Hate Speech: The History of an American Controversy, by Samuel Walker, Lincoln, Nebr.: University of Nebraska Press, 217 pages, $11.95 paper
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.
Furthermore, Ehrlich is even quicker to cry racism than Walker is. In a follow-up report published in 1992, he says "the role of right-wing and highly conservative organizations has been a somewhat understated dimension of campus ethnoviolence." In this section he lumps together the centrist National Association of Scholars and the conservative Madison Center for Educational Affairs with the White Student Union. "These organizations function (sociologically) to provide the intellectual and moral justification for social inequalities," he explains. "They promote values of individualism, meritocracy, and hierarchy that are essentially elitist." Thus Ehrlich believes that the sinister forces of individualism and meritocracy encourage ethnoviolence.
At this point you may be wondering what, exactly, Ehrlich means by "ethnoviolence." It isn't what you might think. He writes:
"There is, in law and folkways, a distinction between physical violence and psychological violence. The Institute makes no such distinction and, in fact, regards it as a conceptual error. Harassment and intimidation are generally motivated by an intent to inflict psychological injury. Further, such injury may have longer-lasting consequences for the victim than a physical assault. Accordingly, the definition of violence used here includes such verbal and interpersonal acts as harassment, ridicule, threats, insult and ethnic slurs."
The trick of transforming speech into "verbal acts" of "psychological violence" is the subject of Franklyn S. Haiman's book. "Speech Acts" and the First Amendment is a sharply focused rebuke of the idea that certain kinds of speech are not really speech and therefore fall outside the scope of the First Amendment. Haiman, a professor of communication studies at Northwestern University and a vice president of the ACLU, recognizes that this sort of reasoning threatens the distinction between word and deed that underlies the liberal tolerance for diversity of opinion. "Speech is not the same as action," he writes, "and if it were, we would have to scrap the First Amendment." He carefully dissects the major rationales for treating offensive speech like a crime or tort.
Haiman writes: "What has converted speech into a speech act for those who choose to define it that way—be it fighting words, obscenity, racist slurs, orders, or threats—are the ideas or meanings that have been communicated to persons who understand them. One can call it an act if one wishes to—as Humpty Dumpty in Through the Looking Glass observed, you can name anything whatever you want to—but it is essentially a symbolic, not a physical, transaction. And though it is true that symbols can, and commonly do, arouse physiological as well as mental responses in their audience, the mental response comes first and mediates what follows. Without a response of the mind, nothing follows, for nothing has been comprehended."
Haiman therefore rejects the idea of "situation-altering utterances" (such as orders or promises), noting that something beyond mere words—at the very least, the listener's interpretation—is always required for the utterance to have an effect. Similarly, he observes that the impact of fighting words and incitement hinges on the reactions of the people to whom they are addressed. The target of a racial epithet has to understand the message and decide how to respond—whether with silence, a rejoinder, or a fist. The same is true of a rabble-rouser's audience. When a conscious mind intervenes between speech and action, nothing is inevitable.
In his chapters on hate speech and sexist speech, Haiman criticizes the analytical sloppiness of theorists who confuse metaphor (hearing an epithet "is like receiving a slap on the face," watching pornography is like "the sex act itself") with reality. And he notes the danger of punishing people for inflicting emotional distress, which can never be verified or measured: It is literally all in the victim's mind.
Nevertheless, Haiman tries to rescue the concept of "hostile environment" sexual harassment, which often hinges on how speech makes an employee feel. And although he recognizes the free-speech issues raised by laws that punish crimes more severely when they are motivated by bigotry, he concludes that "the dangers that hate crimes pose to society" outweigh "the relatively minimal intrusions into the First Amendment arena that a carefully drafted enhanced-penalty law may entail."
Haiman's conclusions about sexual harassment and hate-crime laws illustrate a basic problem with his view of free-speech rights. "I do not claim that because freedom of speech is implicated it will necessarily prevail over all other possible competing interests," he writes. "Some symbolic behavior may be so harmful that we are justified in restraining it, but not because a court or legal theorist has labeled it a speech act entirely beyond the purview of the First Amendment."
Thus Haiman would follow the Supreme Court's usual approach of "weighing" freedom of speech against other factors. But this sort of calculus opens the door to all manner of arbitrary preferences and evaluations. Indeed, hate-speech censors could very well concede that bigoted expression "implicates" the First Amendment but argue that it is "so harmful that we are justified in restraining it." Admittedly, it is harder to ban speech when justification is required. But given what has passed for justification in the areas of obscenity and commercial speech, that barrier can be easily overcome.
In Kindly Inquisitors, Jonathan Rauch weighs in on the positive side of the cost-benefit analysis that Haiman would apply to speech. Rauch, a contributing editor at National Journal, offers an eloquent elaboration of Mill's argument that the pursuit of knowledge depends on free speech. The "liberal social system for sorting truth from falsehood," he writes, rests on the principle that the "checking of each by each through public criticism is the only legitimate way to decide who is right." That principle of "liberal science," the basis of Western intellectual progress since the Enlightenment, is today threatened by egalitarians who consider it elitist and humanitarians who consider it cruel.
Rauch concedes much of what the egalitarians and humanitarians have to say. Liberal science does indeed exclude certain people (those who refuse to play by the rules), and it does indeed hurt people's feelings (by rejecting their ideas). But he argues that any attempt to avoid those consequences would destroy the best system human beings have ever come up with for generating knowledge. "Let us be frank, once and for all," he writes. "Creating knowledge is painful, for the same reason that it can often be exhilarating. Knowledge does not come free to any of us; we have to suffer for it." To the people who are offended or feel left out, he says: "Too bad. You'll live."
Like Haiman, Rauch firmly resists the sophistry of those who decry "verbal violence," such as the University of Michigan law professor who said, "To me, racial epithets are not speech. They are bullets." Rauch writes: "My own view is that words are words and bullets are bullets, and that it is important to keep this straight. For you do not have to be Kant to see what comes after `offensive words are bullets': if you hurt me with words, I reply with bullets, and the exchange is even."
Rauch is good at anticipating his opponents' counter-arguments, and he responds to them at length. He frequently returns to the same point: No centralized authority can reliably distinguish between the sort of speech that is useful, and therefore should be allowed, and the sort of speech that only causes anguish, and therefore should be banned. Knowledge making has to be left to the scattered judgments of many minds, the "checking of each by each," with the understanding that "no one has personal authority" and "no one gets the final say."
As Rauch acknowledges, liberal science has much in common with a market economy. Both are forms of spontaneous order in which the participants follow certain basic rules but no one dictates the outcome. Both are defined by process rather than results. But there is more than an analogy here. The basic rules of a market economy, established by property rights and contract, make it possible to exercise freedom of speech. They allow me to speak on my telephone, write on my computer, burn my flag, and shout "fire" in my living room. But they forbid me to speak on your telephone, write on your computer, burn your flag, or shout "fire" in your living room, unless I have your permission.
Under a free-speech framework grounded in property and contract, the government may prohibit only speech that violates someone else's rights. That would include the speech involved in acts of fraud ("I swear, it's a Rolex") and extortion ("Give me your wallet, or I will pummel you to death"). It might include defamation and copyright violations, depending upon your view of reputation rights and intellectual property rights. But it certainly would not include hate speech, pornography, sexual harassment, truthful advertising, conspiracy, or incitement.
This approach, familiar to libertarians but foreign to most defenders of the First Amendment, avoids the problem of weighing the costs and benefits of speech on a case-by-case basis. It offers a much-needed principle to distinguish between proscribable and protected speech. It is not perfect, and it may not be the only workable solution. But until civil libertarians address the issue of where free speech ends and why, their response to the censors—however thoughtful and trenchant—will never be completely satisfying.