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I believe the answer is yes. Society benefits from the toleration of hate speech, and so do targeted minorities.
Today's narrower, Version 2.0 argument for hate-speech laws asks us to imagine a really hard case: not a society where people say offensive things in random directions now and then (which should be allowed), but one where (in Jeremy Waldron's words) vulnerable groups "have to live and go about in a society festooned with vicious characterizations of them and their kind and with foul denigrations of their status.â€¦[T]he upshot might be that they would avoid much public life or participate in it without the security that the rest of us enjoy; either that, or they would have to summon up (from their own resources) extraordinary reserves of assurance as they went about their business, a burden that is not required of the rest of us." Surely, in so extreme a case, promising to punish violence or discrimination after the fact is not enough; surely, in this case, laws preemptively suppressing bigotry are appropriate?
Such societies exist. I grew up in one, because I was born in the United States in 1960, and I am homosexual.
You may remember those days. Gay Americans were forbidden to work for the government; forbidden to obtain security clearances; forbidden to serve in the military. They were arrested for making love, even in their own homes; beaten and killed on the streets; entrapped and arrested by the police for sport; fired from their jobs. They were joked about, demeaned, and bullied as a matter of course; forced to live by a code of secrecy and lies, on pain of opprobrium and unemployment; witch-hunted by anti-Communists, Christians, and any politician or preacher who needed a scapegoat; condemned as evil by moralists and as sick by scientists; portrayed as sinister and simpering by Hollywood; perhaps worst of all, rejected and condemned, at the most vulnerable time of life, by their own parents. America was a society permeated by hate: usually, it's true, hateful ideas and assumptions, not hateful people, but hate all the same. So ubiquitous was the hostility to homosexuality that few gay people ever even dared hold hands in public with the person they loved.
Obviously, passing a hate-speech law to protect homosexuals, much less enforcing one, was not on anyone's agenda. The very idea would have seemed preposterous. Any hate-speech law which might have passed would have targeted gay people (in the name of defending children), not protected us.
The case for hate-speech prohibitions mistakes the cart for the horse, imagining that anti-hate laws are a cause of toleration when they are almost always a consequence. In democracies, minorities do not get fair, enforceable legal protections until after majorities have come around to supporting them. By the time a community is ready to punish intolerance legally, it will already be punishing intolerance culturally. At that point, turning haters into courtroom martyrs is unnecessary and often counterproductive.
In any case, we can be quite certain that hate-speech laws did not change America's attitude toward its gay and lesbian minority, because there were no hate-speech laws. Today, firm majorities accept the morality of homosexuality, know and esteem gay people, and endorse gay unions and families. What happened to turn the world upside-down?
What happened was this. In 1957, the U.S. Army Map Service fired an astronomer named Franklin Kameny after learning he was gay. Kameny, unlike so many others, did not go quietly. He demanded reinstatement from the U.S. Civil Service Commission and the Congress. When he got nowhere, he filed a Supreme Court brief. "In World War II," he told the Court, "petitioner did not hesitate to fight the Germans, with bullets, in order to help preserve his rights and freedoms and liberties, and those of others. In 1960, it is ironically necessary that he fight the Americans, with words, in order to preserve, against a tyrannical government, some of those same rights, freedoms and liberties, for himself and others."
In 1965, Kameny led dignified gay-rights demonstrations, the first of their kind, in front of the White House and Philadelphia's Independence Hall. (Signs said: "Denial of equality of opportunity is immoral." "We demand that our government confer with us." "Private consenting sexual conduct by adults is NOT the government's concern.")
In 1969, gays rioted against police harassment in New York. In 1970, two gay student activists, Jack Baker and Michael McConnell, walked into a county clerk's office in Minnesota and asked for a marriage license. Much, much more was to come.
In ones and twos at first, then in streams and eventually cascades, gays talked. They argued. They explained. They showed. They confronted. If the pervasiveness of bigotry was supposed to silence them, as hate-speech allegedly does, Frank Kameny missed the memo. "If society and I differ on something," he said in 1972, "I'm willing to give the matter a second look. If we still differ, then I am right and society is wrong; and society can go its way so long as it does not get in my way. But, if it does, there's going to be a fight. And I'm not going to be the one who backs down."
Kameny and others confronted the psychiatric profession about its irrational pathologizing of homosexuality, bombarded the U.S. Civil Service Commission with demands that it end the ban on gay government employment, and confronted Christians with their hardly Christ-like conduct. "If your god condemns people like me for the crime of loving," Kameny would say, "then your god is a false and bigoted god." In the 1980s and early 1990s, a few visionaries-Andrew Sullivan, Evan Wolfson-argued that gay couples should be allowed to marry, a cause seemingly so hopeless that even many gay people hesitated to endorse it.
Frank Kameny lost every appeal to get his job back; the Supreme Court refused to hear his case. In 1963, he launched a campaign to repeal the District of Columbia's sodomy law and lost (that effort would take three decades). He ran for Congress in 1971 and lost. But at every stage he fired moral imaginations. He and others saw Jerry Falwell and Anita Bryant not as threats to hide from but as opportunities to be seized: opportunities to rally gays, educate straights, and draw sharp moral comparisons. "Is that what you think this country is all about? Really?"
To appeal to a country's conscience, you need an antagonist. Suppression of anti-gay speech and thought, had it been conceivable at the time, would have slowed the country's moral development, not speeded it. It would have given the illusion that the job was finished when, in fact, the job was only beginning. It would have condescended to a people fighting for respect.
I am not naive about the bravery it took for Kameny and others of his generation to step forward. They were hammered. They suffered severely. Kameny lived long enough to be honored by President Obama and, in 2009, to receive an official government apology from the U.S. Office of Personnel Management, which by then was headed by an openly gay man. But most of us are not Kamenys.