascertain how many times Waldron uses the
term vulnerable minority and its cognates in The Harm in
Hate Speech. I attempted one but gave up as there were way
too many instances for my meager abilities to complete the
task without omitting perhaps twenty or thirty of them.
What is striking, however, is not the mere fact that he deploys such terms so often as to almost dull our sensibilities
altogether as that he does so without ever telling us why any
given minority is vulnerable. Nowhere does he tell us in
what any given minoritys alleged vulnerability consists, or
why women fit the picture of a minority since theyre actually
a majority, or why, in certain contexts, members of majority
groups cant qualify as vulnerable in the exact same sense as
minorities? Instead of focusing on these rather obvious questions, Waldron chooses instead to play one of the Lefts favorite gamesthe Majority oppressor versus Minority oppressed gamein which if you know a priori the racial, religious, or sexual identity of the players then you also know
the teams into which they fit as well as the outcome of the
72
itself ad hoc and, thus, require protected status. But there are
scores of other groups that have vulnerability credentials
that are certainly as good as or better than any of those
listed. The mentally and physically disabled, the very young,
the very old, the disfigured, the homely, the fat, the skinny,
the nave, the depressed, the bankrupt, the very poor, the
very rich, the sick, the diseased, and the terminally ill all
could qualify for vulnerable status just as much or more, depending on the circumstances on the ground, than do the
categories Waldron selects; yet he arbitrarily selects only
those racial, ethnic, religious, sex, and sexual categories that
all good left-wing identity politicians select.
Moreover, even given the exclusive list of groups that
Waldron includes under the vulnerable umbrella, the category itself has no consistent measure, and, therefore, risks
being both over-and underinclusive, and, thus, incoherent
and arbitrary. The list of protected groups Waldron adopts
share nothing in particular which would qualify them to be
considered part of a single category other than their alleged
abstract vulnerability. Is the measure ineluctability? Then
Muslims, religious Jews, Transsexuals, Queers, and Questioners dont fit because their membership is by election rather than ineluctability, and so the measure is underinclusive.
Is the measure income and wealth? Then, generally, Jews,
Asians, Women, Muslims, many LGBTers, Queers, and
Questioners are not necessarily vulnerable as these
groups are as a rule much better o than Blacks or Hispanics.
Here the category is overinclusive. Is the measure color?
Then Women, Jews, LGBTers, Muslims, Queers, and Questioners94 who are white do not qualify for membership while
94
73
74
75
95
Someone might object to my claim of incoherence that the listed groups are
all vulnerable but for different reasons, so that what counts is vulnerability
per se. However, if this is the claim then white males must certainly be considered in the mix depending on the circumstances in which they find themselves.
See, e.g., Beat Whitey night at the Iowa State Fair in 2010; or the same reprised at the Wisconsin State Fair in Milwaukee in 2011. Jonathon M. Seidi,
Report: Black Mobs Attack White Patrons Outside Wis. State Fair, The Blaze
(Aug. 5, 2011), http://www.theblaze.com/stories/2011/08/05/report-blackmobs-attack-white-patrons-outside-wis-state-fair/.
76
Phyllis Chesler & Nathan Bloom, Hindu vs. Muslim Honor Killings, The
Middle East Quarterly (Summer 2012), http://www.meforum.org/3287/hindu-muslim-honor-killings. Add to this list the white and minority shopkeepers in Ferguson, Missouri and Baltimore, Maryland who had
their shops looted and demolished by those seeking racial justice for the Auth
th
gust 9 , 2014 shooting of Michael Brown or the April 19 , 2015 death of Freddie Gray. Riots erupt during Ferguson protests, KSDK (Aug. 18, 2014),
http://www.ksdk.com/story/news/local/2014/08/10/rioting-breaks-out-in-ferguson/13880305/. See Death of Freddie Gray, Wikipedia, https://en.wikipedia.org/wiki/Death_of_Freddie_Gray.
77
nasty racist, sexist, anti-Semitic, homophobic, or Islamophobic signs which either construct the alleged vulnerability or
play on and, thus, reinforce an already existing vulnerable status. He never says which, but it matters greatly whether the
vulnerability is constructed by the hateful signs or is merely
played on by them, or, for that matter, whether these signs
are even a factor at all. He seems simply to assume that there
is some causal connection between the signs and the vulnerability of minorities.97
Whatever the choice, the entire big bad and nasty
racist, sexist, homophobe, Islamophobe narrative is false, at
least insofar as it is intended to describe the American population today. The racist narrative has been and is currently espoused most prominently by leftist academicsMatsuda,
Delgado, and Lawrence III are only the most noteworthy
but also by race hustlers and extortionists like the Reverends Jesse Jackson and Al Sharpton,98 by politicians like Eric
97
98
The role of the Reverends was nicely played out in the Trayvon Martin
saga where they worked their reverential magic to whip up racial hostility to a
level sufficient to maintain their high incomes, all the while ignoring the Blackon-Black violence that their black hostages face in the ghettoes of most major
American cities every day. Jackson has become one of the finest extortionists
on record yet to be imprisoned. For a run-down on his many operations, see
Kenneth R. Timmerman, Shakedown: Exposing the Real Jesse Jackson
(Regnery Publishing 2002). For a consideration of the various others equally
adept at playing race cards to fill their coffers all the while ignoring the interests of their impoverished clientele, see Deneen Borelli, Blacklash: How
Obama and the Left are Driving Americans to the Government
Plantation (Threshold Editions 2012).
78
Holder and Bill De Blasio, and ever since Obamas 2008 campaign was launched, by most mainstream press and television
news presenters and commentators who seem to view their
Jump to August 2014 and the race riot in Ferguson, Missouri over the shooting
death of a Black, Michael Brown, by white police officer Darren Wilson. Here,
once again, Sharpton performed his usual part of well-paid arsonist, this time
sent on his mission by none other than the President of the United States. Pat
Bailey, Sharpton a key adviser to Obama on Ferguson, New York Post (Aug. 22,
2014), http://nypost.com/2014/08/22/sharpton-a-key-advisor-to-obama-onferguson/. Add to this the part played by Obamas chief race detector Attorney General, Eric Holder, who, unsurprisingly, expressed his support not for
justice in the abstract but for justice for the Brown family, all the while bringing with him to Ferguson 40 or so leftist race detectors from his Civil Rights
Division to find that special justice for the Brown family. Matthew Vadum,
Holders Lynch Mob in Ferguson, Front Page Mag (Aug. 21, 2014),
http://www.frontpagemag.com/2014/matthew-vadum/holders-lynch-mob-inferguson/. See also J. Christian Adams, Meet the Radical DOJ Unit Investigating
Ferguson Shooting, PJ Media (Aug. 20, 2014), http://pjmedia.com/jchristianadams/2014/08/20/radical-doj-unit-ferguson/. Oddly enough, after their
truly Herculean efforts to find it, they actually failed. For a useful corrective to
the nonsense that passes for wisdom about racism in Ferguson and who the real
racists are, see Bill Whittle, Ferguson and the Real Race War, Truth Revolt
(Aug. 20, 2014), http://www.truthrevolt.org/videos/bill-whittle-ferguson-andreal-race-war. For another, see the sockdolager launched by David Horowitz
and John Perazzo against the so-called White Privilege argument in favor of
the more realistic but supposedly non-existent privilege given to black thugs.
Black Skin Privilege And Ferguson, Truth Revolt (Nov. 20, 2014),
http://www.truthrevolt.org/commentary/david-horowitzjohn-perazzo-blackskin-privilege-and-ferguson.
79
jobs as protectors of the Obama legacy.99 The narrative is often brought into play whenever anyone says something contrary to the wishes, policies, practices, or interests of the
Obama administration. Nevertheless, mere repetition of the
narrative either by people who have interests in silencing political opponents by charges of racism, or who sympathize
with those who do, certainly doesnt mean that the narrative
is accurate.
While this is no place exhaustively to treat the subject, if the racist narrative had a germ of truth, Barack
Obama never would have had a first, much less a second,
term in oce. And while it is certainly true that isolated acts
of racism are today committed by both Blacks and Whites
with racial violence by Blacks clearly outstripping that of
Whites100the idea that America today is a racist society
given everything that has transpired since the Second World
99
80
War is not only false; its bizarre. In any event, the idea that
anyone caught posting a sign today saying Niggers go
Home, or anything equivalent, would draw upon himself anything other than a wagonload of grief is simply absurd.101
101
Unless, of course, you are white Democratic party activist students, assisted
by spineless college administers protecting them, who post hateful signs denigrating Blacks and Gays, paint swastikas and other racist graffiti, while wearing
KKK-style hoodiesall in order to maliciously communicate a false image of a
racist, etc., college environmentas was done by Oberlin students. Chuck
Ross, Meet the privileged Obama-supporting white kids who perpetrated cruel Oberlin race hoax, The Daily Caller (Aug. 22, 2013), http://dailycaller.com/2013/08/22/meet-the-privileged-obama-supporting-white-kidswho-perpetrated-cruel-oberlin-race-hoax/. See Michelle Malkin, How Oberlin
Manufactured the Hate-Crime Hoax of the Year; Updated, Michelle Malkin
(Aug. 23, 2013), http://michellemalkin.com/2013/08/23/how-oberlin-manufactured-the-hate-crime-hoax-of-the-year/. See also Doug Stanglin & Mary Beth
Marklein, Oberlin sees progress in probe of hate incidents, USA Today (Mar. 5,
2013) http://www.usatoday.com/story/news/nation/2013/03/05/oberlin-college-hate-speech-incidents-kkk/1964381/. Or this at Virginia College: Renee
Nal, Hate crime hoax leads to campus lockdown at Virginia college, eagnews.com
(Sept. 4, 2014) http://eagnews.org/hate-crime-hoax-leads-to-campus-lockdown-at-virginia-college/. Then, of course, there was the Duke lacrosse team
racial hoax signed on to by 88 Duke University professors: Group of 88, Wikipedia, http://en.wikipedia.org/wiki/Group_of_88; the Claremont college race
hoax: Joy Buchanan, Kristina Sauerwein & Stuart Silverstein, Claremont Hate
Crime Called Hoax, Los Angeles Times (Mar. 18, 2004) http://articles.latimes.com/2004/mar/18/local/me-claremont18; and, of course, the very
special Tawana Brawley/Sharpton race hoax. Heres what law professor Patricia Williams had to say about Brawley: she has been the victim of some unspeakable crime. No matter how she got there. No matter who did it to her and
81
That it would have any eect the poster would desire is multiply so.
The same can be said for Waldrons MacKinnonite
view that America is a sexist society because it is supposedly
flooded with pornography and the allegedly brutal treatment
even if she did it to herself (emphasis added).Tawana Brawley rape allegations,
Wikipedia, http://en.wikipedia.org/wiki/Tawana_Brawley_rape_allegations.
Stanley Diamond thought fit to add that In cultural perspective, if not in fact,
it doesnt matter whether the crime occurred or not, because it described
what actually happens to too many black women. Reversing Brawley, The
Nation, Vol. 247, no 12, 1988. The terminal stupidity of these remarks needs
no comment. Nor is there a paucity of fake hate crime reports by Gays and
Lesbians. Daniel Greenfield, Another Day, Another Fake Anti-Gay Hate Crime,
Front Page Mag (Mar. 12, 2014), http://www.frontpagemag.com/2014/dgreenfield/another-day-another-fake-anti-gay-hate-crime/.
Finally[?], there is the rape hoax perpetrated by Sabina Rubin Erdely and assisted by Rolling Stone magazine which led Teresa Sullivan, president of the
University of Virginia, to suspend all fraternities and sororities on campus[!]
and tar the reputation of an alleged assailant. Eric Owens, Here Are EIGHT
Campus Rape Hoaxes Eerily Like The UVA Rape Story, The Daily Caller
(Dec. 14, 2014), http://dailycaller.com/2014/12/14/here-are-eight-campusrape-hoaxes-eerily-like-the-uva-rape-story/. Not to be outdone, Milo Yiannopoulos has uncovered at least 100 hate crime hoaxes from 2007 to 2016.
There Have Been Over 100 Hate Crime Hoaxes In The Past Decade, Breitbart
(May 2, 2016), http://www.breitbart.com/milo/2016/05/02/hate-crimehoaxes-growing-epidemic/. For one criticism of the rape culture nonsense
that has taken hold among some feminists today, see Glen Harlan Reynolds,
The Great Campus Rape Hoax, USA Today (Dec. 15, 2014), http://www.usatoday.com/story/opinion/2014/12/14/campus-rape-uva-crisis-rolling-stone-politics-column/20397277/.
82
The idea propounded by Attorney General Eric Holder that there has been
an anti-Islamic backlash since 9/11 is also a piece of leftist fantasy. FBI hate
crime statistics for 2012 showed that of 1340 victims of religious offenses, Jews
numbered 62.4% of the cases while Muslims numbered just 11.6%, or just 155
individual cases. Jonathan S. Tobin, Holders Post-9/11 Backlash Myth, Commentary (Apr. 29, 2013), http://www.commentarymagazine.com/2013/04/29/eric-holder-post-911-backlash-myth-muslims-boston/.
84
of expression against a thesis that is simply asserted but nowhere proved;103 or for overlooking damage that they believe
is either non-existent or not severe enough to warrant inroads on a fundamental right?104 Is Mr. Liberal supposed
simply to assume the reality of the phantom Waldron conjures up and then waste his energy trying to knock it down,
just in order to show that he is not simply trying to gain
some advantage for his position in the hate speech debate? (116)
One last point in this regard and it is a problem Waldron shares with many other of his fellow leftists. Claims
that America is a racist, sexist, or homophobic society are
rarely, if ever, measured against the records of other societies. However, compared to which country? is surely a
question that should be addressed before any global accusations of racist, etc., are leveled against the United States as
such. Or are we to believe the obvious falsehood that racism,
sexism, homophobia and the like exist only in the United
States and not in the various countries of Europe, Asia, Africa, Australia, and, yes, even New Zealand? In fact, America
103
See, e.g., David Gordon, The Harm in Hate Speech Laws, Mises Institute
(2012) (book review, reviewing Jeremy Waldron, The Harm in Hate
Speech (2012)) at http://mises.org/daily/6070/.
85
today is one of the last countries in the world to be designated as racist, and yet it is the one Waldron seems most eager to condemn.105
Moreover, while I do not think Waldron can substantiate his global claims about the racist, sexist, etc., look of
American society, his abstract discussion about vulnerable
minorities collapses altogether when we localize it. For one
thing, there is what I have elsewhere called the Inter-IntraVictim-Group Vilification problem.106 Discerning the vulnerable party is not an easy matter when, for example, one
105
Instead of comparing the United States to other countries, leftists like Waldron compare it instead to the utopian and non-existent well-ordered society. This permits him to claim that America is flawed not because it is demonstrably worse than any other country (which would be rather difficult to prove)
but because it is not ideal.
106
This is the persistent and touchy problem that arises when one subordinated group inflict[s] racist speech upon another subordinated group, or when
one member of a subordinated group trashes another member of the same
group. Civil Libertarian, supra note 93, at 357, 352-59, quoting Public Response to
Racist Speech, supra note 43. Michael Rosenfeld, a fellow double-standard
speech suppressionist, entirely ignores the inter-intra group vilification problem, and, indeed, thinks that the double-standard actually minimizes any bias
problem caused by speech regulation. Beginning, like Matsuda, from the assumption that racist speech by a member of a historically dominant race
against members of an oppressed race is likely to have a more severe impact
than racist speech by the racially oppressed against their oppressors, he concludes that even if this is thought not to justify selective regulation of hate
speechthe racist speech of a member of an oppressed racial group calls for
greater leniency if it was in response to the racism perpetuated by members
86
Jim Goad, Race and SupremacyThe Problem With Race Wars Among Minorities, Takis Magazine (Feb. 9, 2015), http://takimag.com/article/the_problem_with_race_wars_among_minorities_jim_goad/print%23axzz43qtdapif.
108
And what are we to make of a lesbian feminist police chief and female city
council representatives of a major American city donning the appropriate
headgear on a day declared by Somali staffers to be hijab day? Daniel Greenfield, Minneapolis Lesbian Police Chief Dons Hijab for Hijab Day, Frontpage
Mag (Mar. 14, 2014), http://www.frontpagemag.com/2014/dgreenfield/minneapolis-lesbian-police-chief-dons-hijab-for-hijab-day/. Meanwhile, in Somalia, a gay man was stoned to death in 2013 simply because he was gay. Robert
Spencer, Sharia in action in Somalia: Gay man stoned to death, Jihad Watch
(Mar. 20, 2013), http://www.jihadwatch.org/2013/03/sharia-in-action-in-somalia-gay-man-stoned-to-death.
87
Christian baker who refuses to bake a cake for their wedding? Context would seem to be all important, and if context
is the ultimate determinant, the vulnerability concept itself
is theoretically and practically worthless.
Not to Waldron, however, who simply assumes that
his list of vulnerable groups is in no way controversial, and
that members of such groups are legitimately stipulated vulnerable irrespective of the dierent and various contexts in
which their members may find themselves. However,
whether anyone, majority or minority group member, male or female, who lives in a major urban area today can count on being secure in Waldrons sense of the term, is highly doubtful. Should he, as a representative white male, think his invulnerability privilege assures him the ability to deliberate
what to do in peace, perhaps he should spend a night walking and taking in the warm night air of Watts, Compton, or
anywhere else in South-Central Los Angeles,109 parts of the
south side of Chicago, or just about anywhere in downtown
Detroit. And should he be blessed with a handsome teenaged
daughter, we might wonder how secure he would feel
should she decide to take a midnight stroll, alone or with a
109
88
The Boston brother bombers did not come from vulnerable surroundings.
Tamerlan Tsarnaev was a golden gloves boxer and an accomplished pianist.
Brother Dzhokhar attended Cambridge Rindge and Latin School (the same
school that actor Ben Affleck and other notables attended) and held a
$2,500.00 scholarship from the city of Cambridge. The only real vulnerables
th
in Boston on Apr. 19 were the Bostonians who were either running in or
watching the race in close proximity to the bombs.
111
See, e.g., Horowitz and Perazzo, supra note 98. For an exhaustive rundown on
some of these see Colin Flaherty, White Girl Bleed a Lot: The Return
of Racial Violence to America and How the Media Ignore it (WND
Books 2013) [hereinafter White Girl]. For an update that focuses on the
knockout game, a favorite form of sport where young Black thugs sneak up
89
No signs were needed to inflame the 10 or 12 black racists who beat and
nearly killed white-male truck-driver Steven Utash, who accidentally hit a
young black lad who carelessly stepped in front of his truck and suffered a broken leg. If it wasnt for a retired black nurse, Deborah Hughes, who, packing a
.38 threw her body over Utash, the thugs likely would have killed him. Commenting on the beating, Utashs son Joseph said: You know, its like you go in
Detroit and youre white, you dont belong. Seriously, Ive been pulled over by
the police before and theyre like Get back across 8 Mile, like Im not supposed to be over there, like Im not allowed to go in Detroit. White Man
90
that render the lives of Black and Latino people insecure today have nothing whatever to do with hate propaganda on
the part of members of the White majority; they have to do
with federal and municipal policies designed to keep them
dependent on government for their livelihood as well as
drugs, crime, and violence spawned by out-of-control fatherless Black and Latino teenage gang members preying on each
other as well as on other members of American society, minorities or otherwise.113
Beaten By Mob In Detroit After Hitting Boy With Truck: Was It A Hate Crime?,
CBS Detroit (Apr. 4, 2014), http://detroit.cbslocal.com/2014/04/04/whiteman-beaten-by-mob-in-detroit-after-hitting-boy-with-truck-was-it-a-hatecrime/. Another commentator on the incident hit Waldrons vulnerable argument precisely where it hurts: The fact is, its often hard to be white in
America, too, especially in a struggling city like Detroit. Just ask the Utash
family. Charlie LeDuff, A Beating in Detroit, The New York Times (Apr. 25,
2014), http://www.nytimes.com/2014/04/26/opinion/a-beating-in-detroit.html?_r=1. Indeed, the only signs that mattered in Washington, D.C. for
the black thugs who severely beat a Marine twice honored for bravery in Iraq
were those of the Black Lives Matter crowd. James Wilkinson, Decorated Iraq
vet whose bravery was immortalized in a statue 'attacked in hate crime': Marine says
he was beaten and robbed by teens who asked him if 'black lives matter' as he ate in
McDonalds, The Daily Mail (Feb. 16, 2016), http://www.dailymail.co.uk/news/article-3450254/Decorated-Iraq-vet-bravery-inspired-statues-says-beaten-teens-asked-black-lives-matter.html.
113
For a useful corrective to Waldrons vulnerable because of white racism argument, see Thomas Sowell, Intellectuals and Race (Basic Books 2013)
[hereinafter Sowell]. See also Theodore Dalrymple, Life at the Bottom:
The Worldview That Makes the Underclass (Rowman & Littlefield
2001).
91
In fact, the way Waldron deploys the term vulnerable renders it entirely meaningless and, thus, useless, because it omits the very information we need to determine
whether, and to what degree if any, individual members of
any particular group at any particular time or place actually
fit the description. For example, he asks us to believe that
that the father of a Muslim family out for a walk on a city
street in New Jersey encountering signs that say Muslims
and 9/11! Dont serve them, dont speak to them, and dont
let them in is terrified that his family is in danger; but he
doesnt tell us where in New Jersey he is walking. The Third
Precinct of Newark, perhaps? But if so, one might well think
the person(s) who posted the alleged signs should feel more
vulnerable (and probably would) than any Muslim, for the
simple reason that Muslims currently constitute a majority or
a strong minority in all sectors of that Precinct.114 The same
might be true of areas in Dearborn, Michigan today, or for
anyonemajority or minority group membersin the innercircles of many American cities. Vulnerability is, thus, relative to specific persons and contexts as well as specific timeframes.115
Finally, the idea that Blacks, Muslims, Hispanics,
Jews, women, LGBTers, etc., are completely vulnerable to
114
Hippies were a vulnerable minority in parts of the deep South in the 1960s,
but certainly not now. Belgians are now vulnerable in Belgium whereas they
werent in 1958. See Brussels attacks: Two brothers behind Belgium bombings, BBC
(Mar. 23, 2016), http://www.bbc.com/news/world-europe-35879141.
92
In his response to Waldrons contention that it is silly to treat groups of private figures similarly to individual public figures, Justice John Paul Stevens
notes that groups, like public figures, are better able to make effective responses to unfair charges than the average private citizen. Groups may aggregate their resources for response and take advantage of the greater credence
the public may afford to their shared, rather than individual, view. Stevens, supra note 3.
93
117
The 2013 Duck Dynasty crisis comes to mind here where the tolerant
PC thugs from GLADD demanded the Arts & Entertainment television network suspend Phil Robertson (the Dynastys Patriarch) for saying in an interview with GQ magazine that homosexuals, like adulterers, drunkards, slanderers, etc., wont get into heaven, and that he prefers a womans vagina to a
mans anus. According to the thugs, their efforts to silence him raised no free
speech issues; they just didnt believe that people like Robertson should be allowed to voice such intolerant sentiments! Tony Lee, A&E Executives Suspended Duck Dynasty Patriarch After Call With GLAAD, Breitbart (Dec. 19,
2013), http://www.breitbart.com/Big-Hollywood/2013/12/19/A-E-ExecutivesSuspended-Duck-Dynasty-Patriarch-After-Call-with-GLAAD. See also John
OSullivan, The New Blacklist, National Review (Dec. 23, 2013),
http://www.nationalreview.com/article/367007/new-blacklist-john-osullivan.
94
signage that, apparently, get a pass under Waldrons group libel statute: Exterminate those who slander Islam! Behead
those who insult Islam! Europe you will pay. Your 9/11 is on
its way! Kill the Jews! Jews are descendants of apes, pigs,
and monkeys!118 Here, as well, is some love expressed to
Whitey by a black thug: Exterminate white people; 90%
of white ppl are nasty. #Hate them!119 In the meantime signs
such as those of Pamela Gellers American Freedom Defense
Initiative posted in the New York subways which readIn
any war between the civilized man and the savage, support
the civilized man. Support Israel. Defeat Jihad.would arguably be prohibited as threatening, abusive, and insulting.120
118
London protestors: Behead those who insult prophet, The Daily Mail (Feb. 3,
2006), http://www.dailymail.co.uk/news/article-376088/London-protestersBehead-insult-prophet.html. See Brett M. Christensen, Muslim Protest PhotographsPictures From London, Hoax Slayer (Mar. 13, 2010),
http://www.hoax-slayer.com/muslim-protest-london.shtml. See also palwatch,
Allah describes Jews as apes and pigs, in sermon broadcast on PA TV, YouTube
(May 24, 2012), http://www.youtube.com/watch?v=FTLayc8zUc8.
119
Exterminate White People Ripped as Black Hate Speech, World Net Daily
(Oct. 23, 2005), http://www.wnd.com/2005/10/33003/. See Sam Landy, Chilling
911 call details final moments of Melbourne baseballer Chris Lanes life, The Advertiser (Aug. 22, 2013), http://www.adelaidenow.com.au/news/national/chilling-911-call-details-final-moments-of-melbourne-baseballer-chrislane8217s-life/story-fnii5smq-1226700172461.
120
See, e.g., item 16 on the list of hateful expressions in Chapter VIII at pp. 25556. Cal. State San Bernardino professor and Director of the Center for the
Study of Hate and Extremism, Brian Levin, has already labeled Geller an Islamophobe. Jeff Poor, Bill Maher: Comparing violence of Islam to Christianity
95
Like so many on the Left, nowhere does Waldron say anything that would indicate he is not the double-standard
suppressionist that he is.121
Double-standard speech suppressionists have clear
priorities, but these priorities are hidden behind a
smokescreen of harm. For while they say they are focused on
the harm they think hate speech causes, their real focus is
generally on the group allegedly harmed.122 Thus, they privilege the speech of putative oppressed minorities against
their white male oppressors. This double-standard strand
of suppressionist argument has a surprisingly large123 number
of adherents among those who consider themselves egalitarians. The argument was perhaps most bluntly formulated by
Stanford law professor Thomas Grey, one of the authors of a
liberal bullsh*t, Daily Caller (Apr. 20, 2013), http://dailycaller.com/2013/04/20/bill-maher-violence-islam-christianity-liberal-bullshit/.
121
Waldron does say: The fact that contempt, derision, and obloquy are directed at a minority group X by members of another minority group, Y, does
not mean we should not be concerned about the defamation of X. Defamation
by a minority against a minority may constitute the same sort of obstacle to
free, ordered life in a metropolitan, polyglot community as defamation by
members of the dominant majority against a minority group. Waldron at 50.
122
Surprisingly because such commentators almost always advance their arguments posing as liberal or radical egalitarians.
96
campus hate speech code adopted by Stanford and later overturned by the courts. According to Grey, the proposed code
would not impugn insults leveled by minorities against white
males: the Stanford regulation would prevent me [a white
male] from firing my most powerful verbal assault weapons
across racial, sexual, or sexual preference lines. By contrast,
people of color, women, and gays and lesbians can use all the
words they have at their disposal against me.124 This doublestandard argument exhibits a rhetorical posture which is the
exact reverse of its logical structure, for it is one that subordinates concern about any alleged harm both to the interests
of the groups allegedly harmed, and to the speech that allegedly harms them.
For example, lets say that our concern is, as Waldron
believes, with the insecure social status of minorities. Obvious questions arise, one of which, for example, is why only
minorities? As I have just argued, members of majority
groups can be every bit as insecure about their security and
safety under certain conditions as minorities; so why not ex124
97
hibit concern about their social security? Logically, if the concern is with equal citizenship, then in a society that values
equal concern and respect for all, everyone whose security is
aected should be a subject of concern not just preferred segments of the population. Moreover, if our concern is with
the harmthe undermining and subversion of the social
good of equal citizenshipthen anything which produces it
should be the focus of our attention, not just hate speech.
The focus of double-standard suppressionists, like
Waldron, however, is only with hate speech or pornography
as possible causes. Any other possible cause, if it is even considered, is definitely secondary, no matter whether, as a matter of empirical fact, it is causally primary. Again, what activates double-standard suppressionists is not primarily the
harm, for if it were, then anyone harmed (majority or minority group member) would be cause for concern. Nor do such
suppressionists worry unduly about expressive causes other
than hate speech or pornography much less about any nonexpressive cause. Finally, if neither the harm itself nor any
non-expressive cause is the focus of the double-standard argument, neither is any group of concern that is not considered oppressed, marginal, or vulnerable.125 In doublestandard suppressionist thinking, the group is the primary
consideration, the cause is secondary, and the harm allegedly
caused is tertiary; exactly the opposite of what it should be to
anyone concerned with equal citizenship. That Waldron subscribes to this order of priorities is likely why he shows little
or no concern with the possibility of harm to any group he
doesnt arbitrarily label vulnerable.
125
And, as noted earlier, the list of those considered vulnerable is highly selective, has no consistent measure, and is, also analytically incoherent. In fact, the
concept vulnerability is little more than a politically useful, though empty analytical, abstraction. See Chapter II, Section A.
98
As have various commentators who actually believe they are acting in a way
consistent with science. See Flew, infra note 301.
127
99
100
n
III
Pornography and Hate Speech
as the Cause of Vulnerability:
The Slow-Acting Poison Argument
A. Pornography
Placing concern for the allegedly vulnerable group before the harm supposedly inflicted on it permits doublestandard speech suppressionists to disregard harms to members of majority groups, or even to members of, apparently,
non-vulnerable minority groups. Moreover, single-mindedly
focusing on hate speech or pornography as causes of these
harms distracts suppressionists from other, certainly more
plausible, causes of the alleged harms. Nowhere is this better
illustrated than in one of Waldrons paeans to Catharine
MacKinnon. Indeed, the end results of both Waldrons and
MacKinnons contentions are the same: they take the eect
for the cause, assigning pornography and hate speech causal
rather than the epiphenomenal status they more properly deserve.
Waldron agrees with MacKinnon that
Pornography is not just an image beamed by a sort of
pimp machine directly into the mind of a masturbator. It is world defining imagery whose highly visible,
128
Waldron says he knows that even though MacKinnon has misgivings about
using the logic of defamation as the whole basis of the case against pornography, he has found [her] insights on the connection between defamation of
women and the indignity and insecurity they face in everyday life hugely helpful in thinking through similar connections in the realm of hate speech. Waldron at 90.
104
105
Waldron at 91 (emphasis in original). Presumably, the street lad pays no attention to his teachers, parents, siblings, other relatives, friends, law officers,
and various others in the superego mix that might suggest something a shade
less disgusting and much more reasonable.
106
Mona Eltahawy, They Died for Lack of a Head Scarf, The Washington
Post Company (Mar. 19, 2002), http://www.library.cornell.edu/colldev/mideast/mutawsc.htm.
133
107
108
135
Strossen, supra note 134, at 246, quoting Only Words, supra note 39, at 37.
136
Strossen, supra note 134, at 265. C. Edwin Baker makes a similar point in
the context of hate speech. Hate Speech, in Hate Speech, supra note 65, at 75.
109
138
Id. at 268, quoting Marcia Pally, Sense and Censorship: The Bonfire
of the Vanities 14 (Americans for Constitutional Freedom & the Freedom
to Read Foundation 1991).
110
Despite the above, Waldron thinks that, contrary to everyone who has attempted it, an argument can be made that
causally connects pornography to violence against women
and he does it by analogy, in one paragraph, and without any
empirical research to support it. He analogizes pornography
and hate speech to automobile emissions! His argument
goes like this: just as it is absurd to argue that I shouldnt be
required to fit an emission-control device to my cars exhaust
pipe unless it could be shown that my PCV-less automobile
causes lead poisoning with direct detriment and imminent
harm to the health of assignable individuals, it is also absurd
to argue that I should not be prevented from publishing one
pornographic magazine or one hateful flyer unless a causal
connection between my magazine or flyer and some specific
instance of sexual or racial violence can be demonstrated.
And the reasons are the same in both cases: tiny impacts of
millions of actionseach inconsiderable in itselfcan produce a large-scale toxic eect that, even at the mass level, operates insidiously as a slow-acting poison, and that [anti-porn
and anti-hate] regulations have to be aimed at individual actions with that scale and that pace in mind. (97)139
139
As David Gordon noted, Waldron seems to assume that only toxic effects
can emerge from the posting of racist, etc., signs, but given that Waldron also
111
112
140
113
114
than that a charge of moral pollution could be used to justify restricting almost any expression the content of which
state ocials disapproved.
If pornography or hate speech were like slow-acting
poisons which work their eects over extended periods of
time, it would be possible to isolate them as causes of whatever damage such poisons eect; but, again, the analogy fails
because they are not like poisons, much less slow acting
poisons.142 The harms to the body caused by arsenic can be,
and have been, demonstrated time and time again by observing how the poison works. Moreover, the ill eects of such
poisoning can be both predicted and explained by medical
doctors who are familiar with its workings on the human
body. The same cannot be said about pornography or hate
speech. Dierent people in dierent contexts react dierently to pornography and hate speech; so do dierent societies.143 In Saudi Arabia, Iran and China, where pornography
is banned and punishments are Draconian, violence and discrimination against women are commonplace. On the other
hand, in Japan, Denmark, and Germany where pornography
is commonplace, discrimination and violence against women
142
Waldron is not alone in his use of the poison metaphor. Fellow speech suppressionist, Alexander Tsesis, writes that the phrase [t]he Jews are our misfortune, uttered by Heinrich von Treitschke, became a painful dart with slowacting poison stuck into the heart of Jews. Destructive Messages: How
Hate Speech Paves the Way for Harmful Social Movements 18 (NYU
Press 2002) [hereinafter Destructive Messages].
143
115
For example, Germany, Sweden, or any other part of Europe the so-called
Syrian migrants have chosen to settle.
146
147
116
117
caused the Holocaust? One might surely make such an argument, but, then again, we might say the same about many
other books that took similar positions at the time; most,
but not all, of them products of Progressive or socialist lineage, and almost all of the writers well-connected into the
upper echelons of academic and intellectual thought in the
United States. Francis A. Walker, for example, a leading
economist of the second half of the nineteenth century, described Indians as savages, who were without forethought
and without self-control, singularly susceptible to evil influences, with strong animal appetites and no intellectual tastes
or aspirations to hold those aspirations in check.150 Richard
T. Ely, a Professor of Economics at the University of Wisconsin and a founder of the American Economics Association, said of Blacks that they are for the most part grownup children and should be treated as such.151 Harvard economist Frank Taussig recommended that alcoholics and those
tainted with hereditary disease, as well as irretrievable
criminals and tramps, be segregated, shut up in refuges
and asylums, [and] prevented from propagating their kind,
should it not be feasible to chloroform them once and for
all.152
150
Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1872 (Washington, GPO 1872) as quoted in Sowell, supra note
113, at 31.
151
118
Of immigrants from eastern and southern Europe, Frank Walker also, said:
[t]hey are beaten men from beaten races; representing the worst failures in the
struggle for existence. Methods of Restricting Immigration,Discussions in
Economics and Statistics, Volume II: Statistics, National Growth, Social Economics,
Davis R. Dewey, ed., (New York, 1899), 430, as quoted in Sowell, supra note
113, at 31. Of the same immigrants decked-out in their finest, Progressive sociologist, Edward A. Ross said: they belong in skins, in wattled huts at the close
of the Great Ice Age. These ox-like men are descendants of those who always
stayed behindTo the practiced eye, the physiognomy of certain groups unmistakably proclaims inferiority of type. E. A. Ross, The Old World in the New:
The Significance of Past and Present Immigration to the American People (New
York, 1914), 285-86, as quoted in Sowell, supra note 113, at 29. See id. at 21-43.
154
119
and they were formative, as well, of racialist views in Germany and elsewhere. Were they to have been banned during
those years, there might have been little discussion of race or
ethnicity and far fewer economists and sociologists. Nevertheless, these books, magazines and other writings can still
be found in libraries, ordered by mail, and accessed over the
Internet. In many cases, the messages of these writings are
far more hateful than Muslims Out! or Niggers Back to
Africa!; and given that the works are more literate as well,
and written by people whose academic, intellectual, and social credentials were of the highest orders, they are certainly
capable of being much more persuasive to anyone mentally
set to receive their messages as gospel than the trashy signs
Waldron frets over.
Should such writings be banned today as libels on
Jews, Poles, Blacks, Indians, or any other identity group under assault as worthy of castration, chloroform, incarceration,
or any other indignity simply because of who they are? Given
the hateful messages contained in them, Waldron should
well be asked, why not? Simply because they are old and
dated cannot be a reason, as old and dated writings became
critically important in the ascendance of the Renaissance and
various other historical periods, and, given his assumption
that old racism dies hard, there is no good reason to think we
(Doubleday 2007). See also Robert Zubrin, Merchants of Despair: Radical Environmentalists, Criminal Pseudo-Scientists, and the Fatal
Cult of Antihumanism 35-92 (Encounter Books 2012) and Thomas C.
Leonard, Illiberal Reformers: Race, Eugenics, & American Economics in the Progressive Era (Princeton University Press 2016). See also Adam
Cohen, Imbeciles: The Supreme Court, American Eugenics, and the
Sterilization of Carrie Buck (Penguin Press 2016).
120
are immune today from regressions of a similar nature. Nevertheless, if we were to ban such works, not only would we
likely not be successful, but we could hardly escape the even
greater dangers brought on by the attempt itself. The way
things are today with the Internet and new technological developments taking place almost daily, one would have to establish an international police force armed with the power
and the ability to snoop which, in order to do the job, would
make the powers given to the NSA look impotent by comparison. And, again, even if we were to pursue such a project,
the fact is that many equally, or even more, plausible reasons
can be oered to explain the insecurities and status anxieties
that vulnerables experience in the United States today.
So what can we conclude about the role of hateful expression in bringing about the kind of damage that Waldron
thinks it both has and can? We can certainly agree that such
expression has played some role in bringing about such harm,
but it is not clear whether we can go much beyond such an
obvious unhelpful generality. For what we need to know besides the obvious, is exactly what role it has played, and under what conditions it has played out badly? For example,
was racism (and, thus, racist expression) historically the cause
or the eect of slavery, or did it have little or no necessary
causal relationship to it at all? While ideologues and historians have entered dierent and conflicting answers to these
questions, the answers really should be obvious. Slavery originally had nothing whatever to do with race but was the result
of conquests, with Greeks enslaving Greeks, Europeans enslaving Europeans, Chinese enslaving Chinese, and Africans
enslaving Africans. Indeed, during the Atlantic slave trade
Muslim pirates transported a million or more Europeans to
the Barbary Coast of North Africaat least twice as many
European slaves as there were African slaves transported to
121
the United States.155 Inca and Aztec civilizations had welldeveloped appetites for slavery in more ways than one. And,
of course, slavery is still common in many parts of the nonWestern world.156 What is unique about the West is that it
was the first civilization to turn against slavery.157
Do the signs cause the harm, or are they simply eects
of a pre-existing condition? If Waldron enlightens us not at
all on the first, he fails to enlighten us on the second of these
questions as well.
C. Interlude: Alexander Tsesis, Charles Lawrence III, and David Matas:
Slow-Acting Hate Speech as the Cause of Holocausts
But Alexander Tsesis, Charles Lawrence III, and David Matas158 try. Were anti-Semitic writings the cause of the
Holocaust? To be sure, hateful signs obviously contributed to
shaping the attitudes, opinions, and prejudices of those Germans and their East Europe subalterns responsible for it, but
155
158
122
can we say, because of this, that they were the cause of the
Holocaust? Tsesis thinks so. His argument is deeply rooted
in history and social psychology but the driving force of both
is racism, and the cause of racism is the many destructive
messages that over the centuries have embedded themselves
into cultures exposed to them. These messages both create,
reinforce, and entrench racial prejudices, and these prejudices eventually come to reside deep into the social psychology of a population aected by them. Like Waldron, Tsesis
believes that these messages percolate throughout populations over long periods of time in much the same way that
slow-acting poisons work their destructive physical resultsin fact, he uses this very term to describe the process.159 Tsesis book is replete with descriptions of the workings of this process. Turn to almost any page and you will
find elaborate descriptions of how these messages insinuate
themselves into the cultural landscape of dierent countries.
Drawing on examples from Martin Luther to Hitler in Germany, the removal of Indians from their tribal lands and racism (along with slavery and segregation) in America, to slavery in contemporary Mauritania, Destructive Messages is overloaded with varied descriptions of one and the same message:
it is that misethnicity160 of one kind or another has buried
159
160
Misethnicity is hatred toward groups because of their racial, historic, cultural, or linguistic characteristics. It is the irrational, unsubstantiated, and unjustified antagonism toward an entire, identifiable ethnic or racial group [and]
entails consistently disapproving, hypercritical, and oft-reiterated generalizations about groups and persons belonging to them. Tsesis says he prefers misethnicity to prejudice, racism, or ethnocentrism because it synthesizes
them and more accurately describes the context of racial and ethnic group animosity. Id. at 81.
123
itself deep into the collective consciousness, sub-consciousness, or unconsciousness of whatever society it is permitted
to insinuate itself; and it will insinuate itself in any society if
authorities permit its free and open expression. Hate speech
laws are, therefore, needed to check it.
Essentially the same argument is proered by Charles
Lawrence III in The Id, the Ego, and Equal Protection: Reckoning
with Unconscious Racism. Like Tsesis, Lawrence is interested
in the way racism insinuates itself in a society, specifically,
American society. And one of the chief problems he sees in
dealing with it is the legal doctrine that it is necessary to
prove a racially discriminatory purpose to challenge a facially neutral law.161 Lawrence, by contrast, favors a disparate
impact standard in such cases, first, because a motive-centered doctrine of racial discrimination places a very heavy,
and often impossible, burden of persuasion on the wrong side
of the dispute; and second, because the injury of racial inequality exists irrespective of the decisionmakers motives.162
The reason a specific intent standard is unwise, Lawrence
says, is because racism is buried so deep in our culture that
we often do not recognize it for what it is. And we fail to recognize it because racism is both a crime and a disease, and
this illness of racism infects almost anyone.163 At the same
time, most of us are unaware of our racism, and how it af-
161
39 Stan. L. Rev. 317, 318 (1987) [hereinafter Ego], citing Washington v. Davis 426 U. S. 229 (1976).
162
163
Id. at 321. To the extent that this cultural belief system has influenced all of
us, we are all racists. Id. at 322.
124
fects our actions because it is not part of our conscious experience: a large part of the behavior that produces racial
discrimination is influenced by unconscious racial motivation.164
Thus, to require proof of conscious or intentional
motivation in racial discrimination cases not only ignores
much of what we understand about how the human mind
works. It also disregards both the irrationality of racism and
the profound eect that the history of American race relations has had on the individual and collective unconsciousness. Stereotypes of Blacks as lazy or unintelligent are ingrained by the media, and an individuals parents, peers, and
authority figures into the cultural unconsciousness where
they become transmitted by tacit understandings.165 To get
at this embedded racism, Lawrence says, we need a new test
to trigger judicial recognition of race-based behavior. He
calls it the cultural meaning test:
This test would thus evaluate governmental conduct to determine whether it conveys a symbolic
message to which the culture attaches racial significance. A finding that the culture thinks of an
allegedly discriminatory governmental action in
racial terms would also constitute a finding regarding the beliefs and motivations of the government actors.166
164
Id. at 322.
165
Id.
166
Id. at 324.
125
167
126
sions, radio programs, jokes, and even in the unintended microscopic168 slights and insults people lay on each other in
everyday life.169 Tsesis, for example, finds the communication
outlets for misethnicity in popular media, jokes, education,
and other modes of daily interactions that legitimize the deliberate maltreatment of minorities. Targeted groups are
stereotyped negatively and the negative images are passed
along from generation to generation.170 Bigots propagate
prejudices for popular consumption through everyday discourses, news items, movies, fables, and books. It is found,
as well, in folk tales, pop fiction, and comic books. Even
some classics are tainted by racism: Dostoyevskys novels,
for example, are spotted by xenophobic and anti-Semitic
Russian nationalism. Anti-Semitism abounds in mediaeval
168
The concept of microscopic racism, sexism, etc., is currently very fashionable. Indeed, there is a website called The Microagressions Project which invites and lists the complaints of people who believe they have been the victims
of unintended but hurtful statements by friends, relatives, co-workers, salespeople, and just about anyone else, as they try to negotiate their everyday
lives in safe and fuzzy spaces. Microaggressions, http://www.microaggressions.com/about/ & http://www.microaggressions.com/. Even encouraging
someone to like the music of The Beatles has been labeled a microaggression.
Katherine Timpf, Professor: Trying to Make Me Like the Beatles Is a Microaggression, National Review (Dec. 29, 2015), http://www.nationalreview.com/article/429052/the-beatles-microagression-professor. For a return to sanity, see
Heather MacDonald, The Microaggression Farce, Autumn 2014,
http://www.city-journal.org/html/microaggression-farce-13679.html.
169
170
127
writings that portray Jews as Christ-killers; or, as in Chaucers Canterbury Tales, as killers of Christian children, or as
ruthless money-grubbers as Shylock in Shakespeares Merchant of Venice, or simply as base and low as exemplified by
Fagin in Dickens Oliver Twist. Moreover, misethnicity can
make people despise themselves and their own: Children
learn negativism toward their own group from media, friends,
and books.171
In a sympathetic review of Tsesis book, W. Bradley
Wendell put his finger on its main shortcoming, and it is one
that applies as well to Lawrences work:
As an optimist, Tsesis believes legal institutions
can be reformed to address the problems of stereotyping, discrimination, ethnocentricity, racial
scapegoating, and intolerance. Because these pathologies have such complex etiologies, however,
an adequate legal response must end up targeting
a vast domain of expression, including childrens
books that play to stereotypes, much of the
Western canon of literature, jokes, and popular
music, movies, and television shows. Because
hardly anyone can claim not to be involved at
some level with the perpetuation of pervasive cultural stereotypes, Tsesis proposal spreads a layer
of blame that is a mile wide and an inch deep. In
moral terms, this diusion of responsibility risks
turning into a process of collective exoneration
for the genuine evils of racism. For, as Hannah
Arendt has argued, where all, or almost all, are
guilty, nobody is.
171
128
The Banality of Evil and the First Amendment, 102 Mich. L. Rev. 1404, 140708 (2004)(notes omitted) (reviewing Alexander Tsesis, Destructive Messages (2002)).
173
The Banality of Evil and the First Amendment, supra note 172, at 1408.
174
Id. at 1409.
129
David Matas, Bloody Words: Hate and Free Speech 6-7 (Bain & Cox
2000). Nowhere does Matas indicate what type of speech qualifies as hate
speech. He does not isolate insults, epithets, or threats, for example, and restrict the term accordingly. In fact, he chooses not to restrict the term to any
category of expression other than the catch-all: the hateful. We can assume,
therefore, that Matas argument is meant to catch any expression he believes is
hateful and directed against some minority group. Indeed, his argument about
the Holocaust demands this interpretation. See Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100.
130
have had the idea of murder in their heads before they carried it out, and, surely, speech hateful of Jews was in some
way or another important to planting that idea. But what
have we learned by these observations? Not that hate speech
is the sole, primary, or even an important cause of the Holocaust only that it was in some way or other directly involved.
In and of itself, hate speech, like pornography, has no
causal powers, so it is not literally true that words built
Auschwitz any more than it is true that pornography subordinates or guns kill people.176 People built Auschwitz using
bricks and mortar. True, many of those behind the construction of the camp were inspired by and instilled with hateful
ideas they previously formed on their own or gleaned either
from books, speeches, and conversations with others, but,
again, it is dicult to say with any degree of certainty which
set of books, speeches, or conversations, or, even, whether
any books, speeches, or conversations were paramount in any
given case.
Moreover, if the Holocaust began with hate speech,
when did it begin? As mentioned earlier, Tsesis takes it all
the way back to Luthers time and Luthers texts.177 Is this
also Matas timeline?178 Perhaps not, but if it is, 400 years is
176
177
178
He appears to have at least a two year time frame in mind in his treatment of
the Rwandan genocide saying that the speech by Leon Mugesera, which he believes was the most significant agent causing the full blown genocide, occurred almost two years before the fact. Matas, supra note 175, at 18-19.
131
an awful long time frame for hate speech to produce its results. If it isnt, we have every right to askas we would
about which speech, say, caused the Russian revolution or
any other world-shattering historical eventexactly which
instances of hate speech caused the Holocaust, when, where,
why, and how? Moreover, what about the many, more plausible, non-expressive candidates for causal consideration that
Matas argument (as well as those of MacKinnon, Tsesis, and
Waldron noted earlier) simply ignores, such as:
the Versailles Treaty, the hyperinflation of the
1920s, the mass carnage and traumatic impact of
Germanys defeat in World War I, the strength
of the Social Democratic Party prior to the Third
Reich, the special role of Austrians in both the
formulation and implementation of the Holocaust, the fear of communism in the wake of the
Russian Revolution, or any number of other social and economic factors that are commonly considered to have contributed to the Holocaust.179
179
Anuj Desai, Attacking Brandenburg with History: Does the Long-Term Harm of
Biased Speech Justify a Criminal Statute Suppressing It?, 55 Fed. Com. L. J. 353,
363-64 (2003). C. Edwin Baker suggests that a causal claim about racist hate
speechat least as a contributing cause within a longer chain of causation
seems intuitively very plausibleOf course, such expression is unlikely to arise
out of nothing. Material conditions and social orientations that are not themselves equivalent to the expression of racism are also likely to be a central part
of the causal chain. The operative question, for Baker, as for Bradley Wendell,
is where in this causal chaina legal order should target its interventions.
Hate Speech, in Hate Speech supra note 65, at 68.
132
True, Matas mentions the internment and deportation of Japanese Canadians and the steadfast Canadian refusal to grant asylum to Jews fleeing the Holocaust as particularly shameful episodes in Canadian history, but he advances
no evidence to show that hate speech was the (or even a) causal factor.
133
Matas, supra note 175, at 22. Catharine MacKinnon makes exactly the same
monocausal error in attributing sexist attitudes and sexually based violence to
pornographic words and images. See, e.g., Only Words, supra note 39. See also
the criticism of MacKinnons epiphenomenal approach by Nadine Strossen in
Strossen, supra note 134, at 265-79.
184
David Kretzmer, Freedom of Speech and Racism, 8 Cardoza L. Rev. 443, 463,
quoting Gordon Allport, The Nature of Prejudice 14 (Addison-Wesley
Pub. Co. 1954).
134
185
Kretzmer, supra note 184, at 463, quoting Allport, supra note 184, at 15. Was
the culprit here antilocution as such? Or was it the fact that the antilocution
at issue was Hitlers? Whatever his view here, Allport concluded that group libel legislation was not an effective remedy against prejudice whereas more
speech was. Kretzmer, supra note 184, at 469.
186
135
nineties.187 Nevertheless, just as has been the case with attempts to demonstrate a causal connection between exposure to violent pornography and sexual violence, no such direct link has been established between hate speech and racial or ethnic genocideat least none that turns out to be
anything other than long-term,188 indirect, and entirely speculative.
To conclude, the argument that the poison of hate
speech slowly working its damaging eects over time is the
sole or primary causal agent behind some of the most horrific
events in history suers from the problem that there are too
many non-speech candidates for the job coupled with the
fact that the likely expressive candidates are a mile wide and
an inch deep, making it impossible to pinpoint them with
any degree of exactness. Despite the uselessness of hate
speech laws when it comes to dealing with deeply rooted rac187
See, e.g., the writings of Matsuda (Public Response to Racist Speech, supra note
43); Lawrence (Ego, supra note 161); and Delgado (Words that Wound, supra
note 40).
188
Note: the United States has never had a federal anti-hate speech law,
though, after World War II a few states enacted group libel statutes (only Massachusetts, Montanas, and Minnesotas are still on the books), and the country
has never fallen prey to cataclysmic violence of the sort found in Europe in the
1930s. Nor was there ever any solid reason to suggest that Canada would fall
prey to such violence. For an expansion of this argument, see my Gitlow Redux,
supra note 186, at 1146-53. See Walker, supra note 26, at 75-100. See also Bill
Kenworthy and Beth Chesterman, Criminal-libel statues, state by state, First
Amendment Center (Aug. 10, 2006), http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state/.
136
ism, to show that they care and that they are doing something, prosecutors often end up targeting poorly educated
and under-resourced folks who are reduced to sending messages either from their parents basements or from a cave of
their own choosingnot exactly the element likely to incite
a Holocaust but certainly an easy target for harassment.189
D. Hate Speech Laws of No Effect When Needed
If we dont know which expressive events, if any,
caused the Holocaust, we know, with certainty, that antihate speech laws were no antidote. Both Imperial and Weimar Germany had anti-hate speech laws which were thoroughly ineective. As the late A. Alan Borovoy has pointed
out:
Remarkably, pre-Hitler Germany had laws very
much like the Canadian anti-hate law. Moreover,
those laws were enforced with some vigor. During
the fifteen years before Hitler came to power,
there were more than two-hundred prosecutions
based on anti-Semitic speech. And, in the opinion
of the leading Jewish organization of that era, no
more than 10 percent of the cases were mishandled by the authorities. As subsequent history so
painfully testifies, this type of legislation proved
ineectual on the one occasion when there was a
real argument for it. Indeed, there is some indication that the Nazis of pre-Hitler Germany
shrewdly exploited their criminal trials in order to
increase the size of their constituency. They used
189
137
190
138
ism, and xenophobia are all alive and wellare certainly consistent with the hypothesis that legislation is not an eective
means to deal with hatred.192 And if we follow Tsesis argument that anti-Semitism was embedded deep within the cultural roots of the German Volk, it is no wonder that a surface
attempt to eliminate it by the use of hate speech laws would
be doomed to failure.
E. Indeed, Some Countries Were Relatively Immune
There are other problems with the slow-acting poison
argument. It seems to require a population already predisposed to its workings and not just because of hate speech.193
Just like the global claim that pornography causes discrimination and violence against women, the idea that hate speech
causes hateful outcomes ignores cross-societal comparisons.
Given that anti-Semitic literature was readily available
throughout the West, and given that various other countries
were inundated with it, in some cases as much or more than
192
Matas argues, with Daniel Goldhagen, that the reason Weimars hate speech
laws failed was because Antisemitism was endemic to Weimar Germany.
Daniel Goldhagen, Hitlers Willing Executioners: Ordinary Germans and the Holocaust 82 (Knopf 1996) as quoted in Matas, supra note
175, at 87. However, like Tsesis, Matas never asks how, if it was so widespread,
hate speech laws would be of any effective use. Moreover, he never even explains why it was so virulent in Germany but not as virulent, or as destructive,
in other countries in Europe which would have had access to many of the same
materials. Nor, for that matter, does he take the argument a step further and
ask what aspects of German experience were responsible for the hate speech in
the first place.
139
194
140
Brandenburg v. Ohio 395 U. S. 444, 447 (1969). Not just the United States
has an imminence requirement, India does as well. According to the Supreme
Court of India, The anticipated danger should not be remote, conjectural or
far-fetched. It should have proximate and direct nexus with the expression.
The expressionshould be intrinsically dangerous to the public interest. In
other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a spark in a powder keg. S. Rangarajan v.
P. J. Ram, (1989) 2 S. C. R. (2) 204, 226 (India). See also Peter Molnar, Towards
Improved Law and Policy on Hate SpeechThe Clear and present Danger Test in
Hungary, in Extreme Speech and Democracy, supra note 87, at 237-64.
141
197
Id.
142
now, nor was it a case which involved any such action attempted or carried out in the immediate past. It was a case
of extreme leftist rhetoric directed mainly to party members
and workers attempting to persuade them of the need to
take direct action at some date in the future, perhaps even
tens of years down the road. So, as far as Gitlow himself
was concerned what was at stake was not a revolution in the
here and now and, thus, there could be no legal basis for any
sanction.
Nevertheless, as Sanford saw it, the danger from Gitlows Manifesto was substantial: utterances advocating the
overthrow of organized government byunlawful means are
so inimical to the general welfare and involve such danger of
substantive evil that they clearly may invoke the states police powers. Such utterances threaten breaches of the peace
and ultimate revolution as their natural and inevitable tendency, and it matters not one whit that these events are both
speculative and remote:
the immediate danger is none the less real and
substantial, because the eect of a given utterance cannot be accurately foreseen. The state
cannot reasonably be required to measure the
danger from every such utterance in the nice balance of a jewelers scale. A single revolutionary
spark may kindle a fire that, smouldering for a
time, may burst into a sweeping and destructive
conflagration. It cannot be said that the state is
acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it
seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the
conflagration. It cannot reasonably be required to
143
198
Id. at 669. See also Frohwerk v. U. S. 249 U. S. 204 (1919), where Holmes
uses the same fire metaphor to discuss the effects of circulating a newspaper: it
is impossible to say that it might not have been found that the circulation of the
paper was in quarters where a little breath would be enough to kindle a flame and
that fact was known and relied upon by those who sent the paper out. Id. at
209 (emphasis added).
144
suicidal to wait until the danger was imminent to institute repressive measures against it. Far better it is to suppress it in
its incipiency.
Waldron has a similar set of speculations though he
repudiates them in some parts of his argument. Here is his
response to Georey Stones rejection of content-based restrictions as betraying a lack of trust on the part of the government that citizens will be able to make wise decisions if
exposed to hateful expressions:
Legislatures that enact such laws are fearful of the
consequences of the reception of this kind of content. They fear that members of vulnerable minorities wi! become convinced that they are not accepted as good-faith participants in social life.
They fear that isolated racists wi! secure a heightened sense of the diusion of their poisonous ideals. And they fear that ordinary people wi! think
and act on the assumption that the place of minority members in ordinary life is up for grabs. (153,
emphasis added)
Everything legislators are said to fear is the consequence of
tolerating hate speech. These consequences, said to be universally bad, all are thought to repose in a future that is given
no temporal boundary. We are not told that these bad consequences are expected to be imminent, just that pro-hate
speech legislators fear that they will occur sometime in the
future. In short, the fear is entirely speculative; there is no suggestion that anything in the here and now necessarily points
in this direction. Its just that permitting hate speech now
might, at some unspecified time in the future, lead to a socially disastrous outcome.
145
146
also, again apparently, are not all that farif they are not already therefrom reprising these awful histories.199 But,
again, nowhere does Waldron point us to a society that has
never had any such conflicts, so on his argument, even the
best of well-ordered societies today would inevitably fall prey
to this defect. Waldron, like Justice Sanford and the Keegstra
plurality, buys wholesale into the argument from bad tendency.
H. The Bad Tendencies of Bad Tendency
One of the problems200 with the bad tendency rationale is that, just as Waldrons causation argument, it is
grounded entirely in speculation, in possibilities heaped upon
possibilities concerning events that may or may not ever happen. In so doing, the test surrenders the free speech right in
the here and now for a future harm that may never arrive.
The idea is that if allowed to circulate openly among the general populace, the harmful tendencies (and, apparently, only
harmful tendencies) contained in certain expressions might
199
The idea that Germany today (2016) is a threat on the world stage to reprise
the racism of the Hitler years is so far from reality as to be absurd. Todays
Germany is so dominated by guilt for its past that it downplays its position in
the EU and is prepared to admit a million refugees from Syria and elsewhere in
the Middle East and Africa to demonstrate its multicultural bonafides. Smart
move, that!as indicated by the 2016 New Years rampage of sexual assaults
on women in Cologne, carried out by young Muslim males. Michelle Martin,
Cologne attacks show Germany unprepared for migrant challenge, Reuters (Jan. 28,
2016), http://www.reuters.com/article/us-europe-migrants-germany-challenges-in-idUSKCN0V6173.
200
I have spelled out various other shortcomings of the bad tendency test in
Gitlow Redux, supra note 186, at 1118-24.
147
148
tact with non-group members or adopting attitudes and postures directed toward blending in
with the majority.201 Such consequences bear
heavily in a nation that prides itself on tolerance,
and the fostering of human dignity through,
among other things, respect for the many racial,
religious, and cultural groups in our society.
Note the italicized weasel words here. (84-85)202 All claims
about the harms hate speech causes are rendered in the language of pure speculation: Not [t]his impact wi! cause but
201
Waldron might have also quoted other instances of weasel words used by the
Keegstra plurality to illustrate the very real harm that [hate speech] causes.
Asserting with absolute certainty something that ends up being entirely equivocal, it said: It is indisputable that the emotional damage caused by words may
be of grave psychological and social consequence. We are also told that words
and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group. To use the word cause to describe any of these equivocations is just a bit off the mark. Further on we learn
that [i]t isnot inconceivable that the active dissemination of hate propaganda
can attract individuals to its cause (which essentially says, it might be conceivable that ) Still further we learn that the alteration of views held by the recipients of hate propaganda may occur subtly. And furthermore, that even if the
hateful message is outwardly rejected, there is evidence that its premise of racial
or religious inferiority may persist in a recipients mind as an idea that holds
149
[t]his impact may cause; not avoiding activities, but perhaps avoiding activities; not and adopting attitudes, but or
adopting attitudes. Nothing about the harms of hate speech
is written in the language of causation; whatever is said is
nothing more than unadulterated speculation masquerading
as causation.203
But, simply because we think words may have harmful
tendencies is no good reason to think they should be suppressed as such with no consideration whatever given to the
context in which they are uttered. For Sanford, just as for
Waldron and all of the other devotees of bad tendency, content not context is the critical variable. The mere presence of
the impugned content is itself the danger. For critics of bad
tendency, on the other hand, speech suppressive laws, whatever their content, give government ocials the power to
some truth, an incipient effect, not to be entirely discounted. Keegstra, supra note
58, at 746-48 (emphases added). For more on this, see my Censorship as Free
Speech! Free Expression Values and the Logic of Silencing in R. v. Keegstra, 36 Alta.
L. Rev. 835 (1988). That any of the above, when it makes any sense at all, is anything more than wild speculation about what may, can, or might conceivably or possibly result from circulation of hate speech rather than what it actually causes is highly doubtful. Unfortunately, this is the way claims about the
harms hate speech causes are just about always expressed. Waldrons speculations are no different.
203
Michael Rosenfeld is another slow acting speculator: The chief disadvantage of the American approach [to hate speech] is that it is not attuned to
potentially serious harms that may unfold gradually over time or have their
greatest immediate impact in remote places. Rosenfeld, supra note 106, in
Hate Speech, supra note 65, at 181.
150
204
151
Many courts applying the test simply inferred intent from the projected effect, as, for example, did Holmes in Schenck: Of course the document would
not have been sent unless it was intended to have some effect, and we do not
see what effect it could be expected to have upon persons subject to the draft
except to influence them to obstruct the carrying of it out. Schenck v. U. S.,
249 U.S. 47, 51 (1919). See also Debs v. U. S., 249 U. S. 211, 216 (1919); Patterson v. Colorado 205 U. S. 454 (1907).
206
152
153
n
IV
State & Society:
Private Individuals as State Officials
In this chapter I shall consider what for Waldron is
perhaps the fundamental issue at stake in the hate speech debate: convincing us that private individuals and state ocials
should be required to work together to provide vulnerables
with the assurances they need to be and to act as respected
members of society. Waldron knows full-well that neither
state nor federal authorities today are free to author the kind
of hate speech that might have been characteristic of some
Southern state governments years back. Today, if we should
encounter signs that say Muslims Go Home! or Niggers
Back to Africa! we can be certain such signs are not the
states doing. Nevertheless, while Waldron knows that state
authorities today cannot legitimately sponsor the kind of
speech he wants targeted, he thinks they have an armative
duty to prevent private individuals from doing so as well.
In fact, he thinks three things which I discuss here.
First, he thinks that every private individual has a moral obligation to accord all other individuals recognition respect,
which means to respect [every]ones entitlement to have
other persons take seriously and weigh appropriately the fact
that they are persons in deliberating about what to do. (87,
note omitted) This doesnt mean, he says, we have to arm
such respect explicitly with signs saying Muslims Welcome
156
157
through Jewish neighborhoods in an Illinois suburb? It is law enforcement that matters, not the
cardboard signs. (97-98)209
According to Waldron, this is a false contrast. In no society
is the state able to oer those guarantees on its own account
without a complementary assurance that ordinary citizens
will play their part in the self-application of the laws. (97-98)
And this means that any citizen who relies upon the law is,
in the last analysis, relying indirectly on the voluntary cooperation of his or her fellow citizens. The concern about the
public expression of racist attitudes by members of the public is that they are intimations that certain members of the
public (and those they are trying to influence) will not play
their necessary part in the administration of the laws if they
can get away with it. (99, emphasis added)210 Apparently, the
209
It matters a lot what neo-Nazis say on their cardboard signs just as it matters what counter-demonstrators say on theirs; however, nothing about this requires that the state should ban the signs.
210
Its not clear what the italicized phrase should be taken to imply. Even without supposing they are in possession of the Ring of Gyges, many, if not most,
people would surely not pay all or part of their taxes if they can get away with
it. Moreover, Waldrons claim about playing their necessary parts leaves
open the question: which laws and which set of laws he is referencing? All of
them? Some of them? Which? For example, what about those who think the
First Amendment to the Constitution (a higher law) forbids lesser hate speech
laws? Arent they, by disobeying these lesser laws, playing their necessary part
in the administration of the higher laws just as much as those who obey and
158
Dworkin makes this claim in Liberalism, in Stuart Hampshire et al., Public and Private Morality 125 (Cambridge University Press 1978): the government [is required to] treat all those in its charge as equals, that is, as entitled
to equal concern and respect. That is not an empty requirement: most of us do
not suppose that we must, as individuals, treat our neighbors children with the
same concern as our own, or treat everyone we meet with the same respect. It is
nevertheless plausible to think that any government should treat all its citizens
in that way. Dworkin sharpens this point in his Reply to Jeremy Waldron:
Waldron seems to assume that the government owes equal concern and respect
to all members of the political community because every member of the com-
159
160
161
The same argument would apply if we considered a person strictly as a member of an identity group; in fact it would be the mirror image of the racist, etc.,
162
Why anyone should be given any kind of respect because they are persons
in deliberating about what to do is puzzling. In Mein Kampf, Hitler, a fellow
citizen of Pastor Martin Niemoeller, was a person in deliberating what to do
about the Jews. Should the good Pastor have given the Fhrer recognition respect, or should he have put a bullet in his brain instead?
163
164
217
165
For here it is held to be punishable to give publicity to anyprinted matter which a judge may find
unduly oensive to any race, color, creed or religion. In other words, in arguing for or against the
enactment of laws that may dierently aect huge
groups, it is now very dangerous indeed to say
something critical about one of the groups.
However, as Justice Jackson said about democratic
political discourse in the same case, When any naturally cohesive or artificially organized group possesses a racial or sectarian solidarity which is or may be exploited to influence
public aairs, that group becomes a legitimate subject for
public comment.218 Group libel statutes chill such expression; they do not encourage it, in part because they are naturally expansive in their coverage, and in part because we can
never be certain where any given authority will draw the lines
between legitimate and illegitimate discourse about protected groups.219
B. The Governments Duty to Ensure Respect:
Governors and the Governed
According to Waldron, one of the governments distinct responsibilities is to ensure that private individuals
carry out their moral obligation to accord vulnerable minorities the same recognition respect that is due any other
group. Indeed, this is the very point of passing group libel
laws in the first place. Without them, racists, homophobes,
and Islamophobes would be free to flood the public sphere
218
219
166
220
Actually, if you think of it, this is exactly the condition Waldron thinks vulnerables are in absent the protection of the sovereigns hate speech laws.
167
means when he says that Government is not an entity separate from the people. Private individuals are, thus, under a
pre-existing moral obligation to work hand-in-hand with the
government to provide this assurance, or, at least, not to obstruct it:
because assurance is a low-key background thing,
the prime responsibility for its provision that falls
on the ordinary citizen is to refrain from doing
anything to undermine it or to make the furnishing of this assurance more laborious or more dicult. And this is the obligation that hate speech laws or
group defamation laws are enforcing. (93-94, emphasis in original)
So what the governmental responsibilities of private individuals actually amount to is that they should simply stand
out of the way and omit doing anything that would undermine, make more laborious, or more dicult the responsibility on the part of the government to furnish vulnerables their needed assurance. In other words, they should
partner with state ocials to oer this assurance. What
role is left here for dissent from that responsibility either in
itself or its particulars221 is not clear. Presumably, its limits
221
How far do these obligations bind? Waldron says they apply to anything that
undermines, makes more laborious, or more difficult the objective of assurance.
Waldron never says; but since it will be the government that determines the extent of the obligation, the entire business is indeterminate. Moreover, whatever
the extent of their obligations, the role of individuals in Waldrons well-ordered state is, either to cheerlead the governments efforts, or to shut up and
168
169
relationship between the government and the people in a democracy exactly reversed. In a democracy, the government
exists to serve the people; the people do not exist to serve
the government by furthering its agenda. Moreover, consistent with this anti-democratic and speech suppressive argument, Waldron concludes that besides a moral obligation
to accord vulnerables recognition respect, private individuals also have a legal obligation not to obstruct in any way the
governments attempt to provide vulnerable minorities the
assurance of equal citizenship. The legal obligation not to
obstruct is what he is referring to when he says that this is
the obligation that hate speech laws or group defamation laws are
supporting.
This obligation not to obstruct is certainly an odd
injunction coming from a supposed democrat; for it says
that, as far as the free speech rights of citizens are concerned,
there can be no distinction between governors and the governed, at least where the question of according vulnerables
recognition respect is concerned. For to claim, as Waldron
does, that Government is not an entity separate &om the people,
not in the formation of its policies or the enactment of its
laws, and certainly not in the discharge of its distinctive responsibilities, is, as I suggested, to claim that private individuals are actually a part of the government every bit as
much as any state ocial. However, as Steven G. Gey has argued: Without that separation [between governors and governed], democracy cannot exist because there is no group capable of popular consent to the governments exercise of
power.223 For if a government is not an entity conceptually
separate from the people, there is no entity positioned to
223
The Case Against Postmodern Censorship Theory, supra note 130, at 242.
170
call it to account. How could the people turn out any government, vote in a new one, or keep the current government
in place without being an altogether dierent entity, conceptually and functionally, and assessing its work externally from
a critical distance? Furthermore, if the people and the government are one and the same, then there also can be no
private or social space separate from the public or governmental. On this argument, the interests as we! as the ideas, values, attitudes, and actions of the people must also be those of
the government. Governmental censorship of hate speech is,
thus, a form of mind control used to ensure that whatever
the people think, believe, or do is consistent with what governmental ocials believe they should think, believe, or do.224
Moreover, if state ocials are empowered to determine the legitimacy of the topics that private individuals may
discuss along with the viewpoints they may legally hold about
each other, then not only would democracy be a word without much substance, but so also would be the vaunted free
224
Waldron denies that defenders of hate speech laws [want] to get inside peoples minds (Waldron at 33), but his entire enterprise, if it is to be successful,
demands that the government concern itself with the beliefs and preferences of
its subjects, if only to make certain they are not actively hostile to the joint
partnership. A well-ordered subject is one who holds the right opinions about
assurances to minorities. Isnt this the very purpose of group libel laws? They
arent there simply to club not-so-well-ordered-subjects into submission
are they? And if you dont want to get inside peoples minds, why be concerned about the circulation of flyers etc., in the first place? Why is it important to drive hate underground? To whom are you conveying the impression that the bigots are isolated, embittered individuals (Waldron at 95) and
why even care, if you are not concerned with what they think?
171
172
225
173
Moreover, if the government is not an entity separate from the people, why is it that legislators have free
speech rights lacking to the people? As has been true in the
English-speaking world from 1689, legislators have the right
to speak on the floor of Parliament without any criminal liability whatever.226 While Waldron believes private individuals
may be prosecuted for undermining the assurance to be accorded vulnerable groups, it is not true that any legislator
may be criminally sanctioned no matter how nasty or libelous
his or her speech may be as long as it is made in the legislative chamber. Waldron to the contrary, government is and
must be an entity separate from the people if the society is to
be free and democratic. The idea that government ocials
and private individuals are partners in a project to rid the
world of hate speechwhatever the term is said to include
smacks more of good old German Gleichschaltung, or Soviet
Partinost applied to the entire society by the regimes respective transmission belts, than it does of liberal democracy.
Waldrons joint venture is not an uncommon recommendation in leftist circles in the United States and Europeas long, of course, as the venture is in support of the
Lefts agenda. In Europe the requirement that private individuals accord the equivalent of Waldrons recognition respect to vulnerables is called a horizontal obligation (individual to individual or group to group) as opposed to the
226
The English Bill of Rights reads: The freedom of speech and debates or
proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament. The Bill of Rights (1689), 1 Will. & Mary,
sess. 2, c.2. The United States Constitution says of Senators and Representatives: for any speech or debate in either House, they shall not be questioned in
any other place. U.S. Const. art. I, 6.
174
227
Yoram Dinstein, Ugo Genesio, Rein Millerson, Daniel Thurer, & Rudiger
Wolfrum, A European Framework National Statute for the Promotion of Tolerance, available at http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/11_revframework_statute_/11_revframework_statute_en.pdf
(emphases added). The authors and supporters of this Framework have a rather unusual definition of tolerance: Tolerance means: respect for and acceptance of the expression, preservation and development of the distinct identity
of a group. (1d). Accordingly, not only are we required to accept and respect
the group, but we also must respect and accept the way they express, preserve,
and develop their group identities whatever these may be or entail. However, this
tolerance requirement does not apply across the board, for in 4 (f), ii the au-
175
Eurocrats would go to ensure the elimination of intolerance is unclear only because, as the totalitarians they are
mimicking, they specify no limits to the endeavor.
thors announce that There is no need to be tolerant of the intolerantespeciallyas far as freedom of expression is concerned: that freedom must not be
abused to defame other groups. Thus, according to the self-identified tolerant individual, there can be no tolerance for the intolerant!
In many places, this document positively reeks of authoritarian thinking. Like
all supposedly well-meaning authoritarians who seem to have little or no understanding of the evils of censorship, these lefties, like Waldron, have a multitude of human frailties on their agenda to eliminate: racism, colour bias, ethnic
discrimination, religious intolerance, totalitarian ideologies [!?], xenophobia,
anti-Semitism, anti-feminism, and homophobiaas if all these designations
are both self-defining and self-applying. The Frameworks agenda also involves
setting up a National Tolerance Monitoring Commission to monitor the implementation of the so-called tolerance regime, and to recommend penal
sanctions, education and media coverage. [6 (c)] Victims of crimes [!] will
have standing to sue perpetrators, and will be supplied Free legal aid. [7
(e)(f)] Schools, from primary levels upwards, will introduce courses encouraging students to accept diversity and promoting a climate of tolerance as regards
the qualities and cultures of others. [8 (a)]
Finally, denying any intent to censor the media, it will establish a mass media
complaints commission to ensure that public television and radio stations devote a prescribed percentage of their programmes to promoting a climate of
tolerance; it will encourage private stations to do so as well; and encourage all
the media to adopt an ethical code of conduct to prevent the spreading of
intolerance. There you have it: intolerance forced upon us by the intolerant in
the name of tolerance! Even Orwells mind would be blown if he still had one.
176
Are all government officials right-thinking? Not likely, but if some are not
and they get control of the government, what then? Waldron does not appear
to have devoted much thought to an eventuality that has in the past, and might
very likely in the future, turn the tables on the idea that we can trust the governments predilections to be the ones we want. Again, censorship with regard
to the expression of government officials is not on the table as legislators, anyway, cant be prosecuted for anything they say on the floor of the House or
Senate. That, plus their ability to pass legislation antithetical to the interests of
vulnerable minorities should it suit them are surely good reasons for vulnerables to eschew the censorial approach Waldron recommends.
177
178
attempts to ensure those rights, entail, as well, that the government has an armative duty to enforce these obligations
by means of the criminal law. This armative duty, in turn,
requires that governmental ocials must prohibit any expression which they think would undermine those rights because
to permit such expression is, eectively, to promote the message of hate.230 Prohibiting such expression sends two messages. First, it sends a message of assurance to vulnerable
minorities that their status will be protected, and second, it
informs potential hate speakers in no uncertain terms that
their attempts to undermine such assurance will not be tolerated. This set of connections follows from the claim that private individuals and governmental ocials are partners in the
governments well-ordering-through-censorship project,
which partnership, again, is a distinctly illiberal and antidemocratic notion.
Waldrons attempt to Shanghai private individuals to
partner his suppressive agenda is but the flip-side of the toleration is promotion argument. For the same reason that
government suppression of the impugned publications is said
230
179
to promote the idea of equal citizenship, government toleration of them allegedly promotes their messages of hate.231
Without being free to circulate, so the argument goes, the
publications would not be able to inflict any damage; thus,
permitting their open circulation when the government
could prevent it by law, eectively, renders the government
complicitous in the harms such speech causes. However, unless
we are prepared to say that that the argument applies only to
hate speech and not to any other exercise of a liberty the
government might permitwhich argument would likely be
ad hoc and unprincipledthen anything that people are permitted to say or publish must also be the handiwork of the
government; so that for the government to permit signs
which say Drink Bosco means that the government is promoting the sale and consumption of Bosco. How can this be?
It follows nicely from the contention that the people and the
government are one.
Just as others of this mindset, Waldron collapses the
distinction between state and society altogether by rendering
whatever is said or done by private individuals also a form of
state action simply because it is tolerated. By permitting such
231
180
speech, the state is sending a message to vulnerable minorities that they are on their ownthat they can expect no assistance from state ocials to force private individuals to accord them the respect they deserve. Moreover, it is also to
put its ocial imprimatur on the substance of the speech;
saying, in eect, that the government approves the work of
those doing the undermining. Still further, it sends a message to those in the undermining business that they can expect no hindrance to their eorts from state authorities. As
well, to those fellow travelers who may harbor the same hateful views in private, it informs them that they can now come
out of the closet and act as cheerleaders for the hatemongers
in public.232 Finally, tolerating hate speech tells the world our
society is not very well-ordered. In short, for Waldron,
mere toleration of hate speech is a form of state action that communicates to members of vulnerable groups that their
rights to equal citizenship will not be protected, and that the
eorts of those who would undermine their security will not
be resisted. Thus, the entire tolerant enterprise can be described as a joint venture between state ocials and racists,
Islamophobes, pornographers, etc., to render minorities
even more vulnerable than they allegedly currently are.
Nor is Waldron the only suppressionist commentator
laying this claim. Here, for example, is Mari Matsuda:
The third doctrinal pillar supporting racist speech
is the refusal to recognize that tolerance and protection of hate speech activities by the govern-
232
These, of course, are the messages supposedly sent by hate speakers in the
anecdotes that open Waldrons argument. Waldron at 1-3.
181
ment is a form of state action. To a!ow an organization known for violence, persecution, race hatred,
and commitment to racial supremacy to exist
openly, and to provide police protection and access to public streets and college campuses for
such a group, means that the state is promoting hate
speech. If not for such support, hate groups would
decline in ecacy. The chilling sight of avowed
racists in threatening regalia marching through
our neighborhoods with full police protection is a
statement of state authorizationOpen display conveys legitimacy. The government advances this effect when it protects these marches. In addition,
the failure to provide a legal response limiting
hate propaganda elevates liberty interests of racists
over liberty interests of targets.233
Others have advanced similar claims. Bhikhu Parekh writes
that [w]hen hate speech is allowed uninhibited expression,
its targets rightly conclude that the state either shares the
implied sentiments or does not consider their dignity, self-respect, and well-being important enough to warrant action.234
Charles Lawrence has stated that the government is in a
joint venture with private contractors to engage in the business of defaming blacks.235 So convinced is Lawrence about
233
Public Response to Racist Speech, supra note 43, at 2378 (footnote omitted, emphases added).
234
Is there a Case for Banning Hate Speech?, in Hate Speech, supra note 65, at
44.
235
182
236
Crossburning and the Sound of Silence: Antisubordination Theory and the First
Amendment, 37 Vill. L. Rev. 787 (1992), 802-03. And Matsuda: [T]he laws
failure to provide recourse to persons who are demeaned byhate messages is
an effective second injury to that person. Public Response to Racist Speech, supra
note 43, at 2379. Lawrence never tells us what we should conclude about First
Amendment injuries when a wife tells her husband to shut up and threatens to
hit him with a frying pan if he doesnt. Oh yes, I forgothe doesnt have to because no First Amendment injury can occur since shes structurally the victim, and hes structurally her oppressor.
237
183
238
Hate Speech, Equality, and Harm Under the Charter: Towards a Jurisprudence
of Human Dignity for a Free and Democratic Society, in The Canadian Charter of Rights and Freedoms 20-69 (Beaudoin & Mendes eds., 1996). For
criticisms of this state-action-by-inaction argument as well as its companion
affirmative duty to prohibit argument, see my Censorship as Free Speech!, supra
note 202, at 880-83.
239
Keegstra, supra note 58, at 756, agreeing with the statement: Parliament promotes equality and moves against inequality when it prohibits the wilful public
184
Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education, Amer. J. Ed., 215 (Feb. 2008) [hereinafter Hate in the Classroom]: For the
Peel Board to hire someone who publicly espouses the view that some individuals are worth more or less than others implies that the board condones such discriminatory views. Id. at 223 (emphasis added). The appellant Attis alleged
that the school board, by failing to take appropriate action against Ross, condoned his racist, discriminatory, and bigoted statements Id. at 226-27 (emphasis added).
243
Thus, the board of inquiry as well as the court accurately found that the
school boardhad discriminated in its failure to take a proactive approach to
the controversy surrounding Ross, thus suggesting the acceptance of Ross
views. Id. at 228 (emphasis added).
185
into account.244 Indeed, he even suggests that the mere employment of one such teacher is sucient to create a poisoned learning environment not just for a school but for an
entire school district!245
David Matas goes even further claiming that for a
school board to employ an alleged anti-Semite in any capacity whatever is to foster discrimination in society at large by
providing a haven to a hate propagandist.246 And speaking to
the symbolic importance of restrictions on racist speech,
David Kretzmer has argued that a society committed to ideals of social and political equality cannot remain passive: it
must issue unequivocal expressions of solidarity with vulnerable minority groups and make positive statements arming
its commitment to these ideals. Hate speech laws are important components of such expressions and statements.247
244
Id. at 227.
245
247
Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 456 (1987). These
were ideas the Keegstra court took to heart. Canadas hate speech law is a form
of expression, and the message sent is that is that hate propaganda is harmful to
target group members and threatening to a harmonious society[e]qually, the
community as a whole is reminded of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person [!] being particularly emphasized. Keegstra, supra note 58, at 769.
186
187
188
arguing that the mere fact that school boards employ teachers who hold racist views but never utter them in the classroom indicates that the Board condones or accepts such
views.249
The point is that if toleration means promotion, etc.,
then the state is promoting, condoning, and even enforcing250 etc., everything it tolerates, from Aunt Gussies apple
pies to lesbianism or Trotskyism, and this is absurd. At its
root, the toleration is promotion argument fails; first, because it conflates the behavior of private individuals with
that of state ocials, and second, because it assumes the
state is (and perhaps should be) responsible for everything
that is done on its watch.
249
189
Liberal-democratic societies must distinguish between the behavior of public ocials and private individuals.
Private individuals are not state ocials (unless ocially authorized in some capacity to act as such), and their expressions legally carry no authoritative weight for any other person. Were the toleration is promotion argument correct,
then every time any private individual said anything at all, it
would also be the voice of the state; for by permitting the expression the state is assumed responsible for it. This argument completely ignores the critical liberal-democratic distinction between ocial and unocial acts, between acts of
public ocials and acts of private citizens and ends up treating expressions of the latter as if made by the former.251
Moreover, the very logic of the toleration is promotion argument assumes that the state is legally responsible for every
251
Critical because it is the very basis upon which the distinction between ruling and being-ruled in liberal-democratic societies is drawn. Legislators, for example, both make the law in their official capacity and are subject to it in their
capacity as ordinary citizens. See, e.g., Jean-Jacques Rousseau, The Social
Contract, Bk I Ch. 6. See also Joseph Tussman, Obligation and the
Body Politic (Oxford University Press 1960). See also Steven G. Gey, who
argues that the entire project of postmodern censors (the Delgados, Matsudas,
MacKinnons, etc.) is to transform the politics of liberal democracies by changing the mindsets of its citizens. For this to occur, the very distinction between
state and society would have to disappear and along with it the public-private
distinction critical to both liberalism and democracy. In fact, Gey argues, if the
postmodern censors get their way, there would be no private sphere at all; nor
could they be said to miss itat least insofar as others might be thought to benefit from it. Waldrons argument in this respect suggests that, at least as far as
hate speech is concerned, he is at one with them. The Case Against Postmodern
Censorship Theory, supra note 130, at 233.
190
191
separation of rulers from ruled that is at the heart of a democracy, and without which the very idea of a democracy
makes no sense.252
Why should anyone the least bit conversant with
Western guarantees of liberty assume that toleration is also
authorization, legitimation, or promotion, etc., of the views
or conduct impugned? The very idea of freedom of expression, for example, entails that everyone is free to publicly express their opinions and the fact that they are, carries no implications that state ocials necessarily share the same views.
In Western societies it is assumed that many people hold
views antithetical to the interests, views, and feelings of others, and having the freedom to utter them is what free speech
guarantees are all about. Many oensive and potentially dangerous things are said daily, often heatedly, in the rough and
tumble of political debate. The idea that one should be encouraged to run to the state to shutter opinions which are
hurtful, opposed to ones own, or hostile to ones (or ones
group) interests, is contrary to the very meaning of freedom
of expression. In a society which subscribes to this principle
it should be taken for granted that everyone has the right to
vent their opinionseven hateful onesas long as there is
no imminent danger of violence to a person or group directly
252
The Case Against Postmodern Censorship Theory, supra note 130, at 242. The
central flaw in the feminist and critical race critiques of the public-private distinction is that these critiques cannot be reconciled with democracys basic
need for some separation between the governors and the governed. Without
that separation, democracy cannot exist because there is no group capable of
providing popular consent to the governments exercise of power.
192
253
C. Edwin Baker, takes the position that legal toleration implies neither
state neutrality [n]or complacence towardevil views. Hate Speech, in Hate
Speech, supra note 65, at 72.
193
believe that anyone could take issue with a cause so obviously just as preventing hatemongers, pornographers, etc.,
from speaking, writing, or filming, and, thereby, undermining
the status of vulnerables as equal citizens bearing equal dignity, possibly even to the extent of destroying the social order. As Holmes said, if you have no doubt of your premises
or your power and want a certain result with all your heart
you naturally express your wishes in law and sweep away all
opposition. Naturally is the key word here. Censorship
ridding the world of the speech you hateis as natural to the
human mind as swatting a pesky fly.
And this is what those for whom toleration is promotion count on. The argument for censorship is concrete,
straightforward, and obvious whereas the argument for tolerance is abstract, complex, and learned. As Holmes said, the
practice of a principled toleration requires an ability to think
beyond the issue and the moment. It requires that we suppress our short-term natural urges to censor what we fear or
hate in the here and now in favor of adopting a longer-term,
more complicated, and principled view of the matter. This
not an easy thing to do; it is far easier simply to give in to the
natural urge and swat the annoying fly. Nevertheless, and despite the natural attraction of the suppressionist argument,
after many fighting faiths have seen their day, some, though
hardly all of us, have come to realize that rather than employ
the power of the state to censor speech we hate, it is better
to leave it to the test of the market. The suppressionist cure
is much worse than the disease.
To sum up, the claim by Waldron and others that private individuals have a moral obligation to accord vulnerables recognition respect, coupled with the claim that the
state has a legal obligation to enforce this moral obligation by
194
195
n
V
On the Wisdom of Partnering With
State Officials About What We May
See, Hear, or Read
The only speech interests Waldron takes seriously are
those of hate speakers or their targets. In all his expressive
conflicts it is the speech interests of hate speakers against
the security and speech interests of the vulnerables. Nowhere in his book does he seriously consider the free speech
interests of auditors, third parties, who have an interest in
hearing what speakers have to say in order to deliberate on
the merits of the expression for themselves.254 Nevertheless,
the dignitary slap in the face that Waldrons group libel
statute delivers is not only, or even primarily, as he suggests,
to speakers but, more importantly, to those who are prevented from hearing what some speaker has to say. In this
254
The only concerns he seems to have about third parties are those of closet
racists, etc., who are possibly encouraged by racist, etc., speakers to keep the
faith and maybe take the expressive leap sometime themselves. Apparently, for
the rest of us, in the case of speech the government brands as hateful, deliberating what to do does not include reading or listening to unapproved marketplace utterances.
198
thought any more capable? Indeed, given the history of governmental eorts in this regard, they should likely be considered much less capable. As Frederick Schauer argued:
[T]he focus on the possibility and history of error
makes us properly wary of entrusting to any governmental body that authority to decide what is
true and what is false, what is right and what is
wrong, or what is sound and what is foolish. As
individuals are fallible, so too are governments fallible and prone to error. Just as we are properly
skeptical of our own power always to distinguish
truth from falsity, so should we be even more
skeptical of the power of any governmental authority to do it for us.255
Nothing we know about state ocials suggests that
their intelligence is any greater, their motives less cynical,
their characters less corruptible, their love of command any
less firmly established, their inclinations towards zealotry any
less pronounced, their penchants for quick and easy solutions
to complex problems as well as their beliefs that they know
the true, the right, and the good, any less unshakeable than
those of private individuals. But if they are not any better situated with respect to these qualities, why should we grant
state ocials the authority to determine what we are permitted to see, hear, or read? Legislators can be said generally to
be experts at two things: campaigning for oce and getting
elected, neither of which singularly qualify them to make intelligent speech discriminations. Indeed, skepticism about
255
199
Freedom of speech is based in large part on a distrust of the ability of government to make the necessary decisions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders,
and a deeper distrust of governmental power in a more general sense. But even
absent any judgments about the corrupting influence of power, simple human
fallibility is enough to lead us to be skeptical about any claim, governmental or
otherwise, to censorial omnicompetence. Id. at 86.
257
The following closely tracks my argument in Gitlow Redux, supra note 186, at
1120-21 and 1136-41.
200
258
Political Freedom: The Constitutional Powers of the People 3536 (Oxford University Press 1960) [hereinafter Political Freedom].
201
261
Hate Speech, in Hate Speech, supra note 65, at 76: Baker notes that in both
Ethiopia and Rwanda, anti-hate speech laws have been used to punish minorities for simply criticizing dominant groups. Closer to home, no better recent illustration of such corruption can be found than that of the IRS scandal of
2010-14 in which IRS agents from Washington, California, and Cincinnati
abused the powers accorded them and selectively audited Romney supporters
along with Tea Party and other conservative groups in order to refuse or delay
their applications for tax-free status and to protect and serve the interests of
the Obama re-election effort. Kimberley A. Strassel, The IRS Scandal Started at
the Top, The Wall Street Journal (May 19, 2013), http://online.wsj.com/article/SB10001424127887324767004578487332636180800.html. See Gregory
202
One way, of course, to avoid the unpleasant consequences that might be thought to attend this situation is to
argue that state ocials as a group are unique embodiments
of morality and wisdom enabling them to rise above everyday
partisan politics, and because of this ability, ought to be
given a free hand to rule. But, again, this argument from superior wisdom and rationality might reasonably be oered by
a Platonist, but it is not available to the committed democrat. And so, to grant state ocials the authority to censor
expression based on its putatively dangerous content eectively stands the free expression guarantee on its head. The
guarantee exists to protect unpopular minorities from the ex-
Korte, IRS list reveals concerns over Tea Party propaganda, USA Today (Sept.
18, 2013), http://www.usatoday.com/story/news/politics/2013/09/17/irs-teaparty-target-list-propaganda/2825003/. See also George Will, The IRS has a onesided interest in politics, The Washington Post (Mar. 7, 2014),
http://www.washingtonpost.com/opinions/george-f-will-the-irs-has-a-onesided-interest-in-politics/2014/03/07/a545366a-a56c-11e3-84d4e59b1709222c_story.html. As if to highlight the adage that justice should not
only be done but should be seen to be done, consider the appointment of a
fox (Obama campaign contributor of $7,000 Barbara Kay Bosserman) to investigate charges that there was something amiss in the Obama IRS henhouse. Matthew Clark, Obama Donor Investigation of Obama Political Scandal is
Scandal Unto Its Own, American Center for Law and Justice (Jan. 9,
2014), http://aclj.org/free-speech-2/obama-donor-investigation-obama-political-scandal-scandal-unto-its-own. Heres more: Stephen Dinan, IRS under fire:
Vote for Obama stickers, campaign cheerleading commonplace, The Washington
Times (Apr. 9, 2014), http://www.washingtontimes.com/news/2014/apr/9/dallas-irs-office-plastered-pro-obama-stickersscr/.
203
cesses of social and political majorities, not to allow such majorities operating through their political representatives to
suppress the expression of (and thus oppress) these self-same
minorities.263
If expression can be censored because it undermines, makes more dicult, or more laborious the governments responsibility to assure the equal status of vulnerables, then, as noted earlier, we could reasonably predict a
witch-hunt for (and the censorship of) a broad range of ideological tendencies deemed pernicious by current majorities.
For if it is widely believed that state ocials may rightfully
suppress expression deemed noxious, without any check on
their power to do so other than that they possess an electoral
mandate and have a rational basis for their decisions, then interested groups have every reason to seek to convince state
ocials of the importance of proscribing expression they
find hostile to their perceived interests. Thus, the more the
public becomes aware that state ocials may suppress expression with alleged bad tendencies, the more it is rational
for them to press state ocials to suppress their favorite disfavored candidates. And unless any individual or group
adopted a principled position on free expression refusing any
such censorship across the board, not doing so would be irrational.
To grant state ocials the power to suppress expressions they think dangerous is inconsistent with the principles
of moral agency and responsibility central to the concept of a
free and democratic society. In Thomas v. Co!ins Justice Robert Jackson said:
263
Ronald Dworkin, Taking Rights Seriously 140-44 (Harvard University Press 1977).
204
265
205
206
grant state ocials the authority to permit or suppress material based solely on the message it communicates is, thus, to
endow our agents with the plenary expressive power that
properly belongs to each one of us in our citizen functions.
And by denying us the moral and political agency necessary
to perform these functions, this grant not only stands the
free expression guarantee on its head, it turns the free and
democratic world upside down as well.
If the idea that state ocials should possess such censorial power is antithetical to the concept of self-governing
individuals, so also is the reasoning behind the idea. One important reason why suppressionists like Waldron believe
state ocials should possess the authority to determine
which ideas individual citizens should be permitted to consider is that under the right circumstances a significant segment of opinion might be persuaded by expression harmful
to democratic values.267 Against this view, Thomas Scanlon
has invoked what he calls the Millian Principle:
There are certain harms which, although they
would not occur but for certain acts of expression, nonetheless cannot be taken as part of a justification for legal restrictions on these acts.
These harms are: (a) harms to certain individuals
which consist in their coming to have false beliefs
as a result of those acts of expression; (b) harmful
consequences of acts performed as a result of
those acts of expression, where the connection
267
Hence, Waldron suggests at one point that it is good if hate speech laws
drive hate underground because then the bigots cannot contact and coordinate with one another in the enterprise of undermining the assurance the
laws are there to prevent. Waldron at 95.
207
between the acts of expression and the subsequent harmful acts consists merely in the fact
that the act of expression led the agent to believe
(or increased their tendency to believe) these acts
to be worth performing.268
To claim that such harms are valid reasons to suppress the
expression that allegedly caused them is not only, as earlier
noted, to question the ordinary method of democratic policy determination, it is also to question the very possibility of
citizen autonomy and agency.269 The claim treats citizen/auditors as if they were but ciphers through which causes work
268
Many of the arguments against Scanlon are grounded in some or other form
of paternalistic reasoning: We should give the state censorship powers because
under certain conditions we, or the most gullible among us, may fall prey to
harmful or dangerous statements. The problem with this argument, as Eric
Barendt has noted, is that It could be employed to undermine any argument
for freedom of political speech, because it can always be said that the people
cannot be trusted properly to assess the claims made to them. Incitement to,
208
Ronald Dworkin has argued a similar point: morally responsible people insist on making up their own minds about what is good and bad in life or in politics, or what is true and false in matters of justice and faith. Government insults
its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions. We retain our dignity, as individuals, only by insisting that
no oneno official and no majorityhas the right to withhold opinion from
us on the ground that we are not fit to hear and consider it. The Coming Battles
Over Free Speech, New York Review of Books, 56-57 (1992) (book review, reviewing Anthony Lewis, Make No Law: The Sullivan Case and the
First Amendment (1991)), available at http://www.nybooks.com/articles/1992/06/11/the-coming-battles-over-free-speech/.
209
that status. As we have seen, his basic argument is that rightspeaking peoplethose who utter the approved messages
should ally with right-thinking state ocials to censor the
unapproved utterances of the benighted among us. Whatever
could be said on issues aecting assurances given to vulnerable minorities, then, could only be that given clearance by
state authorities. To the extent the censorial project were
completely successful, any position taken on any such issue
would be one ostensibly shared by both a! private individuals
and a! state authorities. In the event, in this version of the
well-ordered society, there would be no separation whatever between state and society and no dissent either.
210
n
VI
Waldrons Civility Argument
Waldron says his group libel law would not criminalize slander (spoken insults, epithets, and name-calling) because the spoken word while hurtful is generally not longlasting. (116-117, 34-35, 37)271 His real interest, as he states
throughout his book, is with publications, particularly with
signs and postings that attack the public good of assurance
and wish to replace it with a rival public good of fear, suspicion, and hostility to the interests and status of vulnerable
minorities. Publicly displayed writings, he argues, generally
cause greater harm to the interests and status of minorities
than the spoken word.
Nor does Waldron think group libel statutes threaten
free speech interests in any serious way. Instead, he tells us
throughout that whatever hate speakers have to say they can
say in more civilized language which, apparently, would avoid
prosecution. He says that we want to catch only hate speech
that is expressed in an insulting, or threatening way, and
that means we must attend to the content of the words or
written material itself, rather thannon-content-based
271
Though, as noted earlier, he hints that under certain conditions verbal expressions may be targeted because the echo of an epithet can linger and become a disfiguring part of the social environment. Waldron at 117.
Emphasis in original, referencing Baker, Autonomy and Free Speech, in Extreme Speech and Democracy, supra note 87, at 143. Unfortunately, Waldron never tells us what this more moderate racist expression might look like,
nor how it differs from less moderate or more extreme forms of racist expression. However, see Chapter VII for some possible examples.
214
273
This last sentence is truly astonishing. Even assuming they were identifiable
with some precision, how would we go about ensuring these legally innocuous
modes and forms of expression were protected? Would we list them and post
them somewhere so that all could know exactly what they may say? I can see it
now: Here is the list of legally innocuous modes and forms of expressions you
are free to use, you racist and phobic bastardsnow go to it boys! Even more
absurd is the apparent blessing Waldron gives to the airing of similar views
and similar values and attitudes (compare the odd discussion between judge
and prosecutor, below at pp. 276-79)whatever these may bewhere the
views, values, and attitudes freely unleashed can only be those of alleged racists
or phobics! Given the greater persuasiveness of moderate speech, one is left
wondering whether Waldron is trying to promote hatred or prevent it.
215
274
216
Pretty egregious, eh? Almost Hitlerian? Perhaps even Progressive?276 I certainly think so, but, absent some non-content-based reason, I do not think it should be suppressed any
more than a substitute version which denigrates Whites rather than Blacks. The Klans statement is so egregious as to
be ridiculous and more illuminating about the poster than his
intended targets. It is true that there was a time in certain
parts of the country when such a statement might have had
the eect of making everyday life dicult for Black folks; but
not today. As noted earlier about an anti-Muslim posters
persuasive chances in parts of New Jersey, posting something
like the above anywhere other than the posters basement
would be more likely to bring hordes down on his head than
the Blacks he was trying to defame. Like the Nazis in downtown Chicago or Marquette Park, he would be running for
his life.
No doubt such statements would anger many black
people as well as most Whites, but that is all the eect they
likely would have which is at all publicly significant.277 They
276
277
Indeed, the case is almost the reverse today. Black mobs have been brutalizing Whites throughout the country in the past few years, and it is difficult to
get any racial component to the beatings from the mainstream press. Indeed,
these incidents are rarely reported, and if they are, the perpetrators are generally described as youths or young people rather than the racist thugs they
are. Even more astonishing, it is rare for the victims to report the race of their
tormentors. The fear, of course, is that if they do, they will be thought racists.
For a run-down on the beatings and the reactions of the media and the victims,
see White Girl, supra note 111. Things have gotten so bad that even one of the
countrys premiere race hustlers has found it necessary to condemn the knockout game. Sharpton, Other Civil Rights Leaders Launch Fight Against Knockout
217
You cannot libel someone by saying I despise you, which seems to be the
essential message common to most racial epithets. Henry Louis Gates Jr., War
of Words: Critical Race Theory and the First Amendment, in Speaking of Race,
Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties 30
(Robert Gates Jr. et al., 1994).
218
full standard deviation below the mean, even controlling for socio-economic disparities, they are
also profoundly misguided. The truth is, you
probably dont belong here, and your college experience will be a long downhill slide.279
As Gates sees it, in American society today, the real power
commanded by the racist is likely to vary inversely with the
vulgarity with which it is expressed.280 Ironically, then, the
most eective defamation would come from exactly the type
of speech Waldron would protectthe moderate or the
civilwhile the least eective would be the type he urges
us to criminalize.
Like Waldron, fellow suppressionist Erik Bleich
thinks that we should target only the most egregious forms
of racist expression but, at the same time, inadvertently reveals a serious problem with this strategy: for in many cases
the uncivil expression is the evidence for the moderate or
civil. Bleich begins by arguing the speech protective case that
statements or organizations which are designed to contribute to public debate about state policieshave to be protected, even if they may have potentially damaging side effects; but then he says:
Determining which forms of racism undermine
social cohesion, perpetuate discrimination, and
disadvantage, or foster violence will depend a
great deal on context. To some extent, this turns
on the manner in which the words are spoken.
279
Id. at 46-47.
280
Id. at 47.
219
Saying, I think this country has too many immigrants and they are hurting our country, has to be
protected speech; but saying, Immigrants are
thieves, rapists, and murderers and they should be
herded back across the border, does not. The
first is a comment on policy coupled with a concern about quality of life. The second is an attempt to stir up hatred and possibly violence,
even if couched in public policy concerns. The
first leads to debates about whether a country
should have permissive or restrictive immigration
policies. The second calls upon citizens or the
state to engage in human rights violations.281
Apart from the fact that Bleich has no way of knowing the intent of the imaginary persons in his hypothetical
and, thus, what they are attempting to do (stir up hatred,
foment human rights violations) there are two diculties
with his argument. First, his hypothetical culprit fingers immigrants per se, not the sub-class of i!egal immigrants which,
if the hypothetical is to be convincing, must obviously be
those being targeted. In the real world, most of those who
are concerned with the robberies, rapes, and murders by immigrants would center their attention mainly on immigrants of
the i!egal variety.282
281
Surely, Bleich is not really asking us to believe that the animus here is against
just any old immigrants? If he is, his example makes no realistic sense. Few, if
any, would think legal immigrants from, say, Sweden, should be chased back
home because they are thieves, rapists, and murderers. Obviously, the class of
220
Perhaps Bleich believes the culprits assertion should be unprotected because it targets the entire class of immigrants whether legal or illegal and would
be protected if he targeted, say, either many, most or some of them irrespective of their legal status. Of course, this is not generally how people speak
politically in heated controversies, certainly not those who lack lawyers standing by to coach them on the proper expressive etiquette necessary to protect
them from running afoul of hate speech statutes. Moreover, which of the listed
subsets (many, most or some) in either category would satisfy the tests of
prospective regulators? For some thoughts on the matter, see Chapter IX (cartoon controversy).
221
284
There are other reasons why we should protect this speech even if we think
it wrong and uncivil. For one thing, voicing it permits us to point out its falsity
and, in the process, correct widespread misconceptions. For another, it might
contain some element of truth that is worth considering. One truth it certainly
contains is who holds such views and why? As Daniel A. Farber, noted: The
truth is that racism in our society isoften characterized by the ugliest of emotionsWe obtain an important truth from these speakers, although it is not a
truth they mean to convey. Civilizing Public Discourse: An Essay on Professor
Bickel, Justice Harlan, and the Enduring Significance of Cohen v. California,
1980 Duke L. J. 283, 301 [hereinafter Civilizing Public Discourse]. See also
Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the
Subordination of Groups, 1990 U. of Ill. L. R. 95, 103 n.25: what was it that
galvanized northern white opinion in support of the desegregation of public
schools? Not a committee report; not a paper read to a conference of social scientists. Rather, Northern white opinion took a decisive turnbecause millions
of television screens pictured a scene in Little Rock: white adults, their faces
contorted with rage, screaming at black children who were entering school under armed guard.
222
For example, Jean-Jacques Rousseau, Discourse on the Arts and Sciences (1750).
286
[W]e want to catch only hate speech that is expressed in an abusive, insulting, or threatening way (Waldron at 150); Balancing speaker and target interests may require us to ensure that there are legally innocuous modes and
forms of expressionswhere similar views can be aired (similar values and attitudes disclosed) in ways that minimize the damage to social values and individual dignity (Waldron at 172); Most hate speech laws bend over backwards
to ensure that there is a lawful way of expressing something like the propositional content of views that become objectionable when expressed as vituperation (Waldron at 190); As long as their speech maintains a decent and moderate mannerthe racist and the Islamophobe [can] speak, to mount the challenges that they want to mount; they just have to take care with the mode and
manner in which their challenge is expressed. Waldron at 199.
223
kept the same message but cleaned up its language. Moreover, noting that a scrubbed-up version of David Duke came
frightening close to being elected governor of Louisiana,
Haiman concluded that coded messages of group hatred
that steer wide of what could be outlawed by any conceivable
ban on hate speech are potentially far more harmful to disadvantaged groups than anything a ranting and raving racist
might say.287 In the event racists are not so stupid as to persist in using expressive instances banned by Waldrons group
libel statute, the end result of cleaning up their language
would more than likely be just the opposite of what he
thinks: their prescriptions for the evils they see would become more, not less, attractive to potential supporters. So
much for the attempt to protect vulnerable minorities by
banishing ugly expressions!
Despite these rather obvious objections, Waldron
thinks that as long as there are legally innocuous modes and
forms of expressions which can substitute for the threatening, the abusive, the virulent, or the vituperative, then
287
224
there is no serious free speech issue. Without group defamation restrictions, public discourse would be coarser, more
intimidating, more demoralizing to the members of vulnerable groups. Moreover, according to Waldron, such contentbased restrictions do not, as Georey Stone has argued,288
distort public debate. They are designed to have an eect on
public debate in circumstances where it is reasonable to believe that, without some sort of restriction, public debate will
have an eect on peoples lives that government has an obligation to be concerned about. (156)289
Censoring threatening, virulent, abusive, vituperative, etc., public expression directed at members of
vulnerable groups is, in Waldrons eyes, a relatively harmless restriction on the free expression right which does not
distort but moderates and civilizes public debate by ensuring it will be frequented only with the type of language
one would encounter in something resembling an academic
debate.
In response to the charge that such restrictions distort public debate, Waldron says:
Such a description presupposes a privileging of
what public debate would be like without intervention. But why should we privilege that? At any
given time, public debate consists in an array of
millions of contributions of various sorts, interacting and snowballing in various ways. At any
given time, this heaving array has various eects
288
Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987), citing Political Freedom, supra note 259, at 27.
289
225
on the beliefs held and attitudes adopted by millions of people, making some more enlightened
and sophisticated, trivializing or degrading others,
and so on. Is there any reason to suppose that this
interaction or its eects are more valuable when
they are not altered in any regard by legal regulation? (155)290
So, Waldron says, given that this heaving array of individual
contributions interacting and snowballing at the societal level
aects our beliefs and attitudes dierently and dierentially,
the debate is already distorted with the result that some individuals are more enlightened and sophisticated than others.
Thus, Waldron argues, if the debate is already distorted and
the results are mixed, why presume these results are better
without legal regulation? Yes, censorship distorts the debate, but the debate is distorted anyway; moreover censorship is not necessarily baleful, it can alter the debate for the
good, and where it can, as with hate speech, it should be permitted to do so.
Waldrons belief that because the debate is distorted
in the first place, we should not worry unduly about the distortion state censorship may bring is remarkably nave. Legal regulation is state censorship by another, much nicer
sounding name, but it is subject to the same criticisms and
290
226
ugly history nonetheless. But Waldron and his fellow censors, apparently, are dierent from past censors. Their censorial eorts are not intended to silence political opposition;
instead, they are intended to civilize public discourseto
make it more intelligent, civil, and enlightened.291 In contrast
to those who would undermine eorts to secure a more
well-ordered society, their censorial eorts would be directed to producing more well-ordered subjects. All of this
assumes, of course, that those in authority will wield the censorial power in the way Waldron and his enlightened followers presume, but there is little in the history of censorship
that would permit such sanguinity,292 and there is, apparently,
291
227
nothing by way of checks on the censorial power that Waldron contemplates. He seems simply to assume that things
will work out the way he wants.
Moreover, those, such as Waldron, who believe that
the state has an armative duty to censor speech containing
harmful tendencies, are also those who likely would find such
speech in many otherwise harmless precincts. Moral certainty, arrogant self-righteousness, and zeal armed with the
power of the state to back it up are not things that either
counsel caution or restraint on the part of those armed with
them; nor should these comfort the heart of todays liberal.
They call to mind the image of little Anthony and the Comstockings going about the business of nosing into peoples
mail to ensure that nothing obscene or pertaining to sex,
such as anatomy books or birth control information, would
elude their censorial grasp.
As argued earlier,293 while Waldron has asserted great
harm can come from the publications he wishes to censor, he
has not shown any such harm alleged to have come from
them that is not equally, indeed, better, explained on grounds
other than expression. So his argument for censorship is not
only without the needed basis, it is also dependent on distorting the public debate.
versities are poking their noses into matters having nothing to do with their educational missions is nicely captured in USCs requirement that students answer questions about their sexual practices prior to being permitted to register
for classes. Anthony Gockowski, USC students required to detail sexual history before registering for classes, Campus Reform (Jan. 12, 2016), http://www.campusreform.org/?ID=7155.
293
228
n
VII
Ending Debate in the
Marketplace of Ideas
Nevertheless, answering his own question whether an
open but distorted debate is better than a state censored debate, Waldron proceeds to launch an attack on the marketplace of ideas as a rationale for preventing censorship. In so
doing, he distorts the rationale itself. He seems to believe
that proponents of the marketplace rationale contend that
open debate will inevitably yield the truth,294 but apart from
John Milton,295 it is dicult to find any other person who
294
[W]e do not buy into the assumption that truth will inevitably prevail in
the marketplace of ideas Waldron at 157.
295
[S]o Truth be in the fieldLet her and Falshood grapple; whoever knew
Truth to be put to the wors, in a free and open encounter. Areopagitica: A
Speech for the Liberty of Unlicensed Printing (1644) available at http://www.dartmouth.edu/~milton/reading_room/areopagitica/text.shtml. Contra The dictum that truth always triumphs over falsehood is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces,
but which all experience refutes. History teems with instances of truth put
down by persecution. J. S. Mill, On Liberty 28 (Norton 1975). Frederick
Schauer says that Mills assumption that the removal of persecution will allow
truth to triumph in all cases is every bit as much a pleasant falsehood. Free
Speech: A Philosophical Enquiry, supra note 255, at 27. However, no evidence is advanced to support Schauers claim that Mill assumed this. Some
commentators are ambivalent; for example, Rosenfeld, supra note 106, in
Hate Speech, supra note 65, at 261, 351, says both that the American assumption [is] that truth will ultimately prevail, and that it is more likely to prevail
if the marketplace is left open. Nor do I, but that is not a strike against the marketplace of ideas. As D.F McGowan & R.K Tangri argued: A market does not
fail because people decline to adhere to a given set of ideas that the market
makes available. A market does fail when it is prevented from making available
certain ideas to which people might wish to adhere. The function of a market
is to provide choices, not compel them. A Libertarian Critique of University
Restrictions of Offensive Speech, 79 Cal. L. Rev 825, 873-74 (1991).
296
232
298
233
power. Yet, if we think clearly and look to history, we will realize that many past truths (certainties men have died for)
have been dethroned over time, and that the better way to
reach whatever ultimate good we desire is not by means of
state power but by the free trade in ideas. The last two
clauses of this sentence convey his meaning. He says the
best test of truth is not mere dictates issued by the power of
government ocialsfor these have no more (in fact, likely
less) claim to truth than any derived from market outcomes299but instead the power of the thought to get itself
accepted in the competition of the market. What is critical is
not the power of a person or some institutional authority to
dictate truth, but the power of the thought to become accepted by market participants. Holmes apparently believed
that thoughts could be powerful enough to command assent. A thought that powerful is what he meant by truth,
and a truth that has commanded assent against all other
competitors in an open market is the only assurance we have
that what has been assented to actually is the truth as we
now know it. This does not mean that what we now call
truth in political or social life is necessarily true for all
times or places.
Having said that truth is an outcome of competition
in the market, Holmes says marketplace competition is the
theory of our Constitution, and that like all life itself, it is
also an experiment. Experiments test truths; life itself is a
299
Unlike Mill, Holmes was driven by skepticism and pessimism and expressed
grave doubts about the possibility of truth. Because of this, Holmes justified his
free marketplace approach on pragmatic grounds. Given that most strongly
held views eventually prove false, any limitation on speech is most likely
grounded in false ideas. Rosenfeld, supra note 106, in Hate Speech, supra
note 65, at 251.
234
235
236
on Q&A, knows nothing about the climate, JoNova (Sept. 24, 2013), http://joannenova.com.au/2013/09/david-suzuki-bombs-on-qa-knows-nothing-aboutthe-climate/. As far as I am aware, Gore has yet to recommend prison for
global warming deniers but he has linked them to racists and, though he refuses to debate anyone who contests his charges, he is absolutely certain the
planet is warming at an alarming scale. Climate change deniers will be despised just
like racists one day, says Al Gore, The Daily Mail (Aug. 30, 2011),
http://www.dailymail.co.uk/news/article-2031278/Climate-change-deniersseen-racists-day-says-Al-Gore.html. Moreover, an assistant professor of philosophy at the Rochester Institute of Technology, Lawrence Torcello, has also
jumped on the jail them: theyre criminally negligent bandwagon. Is misinformation about the climate criminally negligent? The Conversation (Mar. 13,
2014), https://theconversation.com/is-misinformation-about-the-climatecriminally-negligent-23111. Here he is again, along with Adam Weinstein, in an
even more ridiculous pose: Adam Weinstein, Arrest Climate-Change Deniers,
Gawker (Mar. 28, 2014), http://gawker.com/arrest-climate-change-deniers1553719888. For Torcello, as the others, the science is settled and, therefore,
like Gore and Suzuki, scientific progress requires they block the way of any
future scientific inquiry that doesnt confirm what they currently believe is certain. One fine European scholar has even gone so far as to say that an appropriate punishment for those who reject the alarmist message might be death: Prof.
Richard Parncutt: Death Penalty for Global Warming Deniers?, Tallbloke (Dec.
24, 2012), http://tallbloke.wordpress.com/2012/12/24/prof-richard-parncuttdeath-penalty-for-global-warming-deniers/. And heres the latest jeremiad
from one of the more ridiculous members of our Kennedy clan: Marc Morano,
Robert F. Kennedy Jr. Wants To Jail His Political OpponentsAccuses Koch
Brothers of TreasonThey ought to be serving time for it, Climate Depot
(Sept. 21, 2014), http://www.climatedepot.com/2014/09/21/robert-f-kennedyjr-wants-to-jail-his-political-opponents-accuses-koch-brothers-of-treason-
237
238
One reason one might agree with Waldron here is that others of his leftist
mindset have tried to bully it to an end. As some commentators noted: No
239
240
For Waldron the race debate305 has been won; a truth has
been established. Its settled science. Anyone who dissents
is crazy. Nothing of any serious importance is left to be
Note: Group Vilification Re-considered, 89 Yale L.J. 308, 329 (1979). Nor, apparently, has he heard of Professor J. Philippe Rushton, a Psychologist at the University of Western Ontario, who has argued a similar case, with the added twist
that Orientals are intellectually superior to both. J. P. Rushton, Evolutionary
Biology and Heritable Traits (with reference to Oriental-White-Black differences),
A paper prepared for the Symposium on Evolutionary Theory, Economics,
and Political Science: An Emerging Theoretical Convergence, American Association for the Advancement of Science, San Francisco, Ca. (Jan. 1989). Then
there is Professor Charles Murray, who, along with co-author Professor Richard Herrnstein, wrote The Bell Curve: Intelligence and Class Structure in American Life, parts of which discuss the controversial connection and importance of
race and intelligence in America. (Free Press 1994). Of late, Harvard Ph.D. Jason Richwine resigned from his post at the Heritage Foundation after it was
discovered that his doctoral dissertation, I.Q. and Immigration Policy, said
unpopular things about Hispanic immigrants. His mistake was to provide statistical evidence that Hispanic immigrants, even after several generations, had
lower IQs than non-Hispanic Whites. David Weigel, The IQ Test, Slate,
http://www.slate.com/articles/news_and_politics/politics/2013/05/jason_richwine_hispanics_and_iqs_the_heritage_foundation_scholar_began_researching.html.
305
241
307
Despite the finality of his language, one gets the strong feeling that Waldron
is ambivalent about the debate being over at least as a factual matter. As Robert Post pointed out, Waldrons admission elsewhere that the fundamental
principles of the race debate are only more or less settled, likely suggests
such principles should be fundamental and beyond dispute. Post suggests:
That amounts to the proposition that persons should be prevented from communicating because in our view they have nothing to say. Interview with Robert
Post, in Hate Speech, supra note 65, at 27; Waldron, Hate Speech and Political Legitimacy, in id. at 336.
242
As Holmes said, Certitude is not the test of certainty. We have been cocksure of many things that were not so. Natural Law, 32 Harv. L. Rev. 40
(1918), as quoted in Blasi, supra note 296, at 20.
309
310
Id. See Dinesh DSouza, The End of Racism: Principles for a Multicultural Society (Free Press 1995). See also Stephan Thernstrom & Abigail Thernstrom, America in Black and White: One Nation Indivisible (Simon & Schuster 1997).
311
243
312
Didnt intelligent opinion settle the matter once before as well? See notes
148-54 and accompanying text at pp. 117-19.
244
society is less secure than is implied by the societys actual foundational commitments.313
Really? What a letdown! After all this discussion of
the harm in hate speech, we are told not that censorship is
necessary to protect vulnerables and society from any immediate or, even, short-term serious danger; nor that there is
any danger that anyone with half a brain in his head will be
convinced by Vulgarmans message? No: everyones free expression rights are to be regulated, Waldron tells us, just so
Vulgarmans attempts to infect his targets with fear and insecurity by exposing them to the rabid spittle dripping o his
tonguesomething most likely to infect only its hostwill
be unsuccessful! Like others in its genre, this argument fails
because it simply assumes that without regulation the attempt, however unlikely, might succeed!314
313
Hate Speech, supra note 65, at 337 (i.e., the second and third narratives
Waldron presents at the beginning of his book. Waldron at 2-3. So I should be
censored now because if I am not, someone might come to believe what I say!
Good old bad tendencyalways a fine example of how not to treat people as
equals!
314
And that is precisely why the debate must be shut down. In this Waldron is
not alone. For many progressive liberals any debate about issues they are certain are settled must be settled as well for everyone else. For unless the participants have the correct positions on issues such as homosexuality, gay marriage, climate change, smoking, illegal immigration, Islam, terrorism, female circumcision, honor killing, and rape culture, to name but a few, they should
shut up altogether or speak about something else.
In what are undoubtedly some of the finest examples of legislative linguistics, progressives have declared that debates on such matters are now
settled. Homosexuality is an unmixed good and its sexual practices should be
245
Given this argumentative letdown, one wonders why Waldron went out of his way to attack his former teacher, the
late Ronald Dworkin. Dworkin says hate speech laws create
legitimacy problems because they suppress the expression of
a select group of people on the basis of their political content, thus, denying them315 a voice in democratic decisiontaught in K-12 classes. And who, other than homophobes, could be against gay
marriage? For the arguments of three intelligent people who are, see Sherif
Girgis, Ryan T. Anderson & Robert P. George, What is Marriage?
Man and Woman: A Defense (Encounter Books 2012). Global warming is, as
we have seen, settled science, and those who deny it and its anthropogenic basis should, perhaps, be fined or imprisoned, or even, perhaps, killed. Borders
should be open to all, and those who oppose open borders are xenophobes or
racists or both. Islam is clearly a religion of peace and, despite the many excesses of its radical adherents, its good name must be protected from the rantings of Islamophobes. Islamic terror is the terror that does not dare to be identified by name. Female circumcision is a something they do in other cultures
and who are we to judge? The same is true of honor killing, and if it happens
in North America, it is to be called domestic violence. Finally, that there is a
rape culture in our universities is also settled science. Anthony Furey, The
settled science of rape culture, Toronto Sun (Apr. 18, 2014), http://www.torontosun.com/2014/04/18/the-settled-science-of-rape-culture. In all of these matters, unless you hold the correct positioni.e., the same position as those
who are progressiveyou should hold your tongue.
315
As noted earlier, Waldron says that a properly designed hate speech law
would not prohibit expression of their views because the law would only punish
the most threatening, abusive, and insulting instances of hate speech. Haters
would still be free to say their pieces in more moderate language. However, as
Waldron himself recognizes, whether, for the speaker, the more moderate language would be a satisfactory stand-in for the preferred invective is another
246
247
Waldron never shows that he does. All we know is that Waldron thinks hate speech and pornography are important
causes of discrimination and violence, but that Dworkin
thinks we need not censor hate speech or pornography to
protect against these. Moreover, by permitting hatemongers
to speak, Waldron says Dworkin is saying that no majoritarian laws can be legitimate unless there is some provision for
this important debate to continue, so that the losers (the racist and the bigots) have a chance to persuade the majority of
the truth of their position the next time around. (196)316
However, as Waldron should know, this is not Dworkins position; it is but a caricature of it, as is this description as well:
if you want to be tough on crime, legitimately tough on offenses like racial violence and discrimination, then you have
to be tolerant of the causes of crime; that is what Dworkins
position amounts to. (179) No, this is not Dworkins position either; it is, again, what Waldron says is Dworkins position.
The only evidence Waldron advances to support
either of these claims is from a passage in Freedoms Law
where Dworkin speculates that even if it could be shown, as
a matter of causal connection, that pornography is in part responsible for womens alleged economic diculties or that it
contributes to an unequal economic or social structure, banning pornography would still be unconstitutional:
It would plainly be unconstitutional to ban
speech directly advocating that women occupy inferior roles, or none at all, in commerce and the
professionsSo it cannot be a reason for banning
316
248
318
249
Hate Speech, supra note 65, at 339-40. Waldrons bluff claim is that
Dworkin retreated from his original view that democratic legitimacy was entirely destroyed by any suppression of a speakers expression to a much more
moderate claim that hate speech laws do not spoil the legitimacy of these
[downstream] laws altogether. Dworkin responded by saying, first, that he
never held the view Waldron attributes to him, and that he said in Is Democracy Possible Here? 97 (Princeton University Press 2006) that legitimacy
was a matter of degree (a view which he believes Waldron also holds), and
that not every law that is spoiled by a defective democratic process justifies
citizen rebellion. Second, he says, We can hardly justify a defect in political
legitimacy by arguing that it might have been worse. Reply to Waldron, in Hate
Speech, supra note 65, at 341.
250
the line or tell the dierence. Second, though he himself appears unable to tell the dierence in any practical way, he attributes to government the ability to do so, ignoring the fact
that government ocials, to say it again, are not always the
open, honest, transparent, disinterested, and knowledgeable
souls they must be if they are to perform the task Waldron
would assign them.
251
n
VIII
Hate Speech Versus Good Speech:
Line Drawing and Application
Problems
Lets assume that, contrary to everything here said,
Waldron has convinced us of the moral value and urgent
need for a group libel statute. Weve bought into his argument that such a statute is necessary to protect the ever-expanding class of vulnerables. We believe that inserting even
the smallest amount of defamatory expression into the public
discourse may eventually compromise the social standing of
any number of vulnerable minorities. We believe, with him,
that private individuals, no less than state ocials, have an
obligation to refrain from publishing anything that threatens
the social standing of vulnerables; that private individuals
must partner with state ocials in this project; and that for
the government to tolerate the impugned expression is, in
fact, to promote hatred against its targets. Finally, lets assume, as well, that there is no valid reason why people must
use vulgar and harsh language and cannot moderate their discourse and say similar things in a more civilized tongue.
Nevertheless, even if we grant all this, even if we accept the
moral premises of Waldrons argument for a group libel statute, there still remain ever-present practical and political
problems of application.
As, for example, was much of the expression of the Progressive Movement
in the early twentieth century. See Chapter III.
254
caeteris paribus,321 one that should be subject to serious investigation, if not always to criminal prosecution. What follows is
a list of such instances drawn from pages in Waldrons text.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
321
255
12.
13.
14.
15.
16.
17.
18.
19.
appear. [B]anners and swastikas celebrating or excusing the genocidal campaigns of the past. [s]igns
indicating [minorities] are not welcome in certain
neighborhoods or in polite society generally, and
flaming symbols intended to intimidate them if they
remain. (66)
[S]igns saying Christians only or Churches
Nearby. (68)
[A]ttempts to advocate publicly for the exclusion or
subordination of a given group, or their disenfranchisement, segregation, enslavement, concentration,
deportation, or whatever. (70-71)
[Demonizing] a minority as cockroaches and vermin,
day after day. (72)
[S]porting American flag decals. (88)
[a]dvertising billboards, subway placards, and innumerable television screensin ways that demean one
large class of its citizens, ways that convey a degrading message about their sexuality, ways that highlight
a particular range of opportunities and activities presented as appropriate for them to the exclusion of a
large number of other activities and opportunities, or
ways that portray as normative a kind of subordination in relationships that is at odds with the idea of
an autonomous person working out her own destiny
under conditions of justice and dignity. (89).
Niggers Go Back to Africa! [A] burning cross or
noose placed on someones door. (118)
[A] claim that Tea party politicians cannot be
trusted with public funds or that they are dishonest.
(121)
[L]eaflets libeling Muslims as terrorists orpublic
portrayals of peoples of other races as apes or gibbons. (149)
256
257
ishing such obviously hateful expressions with criminal liability? As argued in Chapter VI, the most vulgar would be the
least eective, and the more intelligent racists, etc., would
clean up their language to avoid punishment. Again, doing so
would likely persuade more peopleexactly what Waldron
says he does not want to happen.
Second, the above list contains generalized statements
about the types of speech that would constitute instances.
These can be found in numbers 5, 11, 13, and 16 on the list.
These dier from the specific linguistic examples, just considered, which easily may be evaded by changing the words
and tenor of the expression. Such more generalized instances, unlike the specific linguistic expressions we have just
considered, constitute umbrella-like categories which include
any number of instances, and which, therefore, require a fair
bit of interpretation to locate and to cabin their proper application. Such instances raise vagueness issues because they
do not clearly indicate which expressions in particular are
targeted by the law, and, as a result, they do not give speakers
fair notice as to what the law forbids. On the administrative side, such vagueness raises overbreadth concerns in
that the speech captured by the statute may include speech
that ought not to be targeted, and, thus, state ocials are inevitably permitted too much enforcement discretion. The
first raises problems for speakers, the second, for state ocials as well as everyone else.
For example, the categories racist, or homophobic or
Islamophobic slogans lack identifiable boundaries and, thus,
leave open for interpretation just which specific expressions
are to be included within each category. Expressions do not
enter the linguistic world pre-packaged as racist, homophobic, and Islamophobic; unless they are meant simply as
epithets, they need definitions to establish their respective
258
boundaries and to delineate clearly and unambiguously expressive instances to which they are to be applied. However,
even if they are meant to be more than mere epithets, terms
such as these are bound to be highly contentious, politically
loaded, and potentially infinitely expansive. Christopher
Caldwell tells us that in an inquiry into the murder of a black
man in London by the British Home Oce, a racist incident was defined as any incident which is perceived to be
racist by the victim or any other person. Caldwell remarks
that the idea that racism was whatever anyone says it was
became the working norm in many European countries.322
322
259
lice-ignore-pakistani-gangs-raping-rotherham-children-political-correctness/print/. The 2014 Report by Alexis Jay on which Scruton bases his analysis:
Rotherham Metropolitan Borough Council, Independent Inquiry
into Child Sexual Exploitation in Rotherham (19972013), 2014
(U.K.), available at http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham. For an expos on the Rotherham case
from the whistleblower herself, see Jayne Senior, Broken and Betrayed
(Pan 2016).
Here at home, on the other hand, colleges are doing their parts to
fight against such traumas by issuing trigger warnings designed to ensure sensitive individuals are not exposed to uncomfortable subjects. Colleen Flaherty, Trigger Unhappy, Inside Higher Ed (Apr. 14, 2014), https://www.insidehighered.com/news/2014/04/14/oberlin-backs-down-trigger-warningsprofessors-who-teach-sensitive-material. At Portland State University, for example, a student who sent out flyers purporting to create a murder-free zone
to counter the colleges gunfree zone was prevented from doing so because
the flyers were thought by the administration to be libelous, triggering, and
even dangerous. Robby Soave comments: When a college deems it necessary
to prevent some students from expressing mildly controversial ideas because
other students are emotionally incapable of handling themand could even react violently!its no longer collegeIts an insane asylum. Portland State University Will Shut Down Political Activity If Its Triggering, reason (July 16,
2015), http://reason.com/blog/2015/07/16/portland-state-university-will-shutdown.
260
While the use of the term illegal immigrant as yet hasnt quite been officially banned, the University of California (Berkeley and UCLA) student unions have decided it is racist, offensive, unfair, and derogatory to label someone as such. Student senators at U.C. (Berkeley) unanimously declared that
the word illegal is racially charged, dehumanizes people, and contributes to
punitive and discriminatory actions aimed primarily at immigrants and communities of color. Jennifer Kabbany, UC Berkley Student Government Bans
Term Illegal Immigrant, The College Fix (Nov. 8, 2013), http://www.thecollegefix.com/post/15260/. Oh yes, and in case you havent yet been informed,
peanut butter and jelly sandwiches, long a staple in school kids lunch-boxes,
have now also been determined to be racist! Nathan Harden, Peanut Butter and
Jelly Sandwich is Racist, Says Portland School Official, The College Fix (Nov.
21, 2013), http://www.thecollegefix.com/post/15414/. Then theres Duke University where speech suppressionists have decided that any language that delegitimizes homosexuality, such as phrases like Man Up, Thats So Gay, or
Dont Be a Pussy, and words like Tranny and Bitch should be banned
just part of the progressive You Dont Say movement. Claire E. Healey, Man
Up, Dont Be A Pussy Labeled Offensive Language at Duke University, The College Fix (Apr. 28, 2014), http://www.thecollegefix.com/post/17212/. As
MSNBCs Ed Schultz sees it, opposition to raising the minimum wage is also
obviously racist, as is any reduction in food stamps, opposition to Obamacare,
or Medicaid expansion. MSNBCs Ed Schultz: GOP not raising minimum wage is
racist, Examiner (May. 2, 2014), http://www.examiner.com/article/msnbc-sed-schultz-gop-not-raising-minimum-wage-is-racist. For more examples, see
Andrew Stiles, Whats Racist, Whats Not (As of Friday, Oct. 3, 2014), The Washington Free Beacon (Oct. 3, 2014), http://freebeacon.com/blog/whats-racist-whats-not-as-of-friday-oct-3-2014/.
261
nents may be to avoid falling afoul of the oense, have commonly been assailed as racist, so often that, as noted above,
the word carries no precise meaning other than as a weapon
in the so-called culture wars. The same is true of homophobia. Simply opposing same-sex marriage has led people
to be targeted as homophobes, as has even the most anodyne opposition to any part of todays gay agenda. Even
changing the lyrics in a Christmas song has been declared to
be homophobic.324 Traditional arguments for heterosexual
relationships have been labeled heterosexist and homophobic. Lukewarm supporters of gay rights have been charged
with mere toleration, as opposed to active support. Apparently, the former signals insucient enthusiasm for the
identities and agendas of LGBTers. Similar claims have been
leveled against Islamophobes, whose expressions may question the idea that Islam is a religion of peace, link Islamic
texts or Muslims to terrorist acts, or simply suggest cutting
back on immigration from Muslim-dominated countries.
Such speech is labeled hate speech by those who are often either Islamophiles or simply fearful of being labeled Islamophobes themselves.325 The long and the short of this is that
324
Hallmark Faces Backlash For Changing Lyric From Gay To Fun in Deck The
Halls, CBS St. Louis (Nov. 1, 2013), http://stlouis.cbslocal.com/2013/11/01/hallmark-faces-backlash-for-changing-lyric-from-gay-tofun-in-deck-the-halls/.
325
Films screening sparks religious controversy, CBC Manitoba (May. 29, 2016),
http://www.cbc.ca/news/canada/manitoba/film-s-screening-sparks-religiouscontroversy-1.600325. Moreover, unlike homophobia, which obviously is not
rooted in fear of violence by homosexuals, the only thing phobic about Islamophobia is the very real fear generated by just over 28, 758 terrorist attacks
by denizens of that religion since 9/11. That this fear should be called irrational by Waldron and others of the same mindset is nothing short of absurd.
262
Mozilla CEO Brendan Eich was forced to resign in 2014 after being subject
to torrents of abuse from gay rights activists, many of whom were among
Mozillas workforce. His crime? He donated $1,000 in support of Proposition 8
in California which outlawed gay marriage. He obviously was unaware that the
gay marriage issue was settled science. In any event, this was another fine example of libertarian fascism: intolerance in the name of tolerance, exclusiveness in the name of inclusiveness, and uniformity in the name of diversity.
Abby Ohlheiser, Mozillas CEO Resigns Following Criticism of his Anti-Gay Marriage Donation, The Wire (Apr. 3, 2014), http://www.thewire.com/technology/2014/04/mozillas-ceo-resigns-following-criticism-of-his-anti-gay-marriage-donation/360132/. And then there was that same kind of tolerance
LGBTers displayed in their Chick-fil-A actions in 2012. Chick-fil-A same-sex
marriage controversy, Wikipedia, http://en.wikipedia.org/wiki/Chick-filA_same-sex_marriage_controversy.
263
Of course, if we follow Waldrons reasoning, labeling people as racists, sexists, homophobes, or Islamophobes these days surely should constitute an assault on their claims to equal citizenship. However, despite the assault, dont
count on him agreeing that that sort of speech should be suppressed. Again, as a
double-standard suppressionist, it all depends on who says what to whom.
264
As happened, for example, when low and high ranking officials in the IRS
targeted the applications of Tea Party and other conservative groups for tax
exempt status while permitting pro-Obama organizations applications a quick
OK. Many of the questions these corrupt officials wanted answered directly infringed the free expression rights of those targeted.
265
without running afoul of the law, and so they would reasonably tend to avoid saying anything on controversial issues that
even remotely could be interpreted as hateful. Moreover, the
same vagueness that troubles the speaker also troubles law
enforcement ocials. They have to make the same judgments as speakers as to whether any particular statements violate the statute. And how are they to do so? Presumably, in
considering any particular putative oense, they must first
decide whether the words uttered breach the statute, and if
so, whether they were intended by the speaker to create the
problem the law was designed to rectify. In this light, Waldron seems particularly enamored of the United Kingdoms
Public Order Act 1986 which, in his words,
prohibits the display of any written material
which is threatening, abusive, or insultingif its display is associated with an intention to stir up racial hatred. No oense is committed if the same
material is not presented in a threatening, abusive, or insulting manner, or if the person concerned did not intendthe written material, to
be, and was not aware that it might be, threatening, abusive, or insulting. (190, emphasis in original)
This statute is certainly more speech protective than the various human rights statutes that dot the provinces of the Canadian landscape,329 but it is not without serious inroads on
329
But see Chapter IX, which suggests that recourse to such commissions is becoming a useful substitute for prosecutions under the Criminal Code. See, e.g.,
266
Ezra Levant, Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights (McClelland & Stewart 2009)
[hereinafter Shakedown].
330
Some might here object that we could use a reasonable person, or even
something like a reasonable victim standard, but such standards, though ostensibly objective are notoriously subjective. See, e.g., Mayo Moran, Who is the
Reasonable Person?, 14 Lewis & Clark L. Rev. 1233 (2010). See also Mayo Moran, Re-thinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford University Press 2003).
267
332
Speech Acts and the First Amendment, supra note 287, at 17. To determine the obscene from the not obscene, Canada has rejected the average person standard of American courts in favor of a community standards of tolerance test in which What matters is not what Canadians think is right for
themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it. R v Butler [1992] 1 SCR 452 at 577,
595, quoting Towne Cinema Theatres v The Queen, [1985] 1 SCR 494 at para 34.
Unfortunately, this test not only heaps paternalism on top of subjectivity; it
also adds a strong dose of incoherence as well since on its logic all Canadians
may conclude an expression is both obscene and not obscene.
333
In Canada, human rights tribunals can convict alleged hate speech offenders
on a basis far less strict than specific intent. The test is whether a reasonable
person, aware of the context and circumstances, would view the expression as
likely to expose a person or persons to detestation and vilification on the basis
of a prohibited ground of discrimination. Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11, [2013] 1 SCR 467 at para 59 [Whatcott]. Even the
intent provision in its hate speech law (s. 319(2)), has been interpreted to be
satisfied by a showing of willful blindness, a standard much lower than, and
more easily satisfied than, specific intent. See R v Harding (2002) 57 OR (3d).
For years, some mainstream Canadian Jewish groups, and even a law commission in 1986, attempted to cashier the intent provision altogether. Moreover, it
is difficult to understand Waldrons commitment to a specific intent standard
when he believes (1) that the harm so heavily outweighs the speech interest; and
268
269
as an exercise in constructive tension. The problem, then, is: how does a blunt instrument like
the criminal law distinguish between destructive
hatred and constructive tension?334
An intent to stir up hatred is not something that is obvious, unambiguous, and unidirectional. Even the most evenhanded application of hate speech laws will inevitably produce investigations and prosecutions that might seem reasonable to the police but are contrary to the laws true purpose.335
Nor does the term abusive do anything other than
exacerbate the vagueness problem. Whether or not an expression is abusive or uttered in an abusive manner is so
utterly subjective as to render the term almost boundless. Is
334
When Freedoms Collide, supra note 190, at 42. In terms of the vagueness
surrounding the term hatred, Borovoy recently writes nothing has changed.
A. Alan Borovoy: Still no clarity over what constitutes hate speech in Canada, National Post (Dec. 15, 2014), http://fullcomment.nationalpost.com/2014/12/15/a-alan-borovoy-still-no-clarity-over-what-constituteshate-speech-in-canada/.
335
Borovoy lists examples such as the arrest of two young men in Toronto for
yelling Yankee Go Home at a Shriners parade; the prosecution and conviction of two French Canadian nationalists who had distributed anti-French
material in order to create pro-French sympathy; the investigation of Toronto libraries for carrying Leon Uris The Haj, because of its depiction of Arabs; the attempt by Canadian border officials to prevent admission into Canada
of a film sympathetic to Nelson Mandela; and the investigation of the anticommunist film Red Dawn! When Freedoms Collide, supra note 190, at 4243.
270
336
As was stated in a flyer by a man charged with violating Saskatchewans Human Rights Code. Whatcott, supra note 333.
337
As did writer Mark Steyn for merely quoting the good Norwegian Mullah,
Omar Kreker, and getting taken to a human rights tribunal for doing so. Andrew Bolt, Dont quote the mullah. Or else, Herald Sun (Jan. 29, 2008),
http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/dont_quote_the_mullah_or_else/desc/P0/. See Mark Steyn, Lights
Out: Islam, Free Speech And The Twilight Of The West (Stockade
Books 2009) [hereinafter Lights Out]. For more on the Steyn case, see
Chapter IX.
338
For example, the Dar al-Hijrah Mosque in Church Falls, Virginia (The Investigative Project on Terrorism, at http://www.investigativeproject.org/case/417) recently accorded commendation by the Virginia Legislature
for promoting cooperation, tolerance, and mutual understanding among different faiths. Robert Spencer, Virginia State Legislature commends mosque with
jihad terror links, Jihad Watch (Mar. 17, 2014), http://www.jihadwatch.org/2014/03/virginia-state-legislature-commends-mosque-with-jihadterror-links.
271
Holocaust? That would depend on what we mean by exaggerate. Moreover, many Blacks, Ukrainians, Armenians, and
even Aboriginals have said so, not just anti-Semites, in their
attempt to get their own alleged Holocausts recognized as
just as real and important as that of European Jews.339
Again, abusive is a term that is so encompassing you
could drive a truckload of Kiwis through it. And what about
distinguishing an abusive manner from one that is not?
How is one to determine this? According to the standard of
civility of a Mary Whitehouse? Or that of a Dan Savage? Or
even that of a fiery Jew-hating Imam? As Justice Potter Stewart said about the attempt to determine hardcore pornography: I shall not today attempt to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly
339
See Graeme Hamilton, Canadas human rights museum was meant as a unifying
force, but, so far, has only inspired criticism, National Post (Sept. 27, 2013),
http://news.nationalpost.com/2013/09/27/canadas-human-rights-museumwas-meant-as-a-unifying-force-but-so-far-has-only-inspired-criticism/. Waldron seems to favor including Holocaust denial in being covered by his statute. Waldron at 29. This, of course, would be to criminalize an opinion, and it
is interesting to note how far a statute penalizing Holocaust denial might reach.
Beginning in 1990, denying (or minimizing the seriousness of) the Holocaust
became a crime in France, GermanyAustria, Belgium, the Czech Republic,
Lithuania, Poland, Slovakia, and Switzerland. In June of 1995, Bernard Lewis,
a leading scholar of Islam, was convicted by a French court of denying that the
killing of a million-and-a-half Armenians by Turkey in 1915 constituted genocide, saying instead that they were the brutal product of war. Reflections,
supra note 322, at 91-92. Moreover, the link between denying the Holocaust
and libeling Jews is anything but direct.
272
doing so. But I know it when I see it, and the motion picture
involved in this case is not that.340 The same degree of subjectivity might be attributed to abusive.
Some alleged insults may also double as compliments at least to some people. Is it an insult or a compliment
to say That nigger sure can dribble!? Depending on who
says it, a group of black ballers on a playground would most
certainly consider it a compliment.341 A white policeman unaware of black basketball lingo might well think it an insult
that requires an investigation. Is it an insult or a fact to say
that Blacks IQs are consistently 15 or so points below
Whites?342 Is it an insult, a compliment, or a fact to say
340
341
Race and intelligence, Wikipedia, http://en.wikipedia.org/wiki/Race_and_intelligence. As Samuel Walker notes, comedians like Lenny Bruce, George Carlin, Richard Pryor, and Eddie Murphy all used nasty and vulgar language in
their performances. Carlin used to open his performances by asking Any spics
here tonight? Any Kikes? Any niggers? Walker, supra note 26, at 109. It is an
273
Gays like young boys like you? And what about: Islam is a
religion of war? Or The only really sympathetic and original
thing in America is the niggers, who are charming.343 The
point is that, just as with threats and abuse, what constitutes an insult to some is often not so to others; threats,
abuse, and insults are all context, as well as person, dependent, and, thus, irredeemably subjective.
Finally, what is the precise dierence between the
terms insulting and abusive? In January of 2013, the British Home Secretary announced that the government would
remove the word insulting from the oence described in
Section 5 of the 1986 Act. The reason for the action, she said,
was that the Director of Public Prosecutions could not
identify any [cases] where the behaviour leading to a conviction could not be described as abusive as well as insulting.
Thus, the word insulting could safely be removed without
integral part of Chris Rocks comedy act to distinguish between black people
and niggers. eyecoin, Black People vs N***as, YouTube (Apr. 2, 2010),
https://www.youtube.com/watch?v=51vFbsZkhXU. Even the President, apparently, is on board. At the 2016 White House Correspondents Dinner, and after
saying how happy he was that a black man was finally elected President, black
comedian Larry Willmore topped off his routine with the following compliment: Yo Barry, you did it my nigga. Matt Wilstein, Larry Wilmore Responds
to N-Word Uproar: Obama Knew What I Was Talking About in WHCD Speech,
The Daily Beast (May 3, 2016), http://www.thedailybeast.com/articles/2016/05/03/larry-wilmore-responds-to-n-word-uproar-obama-knewwhat-i-was-talking-about-in-whcd-speech.html.
343
1917 letter from John Maynard Keynes to his lover, Duncan Grant. LongRun Silence, SteynOnline (June 5, 2013),
http://www.steynonline.com/5603/long-run-silence.
274
275
In the following colloquy, apart from the occasional sic and the statement
To the Defendant, all commentary enclosed in square brackets constitutes
interpolations of my own.
276
277
278
The Court: So, your question is, would it be a breach of probation or would it be the subject of a new charge? Because, if he goes beyond, [Beyond what? How is the defendant to know the alleged distinction between legitimate expression and literature of this nature
when the Court itself cannot formulate any coherent
statement of it?] obviously, its a new charge...[To the
defendant] Do you understand? Its been a bit convoluted in
the conversation, [Really?] but you understand the terms?
The Defendant: I get the gist of it. [The gist of what?]
The Court: You get the gist of it.
The Defendant: My lawyer wi! explain every detail. [As far as
the distinction between protected and unprotected
expression goes, dont count on it! Youd be better o
saying nothing whatever.]
The above colloquy between the judge, the prosecution, the defense, and the defendant perfectly illustrates the
main argument of this chapter. The judge admits the conversation about the restrictions on expression was a bit convoluted and asks the defendant whether he understands it.
The defendant says he gets the gist of it and is confident
that his lawyer will be able to explain every detail. And
while it surely is true that his lawyer will be able to explain
most of the details of his probationary conditions, it is decidedly not likely that he will be able to explain precisely what
Harding is and is not free to say during his probationary period. Both the Court and the prosecution acknowledge that
the Courts directive not to publish and distribute the kind
of materials that are the subject of this matter is a little
vague.347 Perhaps understanding that any attempt to clarify
347
Compare Waldrons claim that we can legitimately substitute for the most
egregious forms of group libel views, values, and attitudes which are similar
to them. Waldron at 172.
279
281
(201-02) Noting that there were some notorious speech prosecutions under the Alien and Sedition Acts, the World War
I Espionage and Sedition acts, and later, the Smith Act, Waldron says there is something to it [bad motivations]but
not much. In any event, he asks: why would anyone think
this was true of hate speech legislation, or laws prohibiting
group defamation? Why is this an area where we should be
particularly mistrustful of our lawmakers? Hate speech legislation, he says, is dierent from these previous censorial efforts because it is used to protect minorities, not to protect
the wounded vanity of high ocials or to suppress unpopular views. (201-02)349
349
282
There are three points to be made in reply to Waldrons claims. First, no one I know has ever said that governmental interference is always likely to be motivated by
the flaws he lists above. The point, as free speech theorists
suspicious of governmental censorship historically have argued, is that permitting government ocials power to determine the content and viewpoint of political expression creates opportunities for less than pure motives to exert themselves.350 The point is not that governmental ocials are always likely to abuse their powers, but they have many times
pionage in America (Yale University Press 2000). See also Herbert Romerstein & Eric Breindel, The Venona Secrets (Regnery History 2000).
Moreover, Waldron does not consider the possibility that it was precisely because of the repressive legal and political measures taken by various U. S. administrations and court decisions that communism never got to be the danger
communists and fellow travelers surely wanted it to be.
350
Again, as I write, the IRS, Benghazi, Associated Press, Health and Human
Services, EPA, and Fast and Furious scandals from 2010 to 2013 should be
enough to validate the point, particularly the first and third which carried serious implications for the freedom of speech and the press. See generally IRS targeting controversy, Wikipedia, http://en.wikipedia.org/wiki/2013_IRS_scandal.
See John D. McKinnon, Republicans Turn Up Heat Over Missing IRS Emails,
The Wall Street Journal (June 24, 2014), http://www.wsj.com/articles/former-irs-worker-sheds-little-light-on-agencys-lost-emails-1403626641.
See also David Morgan, Another WH Scandal in HHS Fundraising?, Fox Nation (May 21, 2013), http://nation.foxnews.com/hhs/2013/05/21/another-whscandal-hhs-fundraising; Stephen F. Hayes, The Benghazi Scandal Grows, The
Weekly Standard (May. 20, 2013), http://www.weeklystandard.com/articles/benghazi-scandal-grows_722032.html; Reince Priebus, Where's Obama as
IRS, EPA compete for most bizarre scandal in Washington?, Fox News (June 7,
283
in the past, and the possibility that they will also do so in the
present and future is too risky to countenance; particularly
given the importance of free expression of political viewpoints to democratic discourse, and particularly, as well,
given the threat posed to such discourse by state ocials
armed with power to intervene in areas that are as highly
controversial as they are partisan.
Second, Waldron says he is not sure why we should
worry about the misuse of government power in the area of
speech any more than in any other area of governmental action. The answer is that we should worry about it in all cases;
however, the power to censor speech is particularly odious in
a democracy because speech is the fundamental freedom on
which all other freedoms rest. If we are not free to comment
publicly and openly on the issues that are most important to
us, the legitimacy of the government, which rests on the consent of the governed, is erodedcertainly to the person being silenced, whether entirely or, as Waldron admits, certainly by degrees (191).351 As A. Alan Borovoy put it, speech
is the grievance procedure of democracy;352 it is what per-
See supra note 317. See also Dworkins Reply to Jeremy Waldron in Hate
Speech, supra note 65, at 341.
352
284
mits people to register their dissent from government policies, and, thereby, to distinguish a democracy from some or
other totalitarian enterprise. The liberty to say publicly what
you think is democracys answer to regimes in which no effective outlet other than violence exists to produce change.
Hence, government ocials who have axes to grind and misuse their power to eectuate a corrupt speech situation are
much more dangerous than they would be if their corruption
was limited to non-speech areas like, say, housing policy or
welfare reform where the damage they might do is restricted
by the particularity of the issue. Moreover, the danger of
placing content or viewpoint censorship laws in the hands of
corrupt or misguided ocials is not just that these laws enable such ocials to use their power to penalize dissenters
and, thereby, disable democratic legitimacy, but they permit
them to protect other non-speech interests they and their
comrades may share as well.
Third, whether hate speech laws are less likely to be
abused than sedition and illegal advocacy statutes because
the former protect allegedly vulnerable minorities is not
clear. I have already expressed my thoughts on criminal anarchy and illegal advocacy statutes and have argued that their
logical structures and rhetorical postures are identical in ways
to those of hate speech statutes.353 However, Waldrons
group libel statute diers from generic hate speech laws in
that the latter worry mostly about violence and social dislocation while the former addresses, he says, social status and assurance anxieties. Hence, he believes we should not worry
about a majority oppressing the expression of an unpopular
353
285
minority by means of group libel laws because these laws exist to protect, not to oppress, minorities.354 In every advanced democracy where they are given the opportunity, he
writes, majorities legislate to put this sort of protection in
place because they care about the plight of minority communities.355 And, by and large, this legislation is administered responsibly. (202-03)356 Whether hate speech laws are truly ad-
354
Waldron seems to believe that only if one is willing to censor hate speech
does one really care about the plight of minority communities. Waldron at
202-03. Such self-righteous nonsense is not uncommon in suppressionist academic circles today.
356
Waldron at 202-03. James Kalb discusses one of these responsibly administered cases: the High Court in Britain [in 2004] upheld the conviction and
firing of an elderly preacher who held up a sign in a town square calling for an
end to homosexuality, lesbianism, and immorality and was thrown to the
ground and pelted with dirt and water by an angry crowd. The Tyranny of
Liberalism (Intercollegiate Studies Institute 2008) as quoted in David Gordon, The Harm in Hate-Speech Laws, The Mises Review (May 30, 2012) (book
review) at http://mises.org/daily/6070/.) See Melanie Phillips, The World
Turned Upside Down: The Global Battle over God, Truth, and
286
Power 289 (Encounter Books 2010). Moreover, French authorities even went
so far as to attempt to get the European Parliament to lift the immunity accorded their members so Marine Le Pen could be prosecuted for simply (if stupidly) comparing the increased presence of Muslims in France to the Nazi occupation of World War Two. Daniel Hannan, MEPs vote to have Marine Le Pen
prosecuted for hate speech, The Telegraph (July 2, 2013), http://blogs.telegraph.co.uk/news/danielhannan/100224380/meps-vote-to-have-marine-lepen-prosecuted/.
There is as well the threat of prosecution to chill expression. Three separate
times Brigitte Bardot was taken to court (counting appeals actually six times)
for making statements critical of the slaughtering of animals during the festival
of EID along with other statements construed to be defamatory of Muslims.
Commenting on the political import of Bardots travails, Erik Bleich says: It is
now illegal to argue that the large Muslim immigrant presence is bad for France
if you do it in a way deemed to provoke discrimination, hatred or violence. You
can believe it, but you cannot say it, at least not too sharply or you might be
prosecuted for it. The Freedom to be Racist?, supra note 281, at 29-34.
Again in France, author Michel Houellebecq was charged with religious abuse
and defamation for saying in an interview: the stupidest religion is Islam.
When you read the Koran youre appalledappalled. Then there is the case of
French writer, historian, and theologian Paul Giniewski, who went before
five tribunals before he was finally exonerated for saying the fulfillment of the
Old Covenant in the New, the superiority of the latterled to anti-Semitism
and prepared the ground in which the idea and implementation of Auschwitz
took seed. Pascal Mbongo, Hate Speech, Extreme Speech, and Collective Defamation in French Law, in Extreme Speech and Democracy, supra note 87, at
231.
287
ministered responsibly is certainly a matter of some dispute. I have already shown that Canadas hate speech law
certainly does not qualify, and I shall later show where, as in
Canada, there are human rights commissions and tribunals,
the standard of justice is set even lower. Because it is, grievance groups find these administrative outlets a cheaper and
Nor, in France, does being a state official protect one against the deployment
of hate speech laws. Christian Vanneste was convicted of abuse directed towards homosexuals for saying, during newspaper interviews, that homosexuality was inferior to heterosexuality, and that homosexuality would be dangerous for humanity if it became universal. Id. at 230. The first is pure opinion
while the second is obviously true! Meanwhile, Edgar Morin and three other
writers were taken to court three times before finally being acquitted on racial
defamation charges for saying, inter alia, that Jews were a contemptuous people taking satisfaction in humiliating others, specifically Palestinians. Id. at
234. Dieudionne MBala, a French comedian and activist, was also taken to
court three times before finally being convicted for saying in an interview:
Jewish, its a sect, a scam. Id. at 235. Further along on the French Front, our
own Bobby Dylan has been charged with inciting hatred against Croatians for
saying in an interview: If you got a slave master or Klan in your blood, Blacks
can sense that. That stuff lingers to this day. Just like Jews can sense Nazi
blood, and the Serbs can sense Croatian blood. While his words are terminally
stupid, Dylan faces one year in prison and a fine of 45,000 Euros if found guilty.
Adam Bychawski, Bob Dylan charged with hate crime in France, nme (Dec. 3,
2013), http://www.nme.com/news/bob-dylan/74194. Responsibly administered, indeed, if your intent is to silence anyone who dares speak out on controversial political subjects by subjecting those who do to serious penalties! See
Mark Steyn, The Undocumented Mark Steyn 357-61 (Regnery 2014) for
more examples of responsibly administered police state actions. For responsibly administered instances on this side of the Atlantic, see Chapter IX.
288
[H]ate speech laws do not involve putting the interests of the majority
above those of vulnerable groups. However, what if a majority thinks it is a
vulnerable group? A majority might suppress expression simply to protect
the majoritys own feelings. For example, as I write, the Israeli coalition government has given first reading to a bill that would ban the use of the word
Nazi for any purpose other than learning, documentation, scientific study or
historical accounts. It also punishes with a fine of up to $29,000 and six
months in jail for using words that sound like Nazi and that indirectly refer
to someone as an insult. The rationale offered for the law is that the use of
such concepts in public and political discourse shows blatant disregard for the
feelings of Holocaust survivors and their descendants. Luke Garratt, Israel
moves to ban the word Nazi and other references to the Third Reich other than for
education purposes, The Daily Mail (Jan. 16, 2014), http://www.dailymail.co.uk/news/article-2540581/Israel-moves-ban-word-Nazi-referencesThird-Reich-education-purposes.html. Indeed, the idea that majorities will refrain from using any means to cement their rule is one of those pleasant falsehoods that periodically captures the academic imagination.
289
well-intended state ocials will be so solicitous358 of the alleged concerns of vulnerable minorities that their suppressive eorts will end up expanding the reach of these laws,
thus, casting such a pall over social and political expression as
to render discussion and debate on controversial issues involving vulnerables almost entirely o limits. For, again, depending how broadly or narrowly one reads highly subjective
terms like threatening, abusive, or insulting found in
Waldrons own favorite, the British anti-hate speech statute,
an enormous amount of expression that should not be targeted may well be captured. Second, contrary to Waldron,
far from being motivated by undue responsiveness to majoritarian prejudice, anger, or panic, the worry is that governmental ocials will be so responsive to vocal minority
prejudice, anger, and panic that they will ignore the free
speech rights of others as well as the general interests of the
society as a whole.359 Ignoring all of the sordid aspects of the
358
Or, perhaps, so intimidated by a social media lynch mob that they would
charge a man with inciting racial hatred for tweeting I confronted a Muslim
woman in Croydon. I asked her to explain Brussels. She said Nothing to do
with me. A mealy-mouthed reply. Brendan ONeill, How about we defend European values by not arresting people who say stupid things? The Spectator (Mar.
24, 2016), http://blogs.spectator.co.uk/2016/03/how-about-we-defend-european-values-by-not-arresting-people-who-say-stupid-things/.
359
The fear of ruffling Muslim sensibilities (and, likely, damaging their own career interests) led Army officers, who knew that Major Nidal Hasan harbored
extremely hostile pro-Islamist and anti-American views, to stifle themselves
and, thus, enabled him to kill thirteen American Army soldiers and wound
thirty more at Fort Hood in November of 2009. Michelle Malkin, Major Hasans Death Spree, National Review (Aug. 6, 2013), http://www.nationalreview.com/article/355229/major-hasans-death-spree-michelle-malkin. Indeed,
290
The mainstream media plays a role here also. No better example can be offered of this corrupt spectacle than the so-called Trayvon Martin affair in
which a 17 year-old black male was shot and killed by a Hispanic male, George
Zimmerman, after Martin punched him and broke his nose, and then beat his
head on a cement sidewalk. Licensed to carry a firearm, Zimmerman said he resorted to using it to prevent Martin from killing him. Despite media reporting
biased against him, a unanimous jury agreed, exonerating Zimmerman after a
thoroughly despicable prosecution.
291
292
361
Above at p. 71.
362
293
always executes blacks more than whites. Scientific research that examines white deficiencies will be permitted.
Research that examines minority failings will be prohibited.363 Whether or not legislators and courts actually comply, such are the speech policy implications of double-standard censorship arguments.
Thus, moving away from the targeting of epithets and
hard-core insults alone, Wolfson says, involves monumental
thought control. For [u]nless we limit censorship to the
simple epithet, such as you are a Kike, and budge not a whit
from that simple category, the reach and scope of censorship
will be enormous. But no meaningful doctrine that accepts
the need to limit First Amendment protection in the interest
of chilling sexist and racist speech can be successfully limited.364 On the other hand, as I have earlier argued, censoring only the surface epithet is to leave the bulk of racist and
sexist expression which exists under the surface untouched,
and will, in any case, operate to ensure that alleged racists,
sexists, homophobes, and Islamophobes will simply clean up
and moderate their language to make it more acceptable
and, therefore as well, more persuasive.
Apart from the futility of the suppressionist enterprise, I believe Waldron has no idea how this double-standard argument grates on many people, majority as well as nonrent-seeking members of minority groups, and how destructive it is to the idea that the law should protect all persons
equally, independent of race, religion, ethnicity, sex, or sexual
orientation. It operates as a kind of preferential treatment
363
Id. at 29-30.
364
Id. at 30-31.
294
policy for minorities and carries all the assumptions and resentment that such policies produce in non-speech-related
areas. The end-result, unsurprisingly, is to generate even
more cultural resentment. Of course, the remedy for this
double-standard is not to expand the protection of such statutes to everyone regardless of their statusthough if the
laws were strictly enforced, such even-handedness would certainly address the favoritism defectit is to eliminate the divisive idea of protected identity classes altogether and, thus,
to reject the very idea of group libel.
295
n
IX
Canadas Hate Speech Laws:
Responsibly Administered?
As noted earlier, Waldron believes that Western hate
speech laws by and large have been administered responsibly. (202-03) Canada is one of those advanced democracies
that have hate speech laws. In fact, depending on how expansive they are read, it has at least fifteen of them. Apart from
Sections 391(1) and (2) of the Criminal Code which permit
sentences up to two years in jail for inciting or promoting
hatred against an identifiable group,365 Canadian territories
and provinces have established 13 human rights commissions
or tribunals,366 which are empowered to protect against discrimination and to police various hate speech provisions that
365
Criminal Code, RSC 1985, c C-46, s. 318 (4). Namely, any section of the
public distinguished by colour, race, religion, national or ethnic origin, age, sex,
sexual orientation, or mental or physical disability.
366
Luke McNamara, Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada, 38 U.B.C.L. Rev. 1, 1-82
(2005).
298
likely to expose a person or class of persons to hatred or contempt. The claim was that Levants publishing of the cartoons depicting Mohammed in an unflattering and negative
light exposed Muslims in Alberta to hatred and contempt.
Levants defense was that the cartoons were newsworthy, and
that, in any case, the government had no right to question
him about his political beliefs.
What about the free expression of opinion? Like virtually all of the provincial codes, Albertas has a rider saying
that nothing in the Act shall be deemed to interfere with
the free expression of opinion on any subject, which might
well be true if the words free, expression, opinion, and
any subject were not preceded by the word the which effectively permits commissioners to eliminate the force of the
rider altogether: the freedom of expression is simply read
to exclude whatever expression the commissioners think is
beyond the pale.
Two years after launching his complaint, the complaining imam eventually dropped the case, however, not before forcing Levant to spend two years of his life defending
himself and paying out over $100,000 in legal costs. Soharwardy, however, never paid a cent because all of the costs of
such inquisitions incurred by government investigators and
prosecutors are, happily enough for him, borne by taxpayers.
Nor could Levant sue Soharwardy for malicious prosecution
because Albertas Human Rights codes anti-retaliation
provision prevents it!368 Levant got away primarily because he
was relatively well-o, well-known, and skilled in the use of
the media. He smartly filmed his interrogation and put it on
368
299
Rebel Media, Ezra Levant asked: What was your intent (2008), YouTube
(July 29 2015), https://youtu.be/CUAQGqoQSrY. See also Rebel Media, Details of the hate speech complaint, YouTube (July 29, 2015),
https://youtu.be/SdaGfnE4E60 and https://youtu.be/cnFuhlWcLvg.
300
on the ground that the views expressed were not of an extreme nature. However, the British Columbia Human
Rights Tribunal (BCHRT) gladly took up the challenge. The
charge against Steyn was that he published flagrantly Islamophobic statements in his book and some articles which
were said to violate the human rights of British Columbian
Muslims. As one piece of evidence, the complainants alleged
that Steyn wrote that within Europethe number of Muslims is expanding like mosquitoes. Though no one should be
fined or imprisoned for saying so, the impugned words were
but a direct quote from the great Norwegian imam, Mullah
Krekar. So simply reproducing accurately the words of an Islamic authority was considered evidence of Islamophobia!
Moreover, the complaining surrogateswhom Steyn
referred to as sock puppets because they were fronting for
their principal, one Mohammed Elmasery, then Head of the
Canadian Islamic Congress (CIC)also objected that Steyn
made light of the insipid CBC television show Little
Mosque on the Prairie. Not only that, but he was also accused, inter alia, of attacking multiculturalism; of supporting
the recognized Islamophobe Oriana Fallaci; of attacking
human rights codes and other laws that are meant to protect
Muslims; of exaggerating the persecution of Christians in
predominantly Muslim countries as well as much more of exactly the same nature. The charges brought by the infamous
sock puppets were all of the same nature, and were so ludicrous as to be risible and betokened little understanding of,
or even care for, the place of free expression in a free and
democratic society.370
370
You can find their complaints at http://www.safs.ca/issuescases/Report_on_Macleans_Journalism.pdf. And you can find Steyns various responses
in Lights Out, supra note 337.
301
Like the CHRC, the BCHRT dismissed the complaintbut only after a five day hearingon the ground that
Steyns writing and Macleans publishing of it were not
likely to expose Muslims to hatred or contempt, though not
without claiming that Steyns article contained factual inaccuracies, that it played on common Muslim stereotypes,
and that it attempted to rally public opinion by exaggeration
and causing the reader to fear Muslims.371
Can we say that the Levant and Steyn cases were administered responsibly? Why certainly, if you believe the
phrase includes being legally hauled before tribunals where
human rights commissioners are generally human rights activists who sometimes double as investigators as well as
prosecutors or where a mere high school diploma and the
right political connections qualifies one to be an adjudicator;
or where partisan judges can also work as prosecutors, and
where human rights workers sometimes pose as racists on
extremist websites to entrap the unsuspecting into making
culpable statements; or where you are presumed guilty and
the burden is on you to prove your innocence; or where warrants are not always required for investigators to enter your
property, seize your computer and view all your papers in order to build their case; or where hearsay statements are regularly admitted at trial and discovery can be a one-way process
favoring only the complainant; or where complainants are
not required to prove harm or malicious intent; where
truth and fair comment are not acceptable defenses;
where normal courtroom rules can be suspended and surro371
302
gates are permitted to give evidence for the actual complainants; and where respondents may be deprived of the right to
face their accusers!372
Again, their high profile status and relatively deep
pockets were more than likely the reasons Levant and Steyn
won their cases. As a rule, Canadas kangaroo courts are more
circumspect in choosing their targets. They succeed in getting convictions because they practice their Ka,aesque justice against the poor, the downtrodden, and, yes, the real
vulnerables (the politically incorrect) among us in low-visibility settings generally well out of the media spotlight. In my
view, Levant accurately characterized the normal goings-on
of these commissions and tribunals as a turkey shoot for the
government, with poor, intimidated targets fighting against
the unlimited resources of the state.373 The one good thing
to have come out of these trials is that Section 13, the federal
hate speech section of the Canadian Human Rights Act, has
been consigned to the infamous museum of antiquities.374
372
See generally Shakedown, supra note 329, at chapter two. See Lights Out,
supra note 337. See also John Carpay & Carol Crosson, From Bad to Worse: Examining Restrictions on Speech and Procedural Fairness in Human Rights Legislation
in fourteen Canadian Jurisdictions, Justice Centre for Constitutional
Freedoms (Mar. 2012), http://www.jccf.ca/images/From%20Bad%20to%20Worse%20-%20Executive%20Summary.pdf.
For a dissenting view see Susan G. Cole, This Hero's a Hoax, NOW (May 6,
2009), https://nowtoronto.com/news/this-heros-a-hoax/.
373
374
However, as noted earlier, the ten provincial and three territorial Human
Rights Commissions are still in place. As I write, the Canadian government is
poised to pass amendments to unveil gender protection legislation which
303
No doubt Waldron would respond to these irresponsible administration charges that his group libel statute is to
be part of criminal rather than human rights law and, therefore, suers from few of the irregularities that plague the latter. For example, Britains and Canadas hate speech laws
have specific intent provisions which require that one must
specifically intend to promote hatred, a much more rigorous
standard for the state to surmount than the likely to expose
standard of human rights law; though it is worth noting that
in 2002 the Canadian Supreme Court accepted the weaker
reading of willful blindness as sucient to determine intent
to a hate speech charge.375 Moreover, Canadas hate speech
law requires the approval of the various provincial attorneys
general to launch a complaint, requires a presumption of innocence, and permits defenses of truth and fair comment, all
of which the various codes do not require.
But heres the kick: because success is easier to obtain
from human rights commissions and tribunals, it makes sense
for complainants to proceed by human rights law rather than
the Criminal Code. Referring to his own travails, Mark Steyn
would amend the Human Rights Act to make it an offense to discriminate on
the basis of gender identity and expression. It would also amend the Criminal
Code (s. 319.2) to include these as protected categories, and it would amend
hate crime provisions to make them aggravating factors in sentencing. All of
these changes rest on a conception of gender identity which is determined by
what one thinks and desires ones identity to be. Imagine all the fun (and funds)
lawyers are poised to receive as a result of such deep thinking!
375
304
376
377
Judge finds Ahenakew not guilty in 2nd hate trial, CBC News Saskatchewan
(Feb. 23, 2009), http://www.cbc.ca/news/canada/saskatchewan/judge-findsahenakew-not-guilty-in-2nd-hate-trial-1.802574.
305
n
X
The Slippery Road From
Dignity to Offense
As Waldron says throughout his book, the burden of
his argument for a group libel statute is to ensure that members of vulnerable minorities are accorded dignity, considered as their basic entitlement to be regarded as members of society in good standing. This assurance, he argues,
is not just the obligation of government ocials; the obligation extends to private individuals as well. Private individuals
and state ocials are to work together to protect minorities
from group directed attacks which proclaim that all or most
members of a given group, by virtue of race or some other ascriptive characteristic, are not worthy of being treated as
members of society in good standing. Dignity, then, is a
status sustained by law in society in the form of a public
good. (105-06)
While Waldron wishes to prevent attacks on dignity,
he says that the aim of his group libel statute is not to protect minorities from simple oense. However, whether it is
plausible, other than in theory, to distinguish attacks on dignity from those giving oenseespecially in the context of
an inflamed political climateis another matter indeed.
Dignity concerns status while oense concerns feelings; the one is objective, the other is subjective. So to protect people from oense or from being oended is to protect
them from a certain sort of eect on their feelings. And that
is dierent from protecting their dignity and the assurance of
their decent treatment in society. (107) There! Thats simple, isnt it? Well, not exactly, as Waldron himself is forced
to admit, since hurt feelings occasioned by oense often accompany attacks on ones dignity and, thus, complicate
things. Of course a libel is wounding, and people are greatly
distressed when they are defamed. Nevertheless, Waldron
argues, the distress itself is not the reason for the law. The
distress is a consequence of what the law of defamation is
supposed to protect people against; it is not itself what the
law of defamation is supposed to protect people against.
(110)378
Waldron understands the complexity created by the
intermingling of oense with dignity, even as he attempts to
distinguish them. He says the emotional distress created by
assaults on ones dignity is not unimportant. Indeed, he
claims, though without any evidence to support it, or with
any particular society in mind, that minority group members
are under very considerable distress and grave fear and apprehensions about what may be done to them, what is to become of them, and how they and their family members are to
378
Unlike offense, insults to dignity are not about wounded feelings, at least
not in the first instance. Waldron at 110.
308
navigate life in society under the conditions the hate speakers are striving to bring about. (111-12)379 Nor are only minorities vulnerable to attack: for, apparently, simply detailing
the subjective and emotional aspect of attacks on dignity
leaves Waldron himself open to attacks by persons critical of
hate speech laws and who maintain with studied obtuseness,
that the laws are there simply to protect against hurt feelings.
Lucky for us, he says, we do not have to decide which
speech acts are or are not unlawful on the basis of a case-bycase analysis of the emotions of particular victims. Instead, he says, we identify categories and modes of expression that experience indicates are likely to have an impact on
the dignity of members of vulnerable minorities. Though
Waldron does not specifically identify these categories or
modes of expression, I think by the latter he means printed
versions of the threats, abuse, and insults I have already discussed, and by the former he is referring to sexist, racist, homophobic, and Islamophobic expression. If I am correct in
my assumptions, I have already registered my dissent from
much of what he says about these modes and categories.
Here, however, I wish to show that while it may be easy in
theory to distinguish attacks on dignity from those that
merely give oense, it is not so in practice, and so the attempt to narrow the statute to prohibit attacks on dignity
only will inevitably fail.
Waldron begins his excursus on racial epithets by first
stating that because verbal expression may echo over time
379
309
380
Though how one is to distinguish verbal expression that echoes over time
from that which might so echo is not clear.
381
It is noteworthy that Waldron never suggests how literally we are to take the
term permanently here, or how we are to determine whether any expressive
instance is capable of becoming a permanently damaging and permanently disfiguringfeature of the environment. Nevertheless, since he believes that
[n]obody knows when that heritage of hate and conflict is really over; [that]
old fears die hard; [that] old nightmares are never entirely put to rest; [and
that] old antipathies can sometimes be awoken, (Waldron at 153) there
seems no possible way to test his permanency hypothesis. Again, it is puzzling
how he can hold this permanency thesis, and, at the same time, peremptorily
state the fundamental debate about race is overwon; finished, with only a
few crazies still debating. Waldron at 195.
310
who profess that religion. Thus blasphemy laws which protect religious doctrine, icons, and practices are meant to protect believers from attacks which give oense whereas group
libel laws protect them from expression attacking them personally as members of a particular religion. On Waldrons argument, it is permitted to do the first but not the second.
The question is whether the distinction holds in practice.382
Waldron notes that the politics surrounding the British Religious and Racial Hatred Act of 2006 made him doubt
whether a line could be held between attacks on dignity and
giving oense in the context of Britains laws about fomenting religious hatred; but he does not think that the blurring
of this line is inevitable: In every aspect of democratic society, we distinguish between the respect accorded to a citizen
and the disagreement we might have concerning his or her
social and political convictions. And so while we may criticizeeven ridiculethe preposterous and socially dangerous beliefs and policies of the Republican Tea Party, we
are not permitted to publish a claim that their politicians
382
Austin Dacey is doubtful. Writing about the attempt to distinguish blasphemy from religious hate speech, he says: It may seem obvious that one can
abuse an icon without thereby abusing those who venerate it, and defame a
prophet without thereby defaming those who follow him. If so, then blasphemy
could be distinguished in principle from religious hate speech. Whatever the
philosophical attractions of such a view, if you descend to the scale of specific
laws and cases, the scene changes. Dacey, supra note 192, at 84. It is also not
clear how the distinction between religious beliefs and their believers compares
even in theory to racial or ethnic issues. As far as I am aware, unless one is prepared to assign them a specific racial or ethnic perspective of some sort, neither
Blacks nor, say, Hispanics can be said to have specific beliefs attached to them
as such. Nevertheless, Blacks and Hispanics are often imputed specific beliefs
and practices by those who see some gain in doing so.
311
cannot be trusted with public funds, or that they are dishonest. (120-21) On this rather odd view of personhood, I am
supposed to separate my beliefs, opinions, and values from
myself.
However, the idea that you may not suggest that politicians cannot be trusted with public funds or that they are
dishonest indicates that even Waldron has diculty distinguishing legitimate from illegitimate attacks on persons. For
if we are prevented from saying either of these things about
our politicians, or anything analogous, then our group libel
statute will have been augmented by an even more egregious
anti-sedition statute. Not a good place for any supposed liberal democrat who ostensibly deplores anti-sedition laws to
find himself!
There are more diculties. Distinguishing between
expressive attacks on a group as such from attacks on individuals as members of that group is a dicult proposition to
keep foremost in mind when what we are protecting individuals against is an attack centered around a group characteristic. (123) Nevertheless, Waldron thinks the eort is
both plausible and potentially successful as long as commentators do not distort what the law says.383 Fair enough, but
383
312
distorting the law is surely not the main problem we face. For
suppose someone says that the religious beliefs of a person
are irrational and even absurd, isnt that statement a comment on the person just as much as on his beliefs, given that
it suggests he is irrational and, perhaps, less than fully fit to
be a citizen?384 Does not a statement that Blacks as a rule
have lower IQs than Whites suggest that Blacks might be
inferior intellectually to Whites? If so, why arent such indirect statements attacks on the rights of their targets to equal
dignity and, therefore, as well, to equal citizenship? Given
what Waldron says about such claims as being both bigoted
and pass, why should they be permitted? (193-196)
Moreover, as noted earlier,385 French novelist Michel
Houellebecq was charged with religious abuse and defamation for saying that the stupidest religion is Islam. At trial,
the lawyer for one of the plaintis in the case, Dalil Boubaker, exclaimed: Islam has been reviled, attacked with
hateful words, adding that his community has been humiliatedthus transforming a comment about his religion into
a comment about his identity group, and in one easy interpre-
313
tative act, sliding from a charge of blasphemy into one of defamation.386 Commenting on Boubakers statement, Austin
Dacey suggests that it illustrates how a ready legal recourse
against religious abuse and defamation can invite accusations
that obscure the dierence between contempt for a text and
contempt for a community, and slip from Islam has been reviled to my community has been humiliated.387
Dacey raises an important point. Exactly how extensive is Boubakers community? Who does it include? And
who determines its boundaries and its membership?
When Boubaker told the court that his community had been humiliated, which community did
he meanthe community of French Muslims,
foreign-born French Muslims, European Muslims, or perhaps the entire umma? These are not
idle questions, but central matters of intense,
sometimes life and death controversy over what it
386
387
314
means to be a Muslim. Is a Muslim one who follows the five pillars of Islam, or one who lives by
sharia? What of those secular citizens born to
Muslim parentswere they members of Boubakers community? Or those devout citizens who
believed that the Quran is not the literal, inerrant
word of God, or that Islam did not need help
from the force of the Republics laws to be defended from the musings of a novelist provocateur?388
Dacey is on to something here. Simply saying that someone
is a Muslim, a Black, a homosexual, etc., is not to say what
ideological aspects of Islam, Blackness, or homosexuality,
etc., that person identifies with, how strong that identification is, or, for that matter, whether he or she identifies with
any of the tenets, claims, practices or interests associated by
others as representative of the group at all. There are dierent
degrees and kinds of group identification from individual to
individual, some with greater and others with lesser attachments to the group to which they ostensibly belong just as
there are many dierent conceptions of what ideas, practices,
etc., make one a true member of that group.
Group identification is in part factual but also in large
part normative, at least insofar as it is seen from the perspective of group libel statutes and the intentions and viewpoints
of their supporters. By assuming that individuals can be considered for legal purposes solely in terms of their membership in designated identity groups, and assuming as well that
they identify strongly with their assigned group identities,
group libel laws construct individual identities according to
what state ocials and their most extreme supporters think
388
Id. at 92.
315
Public Response to Racist Speech, supra note 43, at 2363, citing Owen Fiss,
Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 148-49 (1976):
[W]ell-being and status of individuals is related to the well-being and status of
the individuals group.
316
Boubaker, a comment about ones community and its status, thus, rendering the slide from simple oense into group
defamation a veritable avalanche. This was certainly true of
Muslim rioters during the Danish cartoon crisis of 2005. Indeed, Waldron himself says that [i]f I identify my self with
my beliefs then criticisms of them will seem like an assault
on meBetter to reserve the idea of assault on me for attacks on my person or attempts to denigrate or eliminate my
social standing. (135) Commenting on this passage, Brian
Leiter said:
If I do not identify my selfwith what I believe
about the true and the good, what should I identify it with? My height? My hair color? Surely, if
someone holds up for ridicule all my central beliefs, they are attacking me and my social standing: no one says, after all, Your world view
marks you as a fool and moral reprobate, and that
means you deserve equal standing in our community.390
The road from comments on ones community, or ones beliefs, opinions, and values, to comments on oneself is not at
all dicult to navigate.
Nor is this slide rare. As noted throughout, it is not at
all uncommon today to be charged by some commentators
with attacking the dignity and social standing of members of
vulnerable groups whenever one speaks against their particular claims, beliefs, interests, or practices. Oftentimes, such
charges are simply an attempt to deflect attention away from
internal identity group struggles as well as a means of solidi-
390
317
fying and controlling a groups outward image. As Kenan Malik put it, the debates about religious, etc., defamation are, at
heart, really about power:
Demanding that certain things cannot be said,
whether in the name of respecting faith or of not
oending cultures, is a means of defending the
power of those who claim legitimacy in the name
of that faith or that culture, is the means of suppressing dissent, not from the outside, but from
within. What is often called oense to a community or a faith is actually a debate within that
community or faith. In accepting that certain
things cannot be said because they are oensive
or hateful, those who wish to restrict free speech
are simply siding with one side in the debate.391
In short, to gain control over the internal politics of their
particular identity-interest groups, suppressionists often call
on state authorities, compliant media, and sympathetic allies
to enforce their preferred self-images by controlling what
may be said of them. This is the point of hate speech laws:
their main purpose is not to protect victims from real
harm; it is to permit state policing of debate and moments
of ideological conflict.392 Suppressionists, thus, intercede in
ongoing debates in particular societies, take one side in the
391
Interview with Kenan Malik, in Hate Speech, supra note 65, at 83. More
broadly, he argues that Hate speech restriction is a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral.
It is a way of making certain ideas illegitimate without bothering politically to
challenge them.
392
318
debate, and then call on state authorities to silence their inter and intra-group opponents. Indeed, one possible means
of deflecting complaints about the censorship involved is to
adopt Waldrons preferred strategy in regard to race: simply
declare the debate over, and the problem of legitimate disagreement vanishes altogether.393
A. The Cartoon Crises of 2005-06, 2014 & 2015
There is, perhaps, no better illustration of the application diculties presented by group libel statutes than that
occasioned by Waldrons remarks on the Danish Cartoon
crisis of 2005-2006 during which the lives of twelve Danish
cartoonists were threatened with death by Muslim fanatics
ostensibly outraged by illustrations of their prophet, shown
among other things, with a bomb in his turban. In and of
themselves, Waldron says, the cartoons can be regarded as
a critique of Islam rather than a libel on Muslims; they contribute in their twisted way, to a debate about the connection between the prophets teaching and the more violent aspects of modern jihadism.394 But then he says They would
393
While this strategy might have some utility today in terms of an issue like
slavery, it has none whatsoever in debates concerning either race, religion, ethnicity, gay marriage, climate change, or any other issue the Left has declared
settled. See supra note 314.
394
Rosenfeld, supra note 106, in Hate Speech, supra note 65, at 280, takes a
different tack. As a fellow double-standard suppressionist, Rosenfeld would ask
whether the group whose religion is under attack was a majority or a minority
in any particular society. If the blasphemy targets a majority religion, that fact
far outweighs whatever harms blasphemy may cause to the rights of those who
are offended by it. The same, however, does not necessarily follow in the case
of a minority religion. Assuming that the Danish cartoons conveyed nothing
319
come close to a libel on Muslims if they were calculated to suggest that most followers of Islam support political and religious violence. (125, emphases added) He even quotes approvingly one scholars contention that [c]artoons that associate the prophet Muhammad with terrortend to reduce
negative against Muslims as a minority group, but only that Islam is a cruel and
violent religion, he asks if Catholicism were depicted as a venal, power-hungry, and cruel religion, whether a Muslim in Denmark would be similarly situated to a Frenchman or Italian in France or Italy? He answers in the negative
because anti-Islam attitudes can easily and imperceptibly slip into anti-Muslim sentiments in a way that anti-Catholicism is not at all likely to degenerate
into anti-French in France or anti-Italian in Italy. Perhaps not, but, if we are
to use parallel terms for Islam/Muslim, the relevant comparisons are not antiCatholicism/anti-French or Italian, but anti-Catholicism/anti-Catholics!
Moreover, one would think that if he was concerned about the harm caused, he
would be interested in identifying the true culprits in the fiasco: the Islamists,
not the cartoonists. However, as a double-standard suppressionist, his concern
is primarily with the group rather than the harm, and so he concludes that it
seems more difficult to exclude slippage from anti-religious speech to hate
speech in the case of minority religions than in that of majority religion.
Hence, though he takes a different tack than Waldron, he reaches the same
conclusion. See also the hypocritical double-standard rearing its head in the reaction of Yale philosophy professor, Jason Stanley, to the attack by Islamists on
the satirical paper, Charlie Hebdo for printing cartoons mocking Mohammed.
According to Stanley, its OK to mock the Pope as Catholicism is the majority
religion in France but not OK to mock Mohammed because he represents the
religion of an oppressed minority. Jason Stanley, A Postcard From Paris, The
New York Times (Jan. 8, 2015), http://opinionator.blogs.nytimes.com/2015/01/08/a-postcard-from-paris/?_r=0.
320
the social status of Muslim identity as they enforce a negative stigma, according to which terror is a part and parcel of
Islam. (126)395 But if they do what the scholar says they do,
namely, attack the social status of Muslim identity by associating it with terror, Waldron should be for banning them not
for passing them o as close to a libel on Muslimswhatever that means. For what is it to say terror is part and parcel of Islam if it is not to tar all its practitioners with a terrorist brush? Certainly, the denizens of Islam who rioted
surely thought so.
Waldron doesnt even consider a calculated suggestion that most Muslims support political and religious violence an oence. Is he, thus, saying that it is permissible to
say most Muslims support terrorism? Or, that because the
395
Quoting Meital Pinto, What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era, 4 O.J.L.S. 30 695, 721 (2010). Of
course, the May 3, 2015 attack by two Jihadists on the free speech cartoon contest sponsored by Pamela Gellers Freedom Defense Initiative in which both
attackers were given an all-expenses paid vacation to Paradise certainly would
seem to associate Muslims with terror and, thus, attack their social status
but obviously not because of anything the cartoonists were doing. This simple
point appears to elude many commentators who seem to believe that Geller
had it coming because if she didnt sponsor the contests, the Jihadists would not
have been forced to try to kill her along with the other attendees. Apparently,
for such folks, everyone is now subject to the dictates of Islam even if they are
not practitioners. Catherine Shoichet & Michael Pearson, Garland, Texas,
shooting suspect linked himself to ISIS in tweets, CNN (May 4, 2015),
http://www.cnn.com/2015/05/04/us/garland-mohammed-drawing-contestshooting/index.html.
321
oending documents were cartoons, they were naturally suggestive and, unlike an unambiguous statement, open to different interpretations?396 If either, what are we to make of his
observation that the original publication of the cartoon panel
sought to impute to Danish Muslims hostility to the liberal
institutions under which they lived; in other words, it juxtaposed the bomb cartoon with a text stating, in eect, some
Muslims reject modern secular society. (125-26, emphasis
added) Waldron obviously sees something wrong in this, but
for the life of me, if it is as Waldron says, a question of judgment whether we should be permitted to state the obvious
truth that some Muslims are both hostile to Western institutions and reject modern secular society, our libertiesas
well as our politicsare indeed in serious trouble.
It is clear that Waldron is being ambiguous here
perhaps studiously so. For on the one hand, he gives a pass
to interpretations that attack the social status of Muslims
and link them to terror, and on the other, he thinks it a question of judgment whether one can state the obvious fact that
396
Earlier, he said that if an act (burning a cross or placing a noose on someones door) merely intimates (even if it does not explicitly convey) an assault
on a vulnerables social status, that speech is part of the target of my argument if it is capable of becoming a permanently damaging and permanently
disfiguring part of the environment. Waldron at 118 (emphasis added). Expression which intimates something requires interpretation and whatever is
to be made of it would, thus, likely vary from person to person, raising obvious
vagueness, overbreadth, and fair notice concerns. Moreover, how is it even possible to foresee whether any speech or intimating act will become permanently
damaging or permanently disfiguring in the required sense? One would think
any such determination would also require a substantial amount of political
hermeneutics.
322
some Muslims reject both Western institutions and modern secular society. Nevertheless, while Waldron says it was
probably appropriate that Danish authorities did not initiate legal proceedings against the paper, he wants us to know
that he does not think that either Jyllands-Postens publishing of the cartoons or the actions of the publications in the
West that also reproduced the cartoonswere admirable.
Indeed, he says, In my view, there was something foul in the
self-righteousness with which Western liberals clamored for
the publication and re-publication of the Danish cartoons in
country after country, and forum after forum.397 In fact, he
thinks the exercise of the free speech right on the part of the
papers was unnecessary and oensive. (126)398
397
Fellow mind-reader, Stephen Holmes, couldnt agree more: It is very irritating to realize that people just want to stick their finger in the eye of a particular minority group; they want to humiliate them. That is all. They invoke
freedom of speech as an excuse; they do not actually care about freedom of
speech. (It is just like saying America went into Iraq for democracy) Waldron,
Machiavelli, and Hate Speech, in Hate Speech, supra note 65, at 347. Of course
it is! Everyone knows we went into Iraq for oileven though we could have
bought it on the spot market for billions less than it cost us in blood and money.
Oh, and how much Iraqi oil have we taken as payment for our efforts? I believe
the answer is nothing, nada, zilch, zero. In fact, the beneficiary of our generosity, at least of late, is ISIS.
398
It would be helpful if Waldron would explain why the exercise of this right
was unnecessary and offensive. Is he actually saying that there is no first or second order interest in pressing the free expression interest in the exact same
terms? Why not, other than that he, apparently, thinks that the cartoonists, not
the rioters, were the cause of the rioting. Apparently, all those outraged by the
reactions of the lunatics who went on a rampage of murder and property destruction because of what they took (or pretended to take) as blasphemous,
323
In my view, there is something foul in the way Waldron dismisses the rightindeed, the dutyof the press to
defend freedom of expression from attacks by mobs of Islamic lunatics hell bent on terrorizing Western liberals into
giving up the fight for free expression altogether.399 What jihadists obviously want is to silence Western liberals to protect Islam from any negative commentary, and if Waldron is
any example, they are well on their way to succeeding in the
project. Not only Waldron but many other liberals as well as
conservatives are eager to dissociate themselves from anyone
who, in their views, gratuitously blasphemes the prophet Mohammed.400 Given that people have the right to blaspheme in
should have either shut up or protested but should not have done anything that
might cause Muslims to riot again. Actually, since we have no clear idea of
which particular expressions might perchance be taken as justifications for
Muslims to riot, the situation reprises the very vagueness and overbreadth
problems inherent in Waldrons group libel statute. By the way, the very idea
that being provoked to riot is a defense for rioting is as absurd here as it would
be to a rape or murder charge.
399
There is also something foul in dragging a newspaper publisher before a Human Rights Tribunal for re-printing the cartoons, thereby forcing him to spend
two years of his time and well-over $100,000 to defend himself against such
spurious charges. Shakedown, supra note 329. See also Chapter IX.
400
324
the United States401no one who is not a Muslim has any obligation, moral or legal, to follow that religions strictures
such commentators say, Yes, BUT you ought not do so for
one reason or another.
The contest organized by Pamela Gellers Freedom
Defense Initiative in May of 2015 is a good case in point.
Again, as in 2005, contestants were asked to draw sketches of
Mohammed, supposedly a no-no in Muslim doctrine. As the
event was wrapping up, two fanatical Muslims attempted to
mimic the 2014 Charlie Hebdo massacres by murdering Geller along with the contests participants and spectators.
Thankfully, unlike in the Hebdo case, both assailants were
shot by a Garland, Texas police ocer before they could
carry out their murderous missions.402
One would think that, in America, media personalities would have empathized with Geller as they, more than
most, have a vested interest in upholding freedom of speech
in the face of violent attacks such as that Geller and her cohorts faced. Unfortunately, the first response of many, if not
most media personalities to the shootings was, just as in the
2005 and 2014 cases, to blame the victims. For example, in
an editorial entitled Free Speech vs. Hate Speech the New
York Times began by granting that, however oensive they
may be to believers, images ridiculing religion, qualify as
protected free speech, and that such images do not justify
401
402
Holly Yan, ISIS claims responsibility for Texas shooting but offers no proof,
CNN (May 5, 2015), http://www.cnn.com/2015/05/05/us/garland-texasprophet-mohammed-contest-shooting/index.html.
325
murder. But it then claims, bizarrely, that Gellers Art Exhibit and Contest was not really about free speech. It was an
exercise in bigotry and hatred posing as a blow for freedom.403 However, on what basis the Times claims to know
this is not at all clear since it presents no evidence other than
that Geller fought against the ground zero Mosque, allegedly
runs a venomous blog, and organized the event in Garland!
On this basis, it claims her motive was hatred and her goal in
organizing the contest was simply to be provocative. Protesting violent Islamist attacks on the free speech right was
apparently not her intention; which, apparently, was to provoke Islamists to kill her and all others at the gathering.
Moreover the Times claim that Gellers Draw Mohammed
contest was not a form of speech belies just about every free
expression court decision since the 1960s.
Linda Stasi of the New York Daily News went even
further alleging that Gellers wish was to bring about more
dead Americans at the hands of radical Muslims. She even
likened Geller to the killers of al-Qaeda and Isis!404 Then, on
403
Contrary to the Times, the drawing which won the contest depicted Mohammed wielding a sword at a cartoonist, saying You cant draw me! with the
cartoonist answering back: Thats why I draw you. So, the cartoon was clearly
a free speech protest against requiring everyone to obey a particular religious
requirement. Also, I do not, for a moment, think that Gellers contest was an
exercise in bigotry and hatred, but even if it were, it would still be an exercise
in speech protected by the First Amendment.
404
Linda Stasi, With Pamela Gellers Prophet Muhammad cartoon stunt in Texas,
hate rears its ugly face again, New York Daily News (May 5, 2015),
http://www.nydailynews.com/new-york/pamela-geller-sows-seeds-hate-texasarticle-1.2211845.
326
405
Kemberlee Kaye, The medias struggle with free speech: CNNs Chris Cuomo
Edition, CNN (May 6, 2015), http://legalinsurrection.com/2015/05/the-medias-struggle-with-free-speech-chris-cuomo-edition/.
406
Billy Hallowell, Greta Van Susteren Chastises Muhammad Cartoon Contest Organizers for Recklessly Luring Police Into Danger, The Blaze (May 6, 2015),
http://www.theblaze.com/stories/2015/05/06/greta-van-susteren-chastisespamela-geller-for-recklessly-luring-police-into-danger-at-muhammad-cartoon-contest-knowingly-putting-others-lives-on-the-line/.
408
Ahiza Garcia, Bill OReilly and Megyn Kelly Tangle Over What Prompted The
Texas Shooting, Talking Points Memo (May 5, 2015), http://talkingpointsmemo.com/livewire/megyn-kelly-bill-oreilly-garland-shooting.
327
409
Josh Feldman, OReilly Tackles Texas Shooting: Insulting the Entire Muslim
World Is Stupid, Mediaite (May 5, 2015), http://www.mediaite.com/tv/oreilly-tackles-texas-shooting-insulting-the-entire-muslimworld-is-stupid/.
410
Josh Feldman, Trump on Garland Shooting: Terrible, but Why Are You
Taunting Muslims?, Mediaite (May 4, 2015), http://www.mediaite.com/tv/trump-on-garland-shooting-terrible-but-why-are-you-tauntingmuslims/.
411
Geller, herself, said that the contest was a reaction to the many demonstrations by Muslim elements across the world that supported the shootings in
Paris. Pamela Geller, Muslims Celebrate Attack On Headquarters Of French Sa-
328
Sam Sokol, Four French Jews named as victims of Paris kosher deli attack, The
Jerusalem Post (Jan. 10, 2015), http://www.jpost.com/Diaspora/Four-Jewish-victims-of-kosher-deli-siege-named-387299.
413
Andrew C. McCarthy, Why Draw Mohammed? The Artist Explains, National Review (Jan. 2, 2016), http://www.nationalreview.com/article/429175/draw-mohammed-cartoonist-speaks-out-why-i-entered-garlandcontest.
329
Even today, some people believe that the Declaration of Independence unnecessarily provoked George III into sending troops to teach his unruly colonists a lesson. The fact is,
most, if not all, of our greatest moral and political achievements have come from some among us unnecessarily agitating and provoking another element of the slumbering Demos
into doing the right thing. As the winner of the AFDI contest put it, Provocation is freedom of speechits not separate from it.414
Still further, the argument that the First Amendment
doesnt protect provocative speech is absurd, and the more
knowledgeable of Gellers critics surely understand that fact.
The real question is why they object to Gellers particular
provocation. OReilly claims that it hurts the cause of defeating jihadists because it [insults] the entire Muslim world
without advancing liberty. Unlike some others, OReilly
grants Gellers right to hold the contest but thinks she did
wrong to hold it.415 Nevertheless, this claim fails as well. In
the first place, it assumes that a! Muslims are insulted by
such drawings but no empirical evidence for the claim other
414
Like OReilly, David Shipler argues that Geller had a legal right to mock Islams banning of images of Mohammed but that this right is trumped by a cultural duty not to do so. Such arguments are essentially of the I support free
speech, BUT varietyin this case not for speech that offends Muslims.
Pamela Geller and the Anti-Islam Movement, The New Yorker (May 12, 2015),
http://www.newyorker.com/news/news-desk/pamela-geller-and-the-anti-islam-movement.
330
Fast forward to May of 2015 when the Executive Director of a theater nixed
a one-act play called Mohammed Gets a Boner because he thought it a clear
offense to Muslims. The play was to be one of four concerned with censorship
in the arts and media. Commenting on the Directors decision to drop the play,
the author, Neil LaBute, said: Both in life and in the arts, this is not a time to
hide or be afraid; recent events have begged for artists and citizens to stand and
be counted. Jeremy Gerard, Anti-Censorship Showcase Will Go On As Neil
331
LaBute Pulls Play, Deadline (May 20, 2015), http://deadline.com/2015/05/neil-labute-anti-censorship-play-censored-1201428233/. Earlier that same year, various members of PEN withdrew from its American Centers Gala because it decided to confer a Freedom of Expression Courage award
on the Paris magazine Charlie Hebdo. The writers objected to the award in
large part because they thought it mocked a vulnerable section of French society. Alan Yuhas, Two dozen writers join Charlie Hebdo PEN award protest, The
Guardian (Apr. 29, 2015), http://www.theguardian.com/books/2015/apr/29/writers-join-protest-charlie-hebdo-pen-award. As
one writer put it, To a Muslim population in France that is already embattled,
marginalized, impoverished, and victimized, in large part a devout population
that clings to its religion for support, Charlie Hebdos cartoons of the Prophet
[!] must be seen as intended to cause further humiliation and suffering. Glenn
Greenwald, Read the Letters and Comments of PEN Writers Protesting the Charlie
Hebdo Award, The Intercept (Apr. 27, 2015), https://firstlook.org/theintercept/2015/04/27/read-letters-comments-pen-writers-protesting-charliehebdo-award/.
417
In Canada, writers such as Tarek Fatah, Irshid Manji, and Farzana Hassan
come to mind, however, they are largely ignored by the mainstream media as
not really being representative of Muslims.
332
333
to reason that way with regard to environmental regulationand it is odd and disturbing that older and cruder models of social harm remain dominant in the First Amendment
arena. (97) There Waldron deployed the argument against
MacKinnons critics who say she has shown no causal connection between viewing pornography and raping and assaulting women to argue that in fact she has, and that the
same slow-acting poison argument valid there can be extended to hate speech as well.419 Having noted my objections
to the argument as he states it, I wish here to consider how
his same argument might more accurately be deployed
against anyone who deems it necessary to accede to jihadist
demands.
The argument has a reverse side to it that leads to
conclusions diametrically opposed to Waldrons own which
require us to refrain from doing things we think will result in
harm to minorities. Take the example of religion in general
and Islam in particular. Suppose I think that if I publish
something oensive to many Muslims that there might be riots, property destroyed, and many people killed by outraged
Muslim rioters. This is surely not an imaginary outcome as
such events have almost become de rigueur in recent years.420
419
The idea being that my act of not placing an emissions control device on my
car can be said to cause the environmental disaster years down the road. Would
Waldron also say that the anti-Semitic harangue that the Reverend Al Sharpton gave outside Freddys Fashion Mart in 1995 was the cause of the arson and
deaths that occurred some days later? After all, without Sharptons speech, the
arsonist wouldnt have been forced to set the fire?
420
Some souls have even conjured up imaginary causes to explain Islamists suiting up in full riot gear. See the Obama/Clinton/Rice bizarre attempt to explain
the September 11, 2012 riots in Cairo and Benghazi as a reaction to a silly film
334
that few had even heard of and which had only a mythical, if politically useful,
connection to the events. Michael Barone, Did Clinton and Obama Believe Their
Benghazi Baloney?, Townhall (May 13, 2013), http://townhall.com/columnists/michaelbarone/2013/05/13/did-clinton-and-obama-believe-their-benghazi-baloney-n1592591/page/full.
421
335
hecklers veto; we trim our free speech sails whenever Muslims threaten to riot, and we eectively consign our free
speech rights to the thinnest of skins in Islam. Holding our
free expression rights hostage to violent jihadism and doing
so out of fear of what wefalselythink necessary to appease their violent appetites clearly does not make for a free,
vibrant, honest, and robust political discourse.422
Second, and on the other hand, one courageous liberal
standing up to the fanatics and stating that freedom of expression is a principle so eminently important that he refuses
to be intimidated and, therefore, proceeds to publish anew or
group identity, that anything perceived contrary to some understanding of Islams requirements by some deplorably despicable and manipulative Imams
as happened in the Jyllands-Posten casewill likely be enough to incite a riot.
422
See, e.g., Maxim Lott, German Publisher, Fearing Muslin Retaliation, Cancels
Honor-Killing Novel, Fox News (Oct. 9, 2009),
http://www.foxnews.com/story/2009/10/09/german-publisher-fearing-muslim-retaliation-cancels-honor-killing-novel/?test=latestnews. See also Draw
Muhammad Cartoonist Goes Into Hiding at FBIs Insistence After Assassination
Threat, FoxNews.com (Sept. 16, 2010),
http://www.foxnews.com/us/2010/09/16/draw-muhammad-cartoonist-goeshiding/; The Jewel of Medina, Wikipedia, http://en.wikipedia.org/wiki/The_Jewel_of_Medina. As Pamela Geller said about the importance of the ability to speak freely about groups, A group that cannot be
criticized cannot be opposed. It can work its will no matter what it is, and no
one will be able to say anything to stop it. Pamela Geller, AFDI Rolls Out New
Free Speech Billboard Campaign Featuring Muhammad Cartoon, Breitbart (June
8, 2015), http://www.breitbart.com/big-government/2015/06/08/afdi-rollsout-new-free-speech-billboard-campaign-featuring-muhammad-cartoon/.
336
re-publish the very material that originally caused the rioting may likely only succeed in finding a new name for himself
and going into hiding423if he is lucky enough to avoid having his head lopped o. However, thousands of Western liberals standing collectively to oppose such fanatics would likely
bring about a dierent outcome altogether.424 It is possible,
just possible, that such a show of overwhelming support may
convince Islamists that it is futile to attempt to silence expression they consider oensive, and that the better strategy
is one that either ignores the alleged oense or answers it
with better speech, should they happen to have any. Unfortunately, ever since Khomeini put his Fatwa on Salman Rushdie, forced him into hiding, had his Japanese translator and
Norwegian editor murdered, and generally terrorized publishers around the world, Western liberals may have decried
his actions but they have usually been too fearful to stand up
for anyone Islamists accuse of insulting Islam in any way at
423
As happened to Salmon Rushdie and Molly Norris, a feminist left-wing Seattle cartoonist, who suggested in reaction to Internet threats to free speech
posed by Islamists that everyone draw likenesses of Mohammed on May 20,
2010 in protest. However, as a result of a fatwa placed on her by Anwar al-Awlaki, Norris was forced into witness protection to prevent attacks on her life by
erstwhile followers of the Prophet. Female cartoonist forced into hiding after doodling Everybody Draw Mohammed Day picture, The Daily Mail (Sept. 17,
2010), http://www.dailymail.co.uk/news/article-1312941/Cartoonist-MollyNorris-hiding-Everybody-Draw-Mohammed-Day-picture.html. The attack
on Pamela Gellers own cartoon contest shows exactly how prescient Norris
was to take cover.
424
Again, as Bosch Fawstin put it: if drawing Mohammed can get you killed,
then he should be drawn again and again and again and again, until drawing him
loses all power. McCarthy, supra note 413.
337
425
How has the mainstream press responded the murders of the editor and the
cartoonists of the French satire magazine, Charlie Hebdo, by three enraged Islamists? By doing just what they did during the 2006 attacks on JyllandsPosten: they have refused to honor both Charlie Hebdo and freedom of ex-
338
pression by re-publishing its cartoon drawings, effectively submitting to the Islamists Sharia requirement. As before, they took the cowardly high-road. CNN
memo to staff: We are not at this time showing Charlie Hebdo cartoons of the
Prophet, Hot Air (Jan. 7, 2015), http://hotair.com/archives/2015/01/07/cnnmemo-to-staff-we-are-not-at-this-time-showing-charlie-hebdo-cartoons-ofthe-prophet/. Then there is Americas paper-of-record, distorting its account of the Hebdo attack by omitting the words of one of the attackers who
said to a female member of the newspapers staff cowering in fear: We dont
kill women, but you must convert to Islam, read the Quran, and cover yourself. Jim Treacher, New York Times Reports On Muslim Proselytizing During
Charlie Hebdo Attack, Then Deletes It, The Daily Caller (Jan. 8, 2015),
http://dailycaller.com/2015/01/08/new-york-times-reports-on-muslim-proselytizing-during-charlie-hebdo-attack-then-deletes-it/. Contrast such highminded journalism with its better half: See Lachlan Markay, A Tribute to Charlie Hebdo, The Washington Free Beacon (Jan. 7, 2015), http://freebeacon.com/national-security/a-tribute-to-charlie-hebdo/.
427
The rise of ISIS and its call to individual jihadist acts around the world have
made each one an inspiration for others has changed matters somewhat.
339
to attack with violence those whose speech they find oensive. By not holding Islamists to the same moral and rhetorical standards we hold ourselves, and by blaming the speakers
rather than the doers for the violence, we are only encouraging more of the same. By standing up to Islamists and asserting our free expression rights in the face of their threats of
violenceas, for example, did Jyllands-Posten, Charlie
Hebdo, and Pamela Gellerwe are not only upholding a key
Western value, we are also, surprisingly enough, treating
them as equals.428
It is interesting to note that in his analogy of pornography to automobile emissions, Waldron never actually argued that those mi!ions of acts of viewing pornography directly caused any given viewer to rape or murder, yet he
does lead us to think that Rushdies publication of Satanic
Verses caused the Fatwa to fall on his head, and that the
sketch of cartoonist Kurt Westergaard and its publication by
Jyllands-Posten caused the cartoon riots. However, the
only way these claims make any sense is if we accept the absurd claim that were it not for their expressive acts, Islamic
fanatics would not have been forced to riot!429 Besides attributing the cause of the violence to the wrong party, this claim
428
340
almost any of us could make for ourselves at some time or other about some or
other issue that seriously offends us. However, whatever happened to the longstanding liberal argument that one is obligated in civilized societies to control
ones violent impulses in the face of verbal provocation?
341
insult.430 Why the new mandate? One European Commission ocial delicately explained that this measure was taken
to preserve social peace and public order in light of the increasing sensitivities of certain individuals who have reacted violently to criticism of their religion. So the reason
for the new mandate wasnt to encourage tolerance or equality; it was, instead, to appease Islamists by protecting their
religion from criticism in the hope that this would prevent
further rioting, showing, once again, the utility of the timetested hecklers veto.
Waldron, however, seems to think that the onus for
rioting should be placed anywhere but on the rioters or hate
speech laws. He faults the newspaper for publishing the cartoons, along with those newspapers and magazines that reproduced them, and, presumably as well, the cartoonists who
created them. He says that exercising the right to publish the
cartoons was as unnecessary as it was oensive, and he
discerns something foul in the self-righteousness emanating from those Western liberals who incessantly clamored for publication and re-publicationhere he is at one
with Yale University Press as well as all those critics of Pamela Gellers Draw Mohammed contest. But why vent ones
outrage against those who were exercising their universal free
speech rights and not the rioters who would kill them? Why
blame the writers and publishers whose intentions were obviously not to cause worldwide violence but to illustrate a childrens book and stand up for free expression, rather than the
Muslim rioters whose intentions were violent? Perhaps, like
many Western liberals and leftists, Waldron was attracted by
430
Nina Shea, Hate Speech Laws Arent the Answer to Islamic ExtremismTheyre
Part of the Problem, National Review (Jan. 9, 2015), http://www.nationalreview.com/article/411361/hate-speech-laws-arent-answer-islamic-extremismtheyre-part-problem-nina-shea.
342
343
n
XI
Hate Speech and Pornography
as World Defining Activities
As noted throughout, Waldron argues that private individuals have a moral obligation to accord vulnerable minorities recognition respect. In turn, he says, the government has an obligation of its own to enforce this moral obligation by means of a group libel statute. The result is that by
passing such a statute the government is legislating, or defining, a world in which all will be forced to live their lives. The
reason governments are able to define worlds is that, subject to constitutional restraints, they have the authority do so
given by the consent of the governed. If, for example, the
legislature says X is the law, then, caeteris paribus, X is the
law. The legislature can be said to have made the law by an
act or acts of speech. Given certain felicity conditions,431
simply stating The law is X makes X the law.
As Waldron says, hes learned a lot from carrying
MacKinnons jockstrap. Unfortunately, some of what
MacKinnon taught him is not quite accurate. Let me begin
431
For example, the idea that citizens have empowered the legislature to make
law for them and have agreed, subject to constitutional restraints, to accept it
as law to themselves.
by considering a set of claims MacKinnon makes about pornography that Waldron seems to swallow wholesale.
MacKinnon argues that pornography is more than
just speech; it is an act, as well, and an act of discrimination
at that. In her pornography-as-discrimination argument the
claim is that to utter certain statements or to display certain
images is also to discriminate against women and children.
The same argument with appropriate alterations is applicable, so it is said, to other subordinated, oppressed, or
marginalized groups. The basic idea is that the public dialogue is so flooded with pornographic images of women (or
racist images of minorities) that contrary images have little or
no chance of gaining a foothold. As a result, when men see a
woman, they image a slut; when Whites see Blacks or Latinos, they visualize lazy, shifty, shuing buoons and/or
scam artists. The reason for both is that the grip of pornographys image of women (or racisms image of minorities) is
so strong that it has become the norm.432
432
Commenting on the way negative stereotypes can affect behavior; Alexander Tsesis suggests that [a]fter having been exposed to negative images of
blacks, people are more likely to anticipate that blacks are dangerous. Completely innocuous eventsfor example, a black man approaching in the middle
of the street at nightare often interpreted as perilous even when no factual
reason for fear or anxiety results. Destructive Messages, supra note 142, at
87. However, what makes Tsesis so certain the event is [c]ompletely innocuous? Perhaps, given the statistics on Black-on-White violence, and even Blackon-Black violence, it is prudent (not foolish) for anyone who values his safety
to be wary. It was certainly prudent for the terminally race-conscious Jesse
Jackson, who, in 1993 said There is nothing more painful to me at this stage of
my life than to walk down the street and hear footsteps and start thinking
346
347
348
Not a Moral Issue, 2 Yale L. & Poly Rev. 321, 323, 325-27 (1984) (emphasis
added). As well, pornography is more act-like than thought-like. Like segregation, pornography institutionalize[s] the idea of the inferiority of one group
to anotherpornography is the essence of a sexist social order, its quintessential social act. Id. at 335.
436
Frederick F. Schauer, Speech and SpeechObscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L. J. 899, 922 (1979).
438
Walter Berns, Freedom, Virtue, and the First Amendment (Louisiana State University Press 1957).
439
Not a Moral Issue, supra note 435, at 326. Attempting to assist MacKinnon in
explaining how pornography may contribute toillocutionary disablement
resulting in the silencing of women, Rae Langton suggests it may do so by
undermining reciprocity which is something like: [sic] mutual capacity for
uptake between speaker and auditor. Pornography, thus, intervenes between
them destroying the possibility for uptake which, in turn, may make refusal
unspeakable for some women in some contexts. And so pornography silences
349
Not a Moral Issue, supra note 435, at 326. Many things create hostile
worlds. The actions of those demagogues whose racial rhetoric incited people
to burn and loot stores in Ferguson, Missouri in protest against the altogether
legitimate police shooting of Michael Browna thug who manhandled a store
manager attempting to prevent him from stealing cigars, and then attacked a
police officer who was attempting to arrest him, punching him in the face and
350
Nor is pornography the only player in this drama: Pornography (like the racism, in which I include anti-Semitism,
of the Nazis and the Klan) is not at all divergent or unorthodox. It is the ruling ideology.441 Nevertheless, this porno-racist ruling ideology is not readily apparent and not at all obvious: for because of its pervasiveness, potency, and success
in making the world a pornographic place, the harm of
fighting for his gun in the process, and who, after all this, charged at the officer
when ordered to stopclearly created a hostile world for police officers. The
same is true for the rhetoric maligning the NYPD as racist for allegedly murdering a black man resisting arrest in New York. The result was a hostile environment which encouraged a lunatic to assassinate two police officers sitting
peacefully in their cars as an act of revenge for the Ferguson and New York
deaths. Larry Celona, et al., Gunman executes 2 NYPD cops in Garner revenge,
New York Post (Dec. 20, 2014), http://nypost.com/2014/12/20/2-nypdcops-shot-execution-style-in-brooklyn/.
While I think it is legitimate to blame such rhetoric for contributing
to the hostile environment which led to the deaths of the police officers, examples of such indirect contributions are so commonplace that if we prosecuted
them, our free speech guarantee would be practically worthless. The same is
not true, however, when the culprit turns out to be state officials whose contributions directly foment violence. For example, the rhetoric responsible for
spawning and legitimizing the violence and looting in Baltimore in April of 2015
can clearly be laid at the feet of its Mayor, Stephanie Rawlings-Blake, who said
publicly that she instructed the police to back-off of the rioters in order to
[give] those who wish to destroy space to do that. Chuck Ross, Baltimore
Mayor: Space Was Provided To Those Who Wished To Destroy, The Daily
Caller (Apr. 26, 2015), http://dailycaller.com/2015/04/26/baltimore-mayor-iwanted-to-give-space-to-those-who-wished-to-destroy-video/.
441
351
442
Id. at 335.
443
Do women and children share the same point of view? Or do they have separate and, possibly, different views? If the latter, who is entitled to speak for the
children? The women and children mantra actually infantilizes women by
linking their interests and outlooks to those of children.
352
Racism is in large part a product of the unconsciousIt is part of our common historical experienceRacism is irrationalIt is also arguably dysfunctionalRacism is normal. It is a malady we all share, because we have all been
scarred by a common history. Racisms universality renders it normal. Ego, supra note 161, at 330. However, if racism is universal, part of our common historical experience; if its normal, and a malady we all share, then, because it
is also a product of the unconscious, it is so embedded into the culture, so
much a part of everyones life, so ever-present, that no anti-hate speech law
could possibly root it out. See also Destructive Messages, supra note 142, at
chapter six.
445
353
448
th
449
Only Words, supra note 39, at 95-96. And why wouldnt it, at least on Andrea Dworkin and MacKinnons arguments that Pornography makes it impossible for [men] to tell when sex is forced, that women are human, and that rape
is rape. As quoted in Strossen, supra note 134, at 272, referencing Tad Friend,
Yes: Feminist Women Who Like Sex, Esquire, Feb. 1994, 48-56 at 54).
354
the authorities got the wrong culprit because the pornographers were left completely o the hook.450 Surely there
exists no more ghastly example of the moral and legal consequences attendant upon ignoring the actual, living and
breathing causal culprit in favor of pursuing a preferred linguistic or pictorial phantom.451
Pornographic words and images are harms in themselves, according to MacKinnon, apparently because in her
universe, men (apparently, again her husband as well) are in
the same position as dogs. For while the despised liberals
think that it is epistemologically possible to separate ideas,
attitudes, words, and images from actions or behavior,
MacKinnon disagrees: words and ideas, etc., are acts, and
acts are words and ideas, etc. They are inseparable.
Which is saying kill to a trained guard dog, a
word or an act? Which is its training? How about
a sign that reads Whites only? Is that the idea
450
Only Words, supra note 39, at 97. Strossen, supra note 134, at 271-72,
notes that another rapist and killer of two girls, ages twelve and thirteen (Steven P. Mignogna) took the MacKinnon defense a step further arguing that he
should be exonerated because he had become emotionally unstable as a result
of being exposed to pornography at a store he had visited two or three times,
even though, unlike Schiro, he did not even show that he had bought or looked
at the sexually explicit materials in question. Given that the Court ruled
against him on this ground, it left open the possibility that had he bought or
looked at them he might very well have walked. Like Schiro, the pornography
made him do it.
451
See Strossen, supra note 134, at 266-79 for a feminist account of what the
pursuit of the pornographic phantom ignores in terms of the real causes of sexual inequalities.
355
453
So convinced was MacKinnon of this silliness that she claimed that a man
who fantasized in print that he raped MacKinnon actually raped her by his fantasy! Carlin Romano, Between the Motion and the Act, The Nation, 563-70
(1993) (book review, reviewing Only Words, supra note 39); Richard Lacayo,
Assault by Paragraph, Time, Jan. 17, 1994.
454
356
357
456
Strossen, supra note 134, at 155-60, has observed that MacKinnon seems to
get off on describing the acts she thinks pornographic.
457
And along with it goes Waldrons argument that private individuals have
governmental obligations to stand out of the way and not say anything that
undermines state attempts to grant assurances to vulnerable minorities.
See Chapter IV, Section B.
358
359
458
360
On the one hand, he says that hate speech is world-creating: for simply by being displayed in public it intimidates, strikes
fear, damages dignity, undermines assurance, defaces and pollutes the environment, and even coerces targets despite the
fact that state ocials are both empowered and willing to ensure that hate speakers do not become hateful actors.459 But
then he adds a qualification: for while he says, [t]he harm is
the dispelling of assurance, and the dispelling of assurance is
the speech act, he adds, it is what the speaker is doing in
his act of self-disclosure, as far as he is capable. (167, emphasis
added) If this assurance is dispelled, we could say there is
harm; but, of course, the harm could be due to any number
of things, ranging from the degree of ignorance, negligence,
What is striking is how nave and mistaken Waldron can be about ascribing
harm. Again, he cites Nazis marching in Skokie carrying anti-Semitic slogans as
an instance of what he means (Waldron at 34, 71), but, again, the Nazis never
marched in Skokie, and when they did assemble in front of the Federal Building
in downtown Chicago, all twenty strong of them had to be ushered in with a
police escort, from an escape route through buildings and underground passageways. Greeted by spectators with a hail of eggs, beer cans, rocks, and epithets, the Nazis stayed for only ten or fifteen minutes and left the way they
came. The police arrested about a dozen counter-demonstrators and everyone
else went home. The Nazis assembled a couple of weeks later on their home
turf where they had some local support but, again, there were more counterdemonstrators than supporters and more curiosity gawkers than either. In
short, the only harm caused was to the Nazis themselves. After Chicago, the
Nordic-Neos lost their god-like thunder altogether. Philippa Strum, When
the Nazis Came to Skokie 143 (University of Kansas Press 1999).
361
sensitivity, or anxiety in the targeted person(s) to the intellectual and rhetorical capabilities of the person or group
posting or carrying the sign(s), or simply to the fact there are
no police around at the moment to counteract the fears, etc.,
of the intended targets. In any event, Waldron himself gives
up the ghost when he appends the phrase as far as he is capable. Indeed! In the end, it really isnt the signs at all; its
the ability and, I would add, the status of the speaker that is
the real issue; for the success of the speech-act depends entirely on who is speaking (a government ocial or a private
citizen)460 and, only then, on the speakers ability to dispel assurance. Thus, Waldrons claim that assurance is dispelled by
the mere presence of hateful signs is mistaken. Once again, the
claim falls prey to the toleration is promotion fallacy. For
the mere fact that the state is permitting the expression does
not entail that it is also giving its imprimatur to the content
or viewpoint being expressed, and the fact that the state is
not giving its imprimatur means, once again, that the speaker
is altogether on his own.
In his speech-act dispelling of assurance argument,
Waldron takes a cheap shot at Baker, who argues the altogether sensible point that words cause no harm to a target
without mental mediation on his part. Baker means by this
not the silly point which Waldron attributes to himi.e.,
that a person is free to interpret a statement that Blacks are
not welcome as that they are welcome (170)but, instead,
that the words must be understood as intended, and having
been understood, the hearer must decide what to do about
them. He or she may ignore them, may become angered or
even demoralized that hateful people still exist, or may become defiant and more determined than before to continue
460
As I have earlier argued, Waldron collapses the distinction between government officials and private citizens altogether by rendering the latter mere
agents of the former. See Chapter IV, Section B.
362
doing whatever each was doing that brought out the signs in
the first place. In short, there are many dierent reactions
targets might have to such signs. Some might wilt in despair,
but there is no reason why that would be a necessary eect of
encountering such signs.
Indeed, irony of ironies, Waldron doesnt really seem
to care in what the reaction to hateful signs consists because,
for him, the damage caused
is done by the speech in requiring its targets to
resort to the mental mediation that Baker recommends, and he gives no convincing reason why society should not pay attention to the harm that is
wrought at this stage, the harm of requiring them to
do so. (171, emphasis added)
Once again, Waldrons harm argument which promised so
much collapses into the pedestrian. The harm is not in the
way they are forced to react, its simply because theyre forced
to react (i.e., think about what to do) that is the problem.
Hence, Waldron says, while targets might respond in the
defiant posture of a critic, they shouldnt be forced to respond to the signs at all. They shouldnt have to laboriously
conjure up the courage to go out and try to flourish in what is
now presented to them as a partia!y hostile environment. To
the extent that [the racist message] already puts them on the
defensive, and distracts them from the ordinary business of
life with grim determination to try and act like a normal citizen against a! the odds, the speech has already succeeded in
one of its destructive aims. (171, emphasis added)
Here we see the ultimate weakness of Waldrons
hard-done-by-vulnerables argument. For having previously
said that hate speech per se damages the dignity and reputation of vulnerables, and that it undermines the public
good of socially furnished assurance, and that it defaces and
363
364
vulnerables, but vulnerables themselves must also circumnavigate the dangers to their dignity that lie in the inner cities and are not caused by nasty signage but often by their fellow vulnerables.462
Furthermore, there are many things besides hateful
signs that, as members of one group or another, we would rather not, but are forced to confront every day. Particularly
since the election and re-election of President Obama, many
Democrats, along with their cheerleaders in academia and
the media, have consistently attacked the dignity of anyone
who dares to challenge the Presidents policies by calling
such challenges racist.463 Many Christians could just as well
do without seeing a statue of Christ placed in a bottle of
urine. Mormons probably would be happier if the Book of
462
Department of Justice statistics for the years 1980 to 2008 reveal that 93%
of black homicides were caused by other Blacks. Moreover, despite being less
than 13% of the population Blacks committed 52% of all homicides and were
49% of all victims. Tiffany Gabbay, Race Wars Part 1: The Shocking Data on
Black-on-Black Crime, The Blaze (Apr. 9, 2012),
http://www.theblaze.com/stories/2012/04/09/race-wars-part-1-the-shockingdata-on-black-on-black-crime/. See also Race and Crime in the United States,
Wikipedia, http://en.wikipedia.org/wiki/Race_and_crime_in_the_United_States#Uniform_Crime_Reports_.28UCR.29.
463
As Brit Hume noted, the Obama administration consistently uses the race
card as a shield to protect it from attacks on its policies and programs, and also
as a sword with which to attack its political and ideological foes as racists. Foxs
Brit Hume: Obama Uses Race As A Sword To Attack Others, Media Matters
for America (Apr. 13, 2014), http://mediamatters.org/video/2014/04/13/foxsbrit-hume-obama-uses-race-as-a-sword-to-at/198868.
365
464
Civilizing Public Discourse, supra note 284, at 302. For a criticism of current
attempts at restricting freedom of speech, not dissimilar from my own, see John
OSullivan, No Offense: The New Threats to Free Speech, The Wall Street
Journal (Oct. 31, 2014), http://online.wsj.com/articles/no-offense-the-newthreats-to-free-speech-1414783663#top.
366
Conclusion
In Waldrons opening anecdote the father walking his
young son and daughter encounters signs saying Muslims
and 9/11! Dont serve them, dont speak to them, and dont
let them in. We are told, also, that he doesnt know what
to say when his ten-year-old daughter asks him What does
it mean, Papa? Really? Are we seriously to conclude that
Papa is so completely at a loss for words, so profoundly
broken down, and so dumbfounded, that he can find nothing
reassuring to say to his daughternothing at all? Waldron
decides to step in and help Papa by reading the signs for
him:
Dont be fooled into thinking you are welcome
here. The society around you may seem hospitable and nondiscriminatory, but the truth is that
you are not wanted, and you and your families will
be shunned, excluded, beaten, and driven out,
whenever we can get away with it. We may have
to keep a low profile right now. But dont get too
comfortable. Remember what has happened to
you and your kind in the past. Be afraid. (2)
So, instead of issuing calming words of encouragement to his
daughter, or dismissing the signs as a nuisance, Waldron
would attempt to terrorize her, or at least be sure to inculcate in her the required beliefs, habits, attitudes, and practices appropriate to the professional grievance-monger. The
signs apparently tell Pops: Were not welcome here, for
while the country seems hospitable, it really isnt; well be
Conclusion
For an updated collegiate version of the message that if you see a sign you
dont like, be sure to fear it and run as fast as you can to a safe space, see Sam
Budnyk, Emory Students Express Discontent With Administrative Response to
Trump Chalkings, The Emory Wheel (Mar. 22, 2016),
http://emorywheel.com/emory-students-express-discontent-with-administrative-response-to-trump-chalkings/.
370
Conclusion
Muslims throughout the world often cheered them on, leaving many Americans reasonably to believe that many, if not
all, Muslims were not only in sympathy with the attackers
but also posed a serious threat to the security of the country.
To cement this point, he might inform her that members of
their Islamic faith have been responsible for over 28, 758 terrorist attacks worldwide since 9/11.467
He might also have told her that President Bush went
on the air immediately after the attacks to say that this was
not an attack by Islam itself, and to assure Muslims that they
should feel secure in the knowledge that they would be protected by their government from any harm stemming from
any possible backlash. More than that, if Papa were truly to
speak truth to his daughter, he should certainly say, as well,
that American soldiers have shed much of their blood protecting Muslims in Europe, the Middle East, and Africa, that
it is nothing short of astonishing that there was no concerted
violent backlash by mainstream Americans after 9/11, and
that, unlike what has been the practice of Muslims in many
parts of the world, Americans went far out of their way to
prevent one. So those signs, he could say, reflected the views
of a small number of Americans who, perhaps, were traumatized by the attacks and were certainly not impressed by the
failure of some mainstream Muslim organizations to speak
out against Islamists, and because of this, not knowing who
was and who was not a patriotic American, perhaps unfairly
tarred all Muslims with a single brushstroke.
467
List of Islamist terrorist attacks, Wikipedia, http://en.wikipedia.org/wiki/List_of_Islamic_terrorist_attacks. See also What makes Islam so
different?, http://www.thereligionofpeace.com/Pages/TheList.htm, which
carries a running tally of the terrorist attacks by Muslims since 2001 (last visited July 5, 2016).
371
Conclusion
Finally, he might also point out that in America, unlike, say, Pakistanor from whatever other country the family may have emigratedthe government of the day is not
free to do whatever it feels like about speech it disfavors but
is bound by the Constitutions First Amendment to respect
the free speech rights of its citizens even when these are in
fundamental disagreement with its aims, values, institutions,
and desires. Look, child, he might say, as Muslims we have
been taught to believe that religion comes first and dictates
what we can and cannot say. But America is a secular society
and no religion dictates what anyone may or may not say
here. If one follows a religion one may well adopt the restrictions that religion places on speech, but no one can legitimately be forced to do so by means of state power. On the
other hand, he might say:
Look at the treatment accorded Shiites in Sunni
Muslim majority countries such as Pakistan.
Their Mosques are burned, their property is destroyed, their women are raped and their men
murderedall by fellow Muslims. In turn, in Shiite majority countries like Iran or Iraq, Sunnis are
sometimes treated in similar fashion. Look at the
horror currently being played out in Syria, Iraq,
Yemen, Jordan, Libya, or Egypt.468 As I speak, followers of Islam in Syria and Iraq are beheading
468
He might even read to her this letter to the editor of the Financial Times of
August 22, 2013 by a Mr. K. N. Al-Sabah, which might act as a field guide to
help clarify for her the politics of the Middle East today. In it he says: Sir, Iran
is backing Assad. Gulf states are against Assad! Assad is against Muslim Brotherhood. Muslim Brotherhood and Obama are against General Sisi. But Gulf
states are pro-Sisi. Which means they are against Muslim Brotherhood! Iran is
pro-Hamas, but Hamas is backing Muslim Brotherhood! Obama is backing
372
Conclusion
373
Conclusion
374