Banning hate speech and the sticks and stones defense.

• Author: Alexander, Larry

Black college students are the targets of racial epithets from fellow students. Members of the American Nazi Party march through the heavily Jewish Chicago suburb of Skokie, wearing brownshirts and swastikas. Female employees encounter various expressions of misogynistic or otherwise female-degrading views from fellow employees or supervisors in the workplace. What these events have in common is that in all of them, the targets of the speech claim that the speech is harmful to them. Moreover, in all of them, the targets have sought to have the hateful speech legally suppressed through injunction (in Skokie),(1) campus hate speech codes,(2) or Title VII's ban on various types of job discrimination.(3) Finally, in all of them, the speakers have raised a first amendment defense against the attempts at legal suppression.

A lot of recent scholarly attention has been focused on these and similar events, most of it concerned with whether and when the first amendment should bar suppression of this "hate speech."(4) In addressing this issue, I, like most of the scholars, shall take "hate speech" to mean epithets conventionally understood to be insulting references to characteristics such as race, gender, nationality, ethnicity, religion, and sexual preference. Such epithets are the central targets of most campus speech codes; and speech codes are unlikely to be drafted or interpreted to apply to more measured expressions of views about race and the like, even if the expressed views are quite odious, because of the obvious first amendment problems raised by any code banning more than epithets. Henry Louis Gates, Jr., has nicely illustrated the crucial distinction I wish to draw:

Contrast the following two statements addressed to a black freshman at Stanford: (A) LeVon, if you find yourself struggling in your classes here, you should realize it isn't your fault. It's simply that you're the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one. The policy's egalitarian aims may be well-intentioned, but given the fact that aptitude tests place African Americans almost a full standard deviation below the mean, even controlling for socioeconomic disparities, they are also profoundly misguided. The truth is, you probably don't belong here, and your college experience will be a long downhill slide. (B) Out of my face, jungle bunny.(5)

The concern with hate speech is a concern with statements like Gates's statement (B). Statement (A) is generally assumed to be within the bounds of protected expression.(6)

It is generally accepted by those on both sides of this issue that hate speech is harmful. The only question is whether, notwithstanding its harmfulness, hate speech should be considered constitutionally protected free speech. It is my aim in this brief essay to examine more closely the claim of harm. Exactly how does hate speech harm its targets in paradigmatic contexts? Among the. questions I shall ask are whether it is really the speech that is harmful, rather than what the speech reveals, and whether, when it is the speech and not the revealed knowledge that is harmful, the speech is harmful precisely for reasons that should make it constitutionally protected. Finally, I shall ask whether those who seek suppression of hate speech are really seeking to be free of the harm it imposes or are instead more ominously seeking suppression as an end in itself.

Before turning to the claim that hate speech is harmful, I should say something about the contours of the constitutional protection of speech that provides an essential background for my analysis of the issue. Although there are several general theories put forward by scholars and jurists to justify freedom of speech and its constitutional embodiment in the first amendment, these theories generally converge on one central proposition. More importantly perhaps, this proposition has been endorsed by the Supreme Court and represents settled first amendment law. Put very simply, this proposition is that government may not impose criminal or civil sanctions on speech because of its content, particularly because the content is, in the government's view, wrong, dangerous, offensive, or disturbing. As put by constitutional scholar Laurence Tribe, "[I]f the [first amendment] guarantee means anything, it means that, ordinarily at least, `government has no power to restrict expression because of its message, its ideas, its subject matter, or its content....'"(7) The general view reflected in both the theories of freedom of speech and the Supreme Court's first amendment jurisprudence is that it is better to let false or pernicious ideas compete in the marketplace of ideas, where they are unlikely to prevail in the long run, than to trust government to distinguish the false from the true and the pernicious from the beneficial.

There are, of course, several exceptions to the first amendment's proscription of governmental control of the content of speech. Whether or not these exceptions are well-justified, what is important for my purposes is that none of these exceptions is relevant to the hate speech issue. For example, hate speech is not usually an incitement to crime, a disclosure of a protected secret or confidence, a violation of copyright, a defamatory injury to reputation, the commission of fraud or perjury, or a misleading commercial claim.(8) What I intend to show is that paradigmatic hate speech, if harmful, is harmful only in ways that cannot justify its prohibition without gutting our constitutional conception of freedom of speech. Whatever controversies surround first amendment jurisprudence and its theoretical rationale do not concern me, for here I operate squarely within the first amendment's settled core. My interest lies with hate speech and the harms attributed to it, not with the first amendment.

1. THE CLAIMS OF HARM

   Hate speech is alleged to be harmful in several different ways. First, it is insulting, and insults are psychologically wounding and cause emotional distress.(9) Second, it creates unequal opportunity in the school and workplace environments.(10) Third, it silences those who are its targets, depriving them of their freedom of speech.(11) Fourth, it offends by flouting social norms regarding proper verbal behavior.(12) And, fifth, its expression is a speech act that shows disrespect for or even subordinates its targets.(13)

   There is no gainsaying the first type of harm hate speech causes, the harm of psychological pain. What is interesting about this type of harm is not its existence but its connection to the hate speech that causes it. I shall examine this connection in the next section.

   The next two types of harm - unequal opportunity and loss of freedom of speech - are much more problematic. They would be unproblematic if the claim on their behalf were merely that those who suffer insults are less likely than others to perform up to their potential or to participate in the public exchange of ideas. That claim may well be true, but it would add little to the claim that we should protect people from the harm of insult. All of the discussion of unequal opportunity and "silencing" of speech would just be portentous ways of talking about and cashing out the psychological harm caused by insults.

   Perhaps, however, there is something more to the claims of unequal opportunity and silencing of speech. At least sometimes, the claim is that the speech will cause others who hear it or hear of it to lower their opinions of the targets and become more dismissive of their ideas, their accomplishments, and their needs. The claims of unequal opportunity and silencing translate into the claim that an insult of the target, even if only an epithet, carries a propositional content for an audience - for example, "the target and those like her are unworthy of respect" - which propositional content might be accepted as true by the audience to the detriment of the target's status as a student, an employee, and a participant in public dialogue.

   This last claim regarding the harm of hate speech is insufficient to justify withholding first amendment protection and, indeed, standing alone, helps to make the case for first amendment protection. The fact that an opinion about others (1) is wrong and (2) might persuade others cannot in general be grounds for withholding first amendment protection without turning the first amendment on its head.(14) So I shall ignore this claim and focus on the claim that hate speech is directly harmful to its targets rather than indirectly harmful through its effects on others' attitudes and beliefs about the targets. That is, I shall deal with the alleged harms of emotional distress, offense, and subordination.

   My approach to this subject is organized as follows. In Part II, I focus on the various kinds of painful knowledge that hate speech conveys, both denotatively and connotatively, and the various ways such knowledge can be painful. My conclusion, however, is that hate speech conveys nothing that cannot be conveyed equally or more painfully by other speech, speech that clearly is and should be constitutionally protected. Insofar as painful knowledge is concerned, there is nothing distinctive about hate speech.

   In Part III, I turn my attention to the interplay between hate speech and social norms, norms that determine what gives offense and what counts as the performance of various types of speech acts, such as acts of subordination and disrespect. I conclude that such social norms should not limit freedom of speech, and that civility in public discourse, however desirable, should not be legislated.

   In Part IV, I take up some possible responses to my analysis, in particular, arguments for carving out an exception from first amendment protection either for epithets or for the ideas expressed by...