Bad Words

Jacob Sullum from the August/September 1994 issue

Hate Speech: The History of an American Controversy, by Samuel Walker, Lincoln, Nebr.: University of Nebraska Press, 217 pages, $11.95 paper

"Speech Acts" and the First Amendment, by Franklyn S. Haiman, Carbondale, Ill.: Southern Illinois University Press, 103 pages, $17.50

Kindly Inquisitors: The New Attacks on Free Thought, by Jonathan Rauch, Chicago: University of Chicago Press, 178 pages, $17.95

More than a century ago, John Stuart Mill noted that uncertainty is not the only reason to support open debate. "However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false," Mill wrote in On Liberty, "he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth."

Mill's observation applies to the belief in free speech no less than any other belief. A commitment to freedom of expression is strengthened by controversy and weakened by complacency. So although taking free speech for granted in the United States might be considered a point of pride, it is also a danger.

Most Americans have a warm, fuzzy feeling about the First Amendment, the kind exuded by the Norman Rockwell painting that shows Joe Average rising from his chair at a public meeting to speak his mind. Judging from Joe's facial expression and the reactions of the people around him, he is not saying anything the least bit offensive or threatening. Maybe he is asking for a new stop sign, complaining about an unfilled pothole, or suggesting a bake sale to raise money for the high-school basketball team. Whatever it is, the chances are he'd be able to say it without a constitutional guarantee.

By challenging this banal, uncomplicated view of the First Amendment, the academics and activists who campaign against hate speech and pornography may do us all a favor. The positive results of the renewed drive for censorship include Samuel Walker's Hate Speech, Franklyn S. Haiman's "Speech Acts" and the First Amendment, and Jonathan Rauch's Kindly Inquisitors--three books that will help supporters of free speech transform dead dogma into living truth.

All of these books remind us that freedom of speech is not a settled issue. Historically, the idea that government should not punish people for what they think or say is a relatively recent development, and many millions of people around the world--including religious fundamentalists and authoritarians of various kinds--still do not accept this principle. They have what they consider very good reasons for rejecting freedom of speech, and they are not about to be swayed by Norman Rockwell paintings or pious celebrations of the First Amendment.

In Hate Speech, Walker, a professor of criminal justice at the University of Nebraska and a historian of the American Civil Liberties Union, traces the development of First Amendment law since World War I. He shows that the movement to ban bigoted expression is not new. Since the 1920s, local and state governments have tried to suppress the activities and publications of various racist, anti-Semitic, and anti-Catholic groups. Supporters of censorship have argued that bigoted speech tends to cause violence and disorder.

The censors' arguments were especially strong in the '30s, when fascist organizations staged deliberately provocative demonstrations. Mindful of the tactics that had brought Hitler to power, advocates of anti-fascist measures argued that Nazis should not be permitted to take advantage of the civil liberties they would destroy once they were in charge. Opponents, including the ACLU, drew a different lesson from Nazi Germany: that constitutional rights are the best guarantee against tyranny and the best protection for members of minority groups.

Black and Jewish organizations that initially favored the suppression of racist and anti-Semitic speech eventually came to agree with the ACLU's position. Walker argues that their experience in fighting discrimination convinced them censorship was a mistake: "Their greatest successes came through constitutional litigation on behalf of individual rights. Thus the advancement of minority group rights was pursued through litigation based on claims of individual rights to equal protection, freedom of speech and assembly, and due process of law. Any restriction on individual rights was seen as a threat to the entire fabric of constitutional rights."

Without a strong constituency, Walker says, the movement to censor hate speech petered out. But it left behind a significant legacy. Contemporary advocates of censorship can draw on the work of predecessors such as Karl Loewenstein, a political scientist who argued in the late '30s that cutting corners on civil liberties is sometimes necessary to preserve democracy, or David Riesman, the legal scholar and sociologist who developed the idea of "group libel" in the '40s. And they can cite the U.S. Supreme Court's 1942 decision in Chaplinsky v. New Hampshire, which sanctioned the prohibition of "fighting words": words that "by their very utterance inflict injury" or that "tend to incite an immediate breach of the peace." They can also point to agreements such as the International Covenant on Civil and Political Rights, which says: "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

Walker notes some interesting parallels between the current arguments for banning hate speech and the arguments heard in the '30s and '40s. Richard Delgado's view of hate speech as a tort (the intentional infliction of emotional distress) and Charles Lawrence's view of hate speech as a form of assault are both reminiscent of the reference in Chaplinsky to words that "by their very utterance inflict injury." Mari Matsuda's notion that the danger of hate speech depends upon who says it to whom under what circumstances is similar to David Riesman's idea that context determines whether offensive speech should be tolerated.

Although Walker's explanation for the decline of the movement to suppress hate speech in the '50s is plausible, he falls short in explaining the movement's revival in the '80s, when many colleges and universities adopted restrictions on speech in the name of diversity. "In the 1980s there was an apparent resurgence of racism--or at least its overt expression--across American society," Walker writes. He later describes specific incidents, but he does not offer any evidence of a "resurgence." Furthermore, some of the examples he cites--"the now famous Willie Horton advertisement," The Dartmouth Review's feud with music professor William Cole--are hardly clear cases of racism.

"On college and university campuses in the 1980s," Walker writes, "there was a disturbing pattern of attacks--verbal and physical--on minority group students." Later he refers to "a frightening rash of racist incidents," but he concedes: "It is impossible to say definitively whether there was a real increase in racist events on campus or whether simply more were being publicized. There are no systematic data on such cases." Walker's main source of information about racist incidents at colleges and universities is Campus Ethnoviolence...and the Policy Options, published by the National Institute Against Prejudice and Violence. The booklet, by sociologist Howard J. Ehrlich, includes data from campus surveys and a list of incidents that occurred in 1986, 1987, and 1988, but it does not show a rise in racist activity.