Reason.com

Free Minds & Free Markets

Kindly Inquisitors, Revisited

Twenty years on, the case for restricting speech in the name of tolerance is weaker than ever.

In 1993, reason published an essay by Jonathan Rauch derived from his book Kindly Inquisitors: The New Attacks on Free Thought. In it, he defended what he called "liberal science"-liberal societies' open-ended, decentralized system for developing knowledge by subjecting ideas, and often their proponents, to public criticism-from then-newfangled attacks by those who sought to protect minorities from excoriating or discriminatory speech.

This month, on the book's 20th anniversary, the Cato Institute and the University of Chicago Press are publishing an expanded electronic edition of Kindly Inquisitors. This essay is adapted from the author's new afterword.

Twenty years ago, in 1993, Salman Rushdie was a hunted man. Iran had sentenced him to death for writing a novel that allegedly defamed Islam; governments and intellectuals in the West had responded with a measure of defiance, but a larger measure of ambivalence and confusion. Was Rushdie entitled, really, to write a book that he could have anticipated would deeply offend Muslims?

In 1998, as part of an agreement to restore diplomatic relations with Great Britain, the Iranian government formally withdrew its support from the fatwa against Rushdie, and the author resumed public life. But Rushdie's freedom has not put to rest the Rushdie affair. The fatwa's report echoed loudly in 2005 when a Danish newspaper published cartoons, some of them provocative, depicting the Prophet Muhammad. The resulting uproar occasioned, in the West, a chaotic mix of confusion, apology, and defiance, not unlike that which met the Rushdie affair.

The Danish government said, "Freedom of expression is the very foundation of the Danish democracy," but then went on to say, "However, Danish legislation prohibits acts or expressions of a blasphemous or discriminatory nature." When Danish authorities chose not to prosecute the cartoons' publisher, death threats and violent protests around the world led to the murders of several hundred people. In France and Canada, publications that republished the cartoons found themselves under government investigation for inciting hatred or violating human rights. Ultimately, they were not prosecuted. It would be fair to say that the West's defense of intellectual freedom was ringingly ambivalent. The more things change…

Today, what I called in 1993 "the new attacks on free thought" are no longer new. The regulation of speech deemed hateful or discriminatory or harassing has spread internationally and dug in domestically. In the United States, hate-speech laws as such are unconstitutional. But indirect, bureaucratic prohibitions have burrowed into workplaces and universities. Federal law holds employers civilly liable for permitting the workplace to become a "hostile environment"-a fuzzy concept which has been stretched to include, for example, a Bible verse printed on a paycheck (could upset an atheist) or a Seventh-Day Adventist's discussion of religion ("religious harassment" because it "depressed" a plaintiff).

Unlike most workplaces, universities are at the heart of intellectual life, and so the bureaucratization of speech controls there is more disturbing. In American universities, the hostile-environment and discriminatory-harassment doctrines have become part of the administrative furniture. "Most colleges and universities in the United States have instituted what are in effect speech codes," write the law professors Arthur Jacobson and Bernhard Schlink, in their contribution to the 2012 collection The Content and Context of Hate Speech: Rethinking Regulation and Responses. "The codes range widely in the speech they prohibit," but even the narrower ones "can define harassment more broadly than have the federal courts." Moreover, "colleges and universities are noticeably reticent to afford defendants in campus adjudications procedural protections that in federal and state courts are routine and necessary."

Alas, these sorts of bureaucratic controls have become a background thrum of academic life. They sometimes run into challenges when they go too far in particular cases-as when Brandeis University found a professor guilty of racial harassment for explaining the origin of the word wetbacks. But the idea that minority rights justify speech codes and quasi-judicial inquisitions is barely controversial among academic administrators. History will someday wonder how the very people who should have been most protective of intellectual freedom took such a wrong turn.

Abroad, without a First Amendment to act as a buffer, direct government restrictions on hate speech have become the norm, enacted by many countries and encouraged by several human rights treaties. Miklós Haraszti, of Columbia University's school of international and public affairs, writes of "a growing, punitive trend that is introducing new speech bans into national criminal codes. Most of them target bad speech specific to the country or to the worries of its ruling parties, the two being practically indistinguishable." The United States and Hungary, according to the British political theorist Bhikhu Parekh, are the only countries which have recently resisted the trend to ban hate speech. (He and Haraszti write in The Content and Context of Hate Speech.)

But there is good news, too. Frontal humanitarian and egalitarian attacks on the legitimacy of liberal science-our decentralized, criticism-based global system for developing knowledge -have waned. Arguments for restricting speech in the name of equality and compassion are more sophisticated and concomitantly more modest.

Version 2.0 of the case for bans on speech relies less on metaphorical notions like "words that wound" and "verbal violence," which could mean almost anything. Instead it looks to a narrower hostile-environment doctrine which justifies penalties only in relatively extreme cases, such as when speech seems likely to create a pervasively demeaning or threatening social environment for recently persecuted minorities, denying them (the theory goes) equal status as fully protected citizens. "Offensiveness by itself is not a good reason for legal regulation," writes Jeremy Waldron, a law professor at New York University, in his fine 2012 book, The Harm in Hate Speech. "Where there are fine lines to be drawn the law should generally stay on the liberal side of them."

I don't think Version 2.0 has succeeded in answering the challenges that I and others have posed. It has not demonstrated that hate speech silences minorities, rather than mobilizing or energizing them; it has not shown that restrictions ameliorate hate or silence haters, rather than intensifying hate and publicizing haters. It has not figured out how to make political authorities interpret and enforce political restrictions apolitically, or how to prevent majorities and authorities from turning restrictions to majoritarian and authoritarian ends. It does not reckon the cost of overdeterrence and of chilling important but controversial conversations; or the cost of stereotyping minorities as vulnerable and defenseless; or the cost of denying the agency of the listener, who, after all, can choose how to react to the maunderings of haters. It has yet to enunciate a limiting principle. Why, after all, stop with speech deemed harmful to minorities, when there is so much other socially harmful speech in the world? Doesn't it harm society to let climate-change deniers yammer on?

But save those arguments for another day. I want to try to answer the deepest challenge that Version 2.0 poses. It is an epistemological challenge, and it goes like this:

Some ideas actually are false, and at some point the process of checking establishes their falsehood so firmly that to proceed as if they might be true becomes ridiculous. For example, Holocaust denial: Isn't it a stretch to claim we can learn something by debating neo-Nazis about the existence of gas chambers? Fallibilism is all well and good, but come on-enough is enough. In the 21st century, do Jews really need to put up with The Protocols of the Elders of Zion, a notorious anti-Semitic fraud? Shouldn't governments at least be allowed to regulate the most injurious of lies in the most blatant of cases?

As for enforcement, it may not be perfect, but what ever is? Even though politicians and courts won't always strike the right balance between free speech and minorities' dignity, they won't always get it wrong, either; the solution is to do a better job of balancing, not to throw away the scales. And we must not overlook the specific effects on minorities; it doesn't seem fair to sacrifice their interests on the altar of free speech. Do gays and Jews benefit from toleration of homophobic or anti-Semitic claptrap?

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.…[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.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • DEATFBIRSECIA||

    Heard him on Penn's Sunday School telling the story of Frank Kameny, one of the original gay activists, well worth listening to.

    http://www.ace.noxsolutions.com/?pid=251427

    Also we get to hear Rauch defend his "keep the government in marriage," position against an admittedly outmatched Penn Jillette. While I agree with Jillette that government should just get the fuck out, I really enjoyed hearing Rauch make his point.

  • Eduard van Haalen||

    "Unlike most workplaces, universities are at the heart of intellectual life, and so the bureaucratization of speech controls there is more disturbing."

    Bollocks - most normal people spend at most a few years at a university, and their interest is generally in a marketable degree and/or drinking themselves into a stupor, not sitting around in the Agora debating the great issues.

    In contrast, people spend a majority of their lives in the workplace, and though workplaces in general have never been free speech zones, the govt is encouraging employers to be more repressive than before - and then the private sector gets blamed for the censorship, leading to more calls for govt intervention. Employers who want a freewheeling work atmosphere will have to think twice lest they later be found to have allowed a "hostile environment."

    "the very people who should have been most protective of intellectual freedom"

    As applied to academics, this is bollocks. They defended their own speech, and the speech of people they sympathized with. When it came to speech they *didn't* like - look at the behavior of German professors and students under Weimar, and this in the country which invented "academic freedom." In the great and glorious Sixties, the profs looked the other way as a minority of students trashed their institutions, including shouting down conservative speakers, which still happens today.

  • mtrueman||

    I agree with a lot of this. I too am puzzled that when freedom of speech in the work place is discussed, it is almost certainly about the academic workplace which compared to the daily workplace that most of us inhabit is a bastion of freedom. When most workers punch the clock, they routinely alienate their rights of speech, not to mention the indignity of submitting to requests to produce urine samples etc.

    The 60's was a time of youthful rebellion and iconoclasm. It's obviously going to affect colleges. For greater influence, look at the army. 60's militancy also brought an end to the conscripted military.

  • ||

    I thought the word was "bullocks" ? A condensation of bull cocks ?

  • Tagalog||

    Ballocks and bullocks are two different things.

  • ReasonableS||

    I had someone in this forum state they wished I would kill myself and that I would take my family with me into death. It wasn't a death threat, but it was very hateful. No one challenged his hateful speech except for me. If we want to keep speech as free as possible even hate speech we need to challenge it when it occurs. There has to be social consequences to hate speech otherwise when the hate speech if followed by violence there will be a growing pressure to create legal consequences and that puts control over speech with the government and not with the people.

    Freedom of speech is not freedom from consequences speech. My opinions are not common in this forum and I have to face the consequences that stating unpopular opinions brings. Why shouldn't people who promote hate or violence in their speech not have to face their consequences? If you view me as your enemy and feel comfortable telling me that I am an idiot or of low moral character, why aren't you willing to challenge your friends when they go overboard and promote hate or violence?

  • Azathoth!!||

    Here, try this--

    Sticks and stones may break my bones,
    But names can never hurt me.

    Now grow the fuck up.

  • ||

    Bingo ! We have a winner.

  • ||

    If there are consequences to their speech they will have to face them. If there are no consequences they will not.

    Obviously there are no consequences to wishing for an anonymous username on the internet to die.

    Have you tried therapy ?

  • Acosmist||

    Hate speech is protected. So fuck straight off.

  • ReasonableS||

    Very few of you who responded to my post added anything of substance. You just engaged in personal attacks. Shouldn't the response to my freedom of thought be criticism of my thoughts and not personal attacks? Shouldn't your response to "hate" speech be criticism of that speech? I am not trying to stop hate speech I am trying to encourage criticism of it just as attempts to criminalize hate speech is criticized. I am not complaining about the existence of hate speech, but rather the lack of critical response to it.

    If you want to avoid criminal consequence of hate speech then social consequences is a step in that direction.

  • Beezard||

    In the current environment social criticism of "hate speech" is really quite abundant.

    Creating a climate of fear and training other humans to immediate attack or disregard someone else's speech or ideas because they don't conform to a fashionable premeditated socio-political world view often indoctrinated from the top down is more along the lines of intellectual terrorism than organic social change.

    It's not necessarily the way to convince any one of anything. It's usually not convincing its brow beating.

  • mtrueman||

    I am tempted to see this as when a door of freedom opening on one side of the house, another door on the other side comes slamming shut. We beg the government to foster inclusivity with minorities, and when they comply, the rest of us find our lives just a little more impoverished. In this case we find our rights to say hateful things about gays curtailed.

  • grey||

    Why do I cringe when I read a liberty or right and then the word, however? What follows usually takes everything...I mean everything away from the initial assertion of rights.

  • mtrueman||

    "What follows usually takes everything...I mean everything"

    But it's not everything. The advances made by minorities like gays are very real and concrete. The set backs, like the hate speech restrictions, are also real, and I see them as linked. With rights, necessarily come responsibilities, and when we rely on government to guarantee rights, they will inevitably impose responsibilities.

  • mememine69||

    Climate change believers are like Rob Ford; they never even knew what the consensus was everybody was agreeing on.

    We are climate change deniers because we know science has NEVER agreed it WILL be a crisis with a consensus of nothing beyond "could be" a crisis so what gives YOU the right say it WILL? You remaining believers cannot say a crisis will happen, only could.

    You MUST respect the word of science that after 30 years of intensive CO2 research has NEVER said or agreed any crisis WILL happen or is "inevitable" or "eventual".

    If "maybe" is good enough for you to condemn your own children and billions of others to a catastrophic climate crisis that only YOU is saying will happen, you don’t love the planet you just hate humanity itself.

    Only news editors, you doomers and politicians are saying a crisis will happen, science has NEVER said it WILL. Stop your needless CO2 panic and fear mongering before history calls 30 years of this Reefer Madness of climate blame a pure war crime.

    The only crisis you remaining believers have to worry about is how your grand kids will explain to their kids how you condemned them with such sickening childish glee and at the mere grunt of a headline to the worst crisis imaginable; a climate crisis.

  • Jimbo BTR||

    Here in Australia we have a number of different varieties of climate-change doomers (catastrophists is a more accurate term but doesn't roll off the tongue as nicely).

    There are the "sea-changer's", who move to be closer to the ocean and then blame "climate change" when a storm wrecks their houses.

    There are "tree-changer's", who move out to the country to be closer to nature and then blame "climate-change" when a bush-fire razes their houses.

    Then there are "river-sider's", who pay large sums to have a water-front view and then blame "climate-change" when the river floods their homes.

    Plus we have all the usual left-wing nutbags you find elsewhere. It's just that those above are often otherwise normal people.

  • Jimbo BTR||

    (cont.)

    Storms, fires and floods have always occurred. The real change is that more people are living in areas that are prone to these events. When they do occur, the damage is greater and affects more people. On top of that, you have 24 hour news coverage of these events so, people who are otherwise unaffected are more aware of them than ever.

    These things plus a high level of scientific illiteracy and a low level of critical thinking among the general populace have conspired to give doomers a veneer of respectability, which will only be stripped away when the average person realizes how much it's going to cost them personally when governments pursue policies based on such foolishness.

    When rises in the cost of utilities outstrips the rate of inflation by significant margins for a few years, people will suddenly find that not being able to afford to light, heat or cool their houses now means a lot more to them than what "might" happen in a hundred years time.

    At that point, if they also find out that the "developing" world has no intention of stopping or even slowing down its modernization and that this will more than offset any cuts to emissions the "first" world makes, then the game is truly up. The great AGW scam will have run its course and the doomers will have to find another game to play.

  • sheila124||

    my best friend's ex-wife makes $74 an hour on the laptop. She has been out of work for five months but last month her pay was $21054 just working on the laptop for a few hours. explanation..........................

    ⌘⌘⌘⌘⌘⌘⌘
    http://www.tec30.com
    ⌘⌘⌘⌘⌘⌘⌘

  • Beezard||

    Mr. Humphries on "Are you being served?" had more to do with relaxing anti-gay sentiments and smoothing the way for gay rights than a thousand college professors and their quasi-Maoist attempts at creating a climate of fear around saying certain words or expressing certain ideas.

  • Tagalog||

    "(L)iberal science?" Is that anything like "Jewish science?"

  • John Hicks||

    The link (in the second paragraph) to the book at University of Chicago Press is broken. Looks like the correct link is:
    http://press.uchicago.edu/ucp/.....40749.html

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online