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 changeâ€¦
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. MiklÃ³s 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.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.