Tolerating Intolerance: Why Hate Speech Is Free Speech
A version of this blog post appeared in the Hamilton College Spectator in two parts, on October 7, 2004, and October 14.
Fyodor Dostoyevsky once said that we can judge a society’s virtue by its treatment of prisoners.
Likewise, we can judge a society’s freedom by its treatment of minorities. For freedom makes it safe to be unpopular; this is why the First Amendment fundamentally protects dissent. Playing the title character in the movie The American President (1995), Michael Douglas crystallizes the point: “‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”
This is of course a Tinseltown vision, familiar more from the mind of Voltaire than in daily life. What if the speaker were calling interracial marriage “a form of bestiality,” a la Matt Hale of the Creativity Movement (formerly the World Church of the Creator)?[1] What if the speaker were waving a placard that says, “God Hates Fags,” a la supporters of Jael Phelps, a candidate for city council in Topeka, Kansas?[2] What if the speaker were suggesting that “more 9/11s are necessary,” a la professor Ward Churchill?[3]
Such notions represent so-called hate speech, which critics seek to criminalize. They argue that speech is a form of social power, by which the historically dominant group, namely, male WASPs, institutionally stigmatizes and harasses the Other. In this way, mere epithets can inflict acute anguish, so that certain words become inherently abusive, intimidating and persecutory. Explains Daniel Jonah Goldhagen, a historian of the Holocaust: We should view such “verbal violence . . . as an assault in its own right, having been intended to produce profound damage—emotional, psychological, and social—to [one’s] dignity and honor.”[4] Adds law professor Charles Lawrence, “The experience of being called ‘nigger,’ ‘spic,’ ‘Jap,’ or ‘kike’ is like receiving a slap in the face.”[5]
Now, that words are never just words, critics are right. With words, a speaker can reach into your very soul, imprinting searing, permanent scars. With words, a speaker can incite individuals to insurrection or vigilantism. Words are weapons. Yet words are always just words, since the breaking of sound waves across one’s ears is qualitatively different from the breaking of a baseball bat across one’s back.[6] Put simply, sticks and stones may break my bones, but words can never truly hurt me.
Specifically, as physical acts, deeds entail consequences over which one has no volition; an engaged fist hurts, whether one wants it to or not. By contrast, one can control one’s reaction to language; to what extent a locution harms one depends ultimately on how one evaluates it.[7] After all, taking responsibility for one’s feelings distinguishes adults from adolescents. Thus, as law professor Zechariah Chafee puts it, banning hate speech “makes a man a criminal . . . because his neighbors have no self-control.”[8] Indeed, with torture chambers in Egypt, genocide in the Sudan and suicide bombing in Israel, equating words with violence is odious. As writer Jonathan Rauch notes, “Every cop or prosecutor chasing words is one fewer chasing criminals.”[9] Plus, if we want to ban speech because it inspires violence, doesn’t history demand that we start with our most beloved book—the Bible—in whose name men have conducted everything from war to inquisition to witch burnings to child abuse?[10]
Still, critics assert that hurling forth scurrilous epithets silences people. The wound is so instantaneous and intense that it disables the recipient. But the law should be neither a psychiatrist nor a babysitter; it should not promote the message, “Peter cast aspersions on Paul. Ergo, Paul is a victim.” That lesson only entails a race to the bottom of victimhood, and implies that one should lend considerable credence to the opinions of bigots. To the contrary, one should recognize that the opinions of bigots are the opinions of bigots.
Consider an incident from the spring of 2004 at Hamilton Collee, wherein one student, face to face with another, called him a “fucking nigger.” Far from cowering, the black students on campus, with the full-throated support of their white peers and faculty, reacted with zeal. Just as the American Civil Liberties Union (A.C.L.U.) predicted 10 years earlier: “[W]hen hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.”[11] Sure enough, with a newly formed committee, a protest, a petition, constant discussion, letters to the editor and articles in the school newspaper, this is exactly what ensued. As if stung, the community sprang into action and bottom-up, self-censorship obviated top-down, administrative censorship.
This is likewise the case outside the ivory tower, since as a practical matter, the more outrageous something is, the more publicity it attracts. Perhaps the most famous example comes from the late 1970s, when neo-Nazis attempted to march through Skokie, Illinois, home to much of Chicago’s Jewish population, many of whom had survived Hitler’s Germany. Although the village board tried to prevent the demonstration, various courts ordered that it be allowed to proceed. Of course, by this time, notoriety and counterprotests caused the Nazis to change venues. Similarly, on September 13, 2001, the Christian fundamentalists Jerry Falwell and Pat Robertson accused those who disagreed with their ideology of begetting the terrorist attacks two days earlier. Both have since lost their once-significant political clout.
Better yet, the claim of Holocaust deniers that the Auschwitz gas chambers could not have worked led to closer study, and, in 1993, research detailed their operations. Even the repeatedly qualified, recent musings about gender differences by Harvard president Larry Summers ignited a national conversation about the latest science on the subject. The lesson here is that just as democracy counterbalances factions against factions, so speech rebuts speech. And rather than try to end prejudice and dogma, we can make them socially productive.
For this reason, we should practice extreme tolerance in the face of extreme intolerance. We need not give bigots microphones, but we need to give ourselves a society where, as a 1975 Yale University report describes it, people enjoy the unfettered right to think the unthinkable, mention the unmentionable, and challenge the unchallengeable.[12] Thomas Jefferson got it exactly right upon the founding of the University of Virginia: “This institution will be based on the illimitable freedom of the human mind. For here, we are not afraid to follow truth where it may lead, nor to tolerate error so long as reason is free to combat it.”[13]
Furthermore, with laws built on analogy and precedent, even narrowly tailored restrictions lead to wider ones.[14] Indeed, the transition to tyranny invariably begins with the infringement of a given right’s least attractive practitioners—“our cultural rejects and misfits . . . our communist-agitators, our civil rights activists, our Ku Klux Klanners, our Jehovah’s Witnesses, our Larry Flynts,” as Rodney Smolla writes in Jerry Falwell v. Larry Flint (1988).[15] And since free speech rights are indivisible, the same ban Paul uses to muzzle Peter, Peter can later use to muzzle Paul. Conversely, if we tolerate hate, we can employ the First Amendment for a nobler good, to defend the speech of anti-war protesters, gay-rights activists and others fighting injustice that is graver than being called names. For example, in the 1949 case Terminiello v. Chicago, the A.C.L.U. successfully defended an ex-Catholic priest who had delivered a public address blasting “Communistic Zionistic Jew[s],” among others.[16] That precedent then formed the basis for the organization’s successful defense of civil rights demonstrators in the 1960s and 70s.[17]
And yet critics contend that since hate speech exceeds the pale of reasonable discourse, banning it fails to deprive society of anything important. As much of the Western world has recognized, people can communicate con brio sans calumny. Human history is full enough of hate; shouldn’t we try to make our day and age as hate-free as possible?
Yes, but not as a primary. As writer Andrew Sullivan explains, “In some ways, some expression of prejudice serves a useful social purpose. It lets off steam; it allows natural tensions to express themselves incrementally; it can siphon off conflict through words, rather than actions.”[18] The absence of nonviolent channels to express oneself only intensifies the natural emotion of anger, and when repression inevitably comes undone, it erupts with furious wrath. Moreover, “Verbal purity is not social change,” as one commentator puts it. [19] Speech is a consequence, not a cause of bigotry, and so it can never really change hearts and minds. (In fact, a hate speech law doesn’t even attempt the latter, since it treats as bigots words instead of people.) Rather, a government gun sends the problem underground, and makes bigots change the forms of their discrimination, not their practice of it.
Finally, consider two crimes under a hate speech law. In each, I am beaten brutally, my jaw is smashed and my skull is split in the same way. In the former my assailant calls me a “jerk”; in the latter he calls me a “dirty Jew.” Whereas assailant one receives perhaps five years incarceration, assailant two gets 10. This is unjust for three reasons. First, we usually consider conduct spurred by emotion less abhorrent than that spurred by reason. This is why courts show lenience for crimes of passion, and reserve their greatest condemnation for calculated evil; hence the distinction between first and second-degree murder. A hate speech ban reverses this axiom. Second, such a law makes two crimes out of one, levying an additional penalty for conduct that is already criminal.
Third, the sole reason assailant two does harder time is not because hate motivated him, but because his is hate directed at special groups, like Jews, blacks or gays. Hate crime, then, turns out not to address hate, but politics. For to focus on one’s ideology—regardless of how despicable that ideology is—rather than on the objective violation of a victim’s rights, politicizes the law. Observes writer Robert Tracinski, such legislation “is an attempt to import into America’s legal system a class of crimes formerly reserved only to dictatorships: political crimes.”[20]
In the end, we must make a fundamental decision: Do we want to live in a free society or not? [21] If we do, then we must recognize that the attempt to criminalize hate is not only immoral, it is also impractical. For freedom will always include hate; progress thrives in a crucible of intellectual pluralism; and democracy is not for shrinking violets. As Thomas Paine remarked, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”[22] This, too, is the view of the United States Supreme Court, which in cases like Erznoznik v. Jacksonville (1975) and Cohen v. California (1971) has ruled that however much speech offends one, one bears the burden to avert one’s attention.
What then should we do? If the difference between tolerance and toleration is eradication vs. coexistence, then, as Andrew Sullivan concludes, we would “do better as a culture and as a polity if we concentrated more on achieving the latter rather than the former.”[23]
Footnotes
[1] As quoted in Nicholas D. Kristof, “Hate, American Style,” New York Times, August 30, 2002.
[2] Eric Roston, “In Topeka, Hate Mongering Is a Family Affair,” Time, February 28, 2005, p. 16.
[3] Ward Churchill, Interview with Catherine Clyne, “Dismantling the Politics of Comfort,” Satya, April 2004.
[4] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Knopf, 1996), p. 124.
[5] Charles R. Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal, June 1990.
[6] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.
[7] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.
[8] Zechariah Chafee Jr., Free Speech in the United States (Cambridge: Harvard University, 1941), p. 151.
[9] Jonathan Rauch, “In Defense of Prejudice,” Harper’s, May 1995.
[10] Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (New York: Scribner, 1995), p. 258.
[11] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[12] “Report of the Committee on Freedom of Expression at Yale,” Yale University, January 1975.
[13] “Quotations on the University of Virginia,” Thomas Jefferson Foundation.
[14] Eugene Volokh, “Underfire,” Rocky Mountain News (Denver), February 5, 2005.
[15] Rodney A. Smolla, Jerry Falwell v. Larry Flint: The First Amendment on Trial (Urbana: University of Illinois, 1988), p. 302.
[16] As quoted in Terminiello v. Chicago, 337 U.S. 1 (1949).
[17] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[18] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.
[19] As quoted in [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[20] Robert W. Tracinski, “’Hate Crimes’ Law Undermines Protection of Individual Rights,” Capitalism Magazine, November 16, 2003.
[21] Salman Rushdie, “Democracy Is No Polite Tea Party,” Los Angeles Times, February 7, 2003.
[22] Thomas Paine, “The Crisis,” No. 4, September 11, 1777, in Moncure D. Conway (ed.), The Writings of Thomas Paine, Vol. 1 (1894), p. 229.
[23] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.
Unpublished Notes
Clichés
The vileness of the offense makes it a perfect test of one’s loyalty to the principle of freedom.[1]
Sunlight is the best disinfectant.[2]
Working toward what the free speech scholar Lee Bollinger terms “the tolerant society” by banning intolerance, institutes a do-as-I-say-not-as-I-do, free-speech-for-me-but-not-for-thee standard; our means corrupt our end.
“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”
“I disapprove of what you say, but I will defend to the death your right to say it.”[3]
Speech As Action
“The wounds that people suffer by . . . listen[ing] . . . to such vituperation . . . can be as bad as . . . a . . . beating.”[4]
Granted, such fortitude is idealistic; so is it naïve? Does it trivialize the sincerity or seriousness of one’s pain? Does it intellectualize or universalize something profoundly personal? While the range of responses to hate is vast, the common denominator derives from what Alan Keyes, a former assistant secretary of state, terms “patronizing and paternalistic assumptions. Telling blacks,” for instance, “that whites have the . . . character to shrug off epithets, and they do not. . . . makes perhaps the most insulting, most invidious, most racist statement of all.”[5]
Speech victimizes only if one grants the hater that dispensation.
In the end, one retains the capacity to check, and to exaggerate, the force of input.
As Ayn Rand showed in The Fountainhead, although protagonist Howard Roark endures adversity that would shrivel most men, “It goes only down to a certain point and then it stops. As long as there is that untouched point, it’s not really pain.”
“The only final answer” to hate speech, “is not majority persecution . . . but minority indifference . . . The only permanent rebuke to homophobia is not the enforcement of tolerance, but gay equanimity in the face of prejudice. The only effective answer to sexism is not a morass of legal proscriptions, but the simple fact of female success. In this, as in so many other things, there is no solution to the problem. There is only a transcendence of it. For all our rhetoric, hate will never be destroyed.”[6]
We should not prohibit speech because it leads to violence. The moment one graduates to action—when the harassment turns from verbal to physical taunts—that should be illegal. Then it is no longer a question of taunts, but a question of threats.
Minorities
But don’t minorities deserve special protection? After all, they are invariably the canary in the coalmine of civilization.
At the end of our century, we have once again been faced with an outburst of hatred and destruction based on racial, political and religious differences, which has all but destroyed a country—former Yugoslavia—at least temporarily. Rwanda, Sudan…
But why should an anti-Semite be prosecuted for targeting Jews, while the Unabomber is not subject to special prosecution for his hatred of scientists and business executives? The only answer is that the Unabomber’s ideas are more “politically correct” than the anti-Semite’s.[7]
is, of course, to try minds and punish beliefs.[8]
Hate crime expands the law’s concern from action to thought
But a free-market solution to hate effectively perpetuates the status quo. And though laudable in principle, such a solution lacks force in the face of much of human history, especially the 20th century.
It requires great faith in the power of human reason to believe that people will ultimately become tolerant if left to their devices. Surely, in the absence of the 1964 Civil Rights Act, which among other things banned private discrimination, things would not have changed as much anyway.
“require us to believe too simply in the power of democracy and decency and above all rationality; in the ability of a long, slow onslaught” on bigotry.[9]
[1] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
[2] “Sunlight is said to be the best of disinfectants.” Louis D. Brandeis, Other People’s Money: And How the Bankers Use It (New York: Frederick A Stokes, 1914 [1932]), p. 92.
[3] Evelyn Beatrice Hall, under the pseudonym Stephen G. Tallentyre, The Friends of Voltaire (1906).
[4] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans the Holocaust (New York: Knopf, 1996), p. 124.
[5] Alan L. Keyes, “Freedom through Moral Education,” Harvard Journal of Law and Public Policy, Winter 1991.
[6] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.
[7] Robert W. Tracinski, “’Hate Crimes’ Law Undermines Protection of Individual Rights,” Capitalism Magazine, November 16, 2003.
[8] Jonathan Rauch, “In Defense of Prejudice,” Harper’s, May 1995.
[9] Ursula Owen, “The Speech That Kills,” Index on Censorship, 1998.
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