Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements.

• Author: Wendel, W. Bradley
• Position: Book Review

DESTRUCTIVE MESSAGES: HOW HATE SPEECH PAVES THE WAY FOR HARMFUL SOCIAL MOVEMENTS. By Alexander Tsesis. New York: New York University Press. 2002. Pp. x, 246. $40.

INTRODUCTION

In the late spring and early summer of 1994, hundreds of thousands of people in Rwanda--an estimated ten percent of the population--were brutally murdered by their fellow citizens, generally for the "crime" of belonging to the socially and economically dominant, but numerically minority Tutsi ethnic group. (1) The slaughter followed a systematic propaganda campaign coordinated by the Rwandan government, dominated by members of the Hutu ethnic group, who had long harbored grievances against Tutsis. The campaign demonized Tutsis as "devils," stirred up fear among the largely rural and poor Hutu population by propagating false information about a Tutsi campaign to exterminate Hutus, and stated that killing Tutsis was a civic duty for Hutus. (2) Using the pretext of a plane crash that killed the Rwandan president (which was falsely blamed on Tutsi insurgents), Hutu extremists organized a countrywide effort by ordinary Hutus to kill Tutsis, savagely, methodically, and in a chillingly routine manner --peasant "workers" reported for duty in the morning, spent the day hacking Tutsis to death with machetes, and then retired for the evening to eat, drink, and sleep. (3) When the killing finally ended in July, an estimated 800,000 were dead, legions of refugees had swarmed into neighboring countries, and Rwanda was in shambles.

The Rwanda massacre took its place alongside other massive, systematic, coordinated attempts to eliminate entire classes of people, in a century already reeling from horrors such as the Armenian genocide, the Holocaust, the Cambodian killing fields, and the murders ordered by Stalin. (4) The slaughter at Srebrenica would happen in the next year. (5) To many observers, these events revealed the fragility of the very preconditions of civilization--trust, empathy, reason, and understanding. Their occurrence inspires a kind of collective helpless silence, recalling Theodor Adorno's admonition that, after Auschwitz, to write a poem is barbaric. (6) The complicity of numerous "ordinary" people in the bureaucratically organized killings continues to demand our reflection on the capacity for evil that seems innate in human nature. (7) Of course, earlier moral catastrophes such as slavery and the slave trade and smaller-scale but nevertheless evil acts such as rapes and lynchings deserve our critical reflection as well. Despite the modern resources of education, culture, and the rule of law, civilization appears to be a thin veneer for a pervasive human capacity for brutality and an endless appetite to cause suffering.

An alternative response to the failure of social institutions to restrain human cruelty is to persist in the optimistic belief that we can still do more. Optimism need not be the naive Panglossian faith that this world is already in its best possible state. (8) Rather, it can consist of a conviction that improvements in education, culture, or the law can do a better job at keeping our capacity for violence in check. Alexander Tsesis (9) is an optimist in the latter sense. He holds fast to ideals that demand that the world be different--ideals such as equality, human dignity, peace, and toleration. In his view, decent society must refuse to permit certain kinds of statements to be uttered, namely those that express "hatred toward groups because of their racial, historic, cultural, or linguistic characteristics" (p. 81). Tsesis argues that violence against ethnic minorities and other outsider groups never occurs in isolation, but is legitimated and made more likely by a background of social beliefs, customs, imagery, metaphors, and stereotypes that degrade and dehumanize the outsiders. (10) These beliefs, in turn, are a product of the "emotive response elicited by the repeated expression of disrespectful images about the ethical, political, sexual, religious, or familial qualities of targeted groups" (p. 82). It is an essential function of hate speech to lay the groundwork for violence against disfavored groups by shaping the unconscious web of beliefs of citizens--who will be willing to turn against their neighbors, or at least to turn a blind eye to the resulting atrocities. For this reason, Tsesis proposes criminalizing at least that subset of hate speech that has a "realistic probability of inciting discrimination or violence" (p. 199), even if the pernicious effects of the speech take a long time to materialize. "The longer destructive messages about minorities are given free rein, the more likely it becomes that the hated group will be considered unworthy of essential human rights" (p. 137). A speaker whose words are not immediately acted upon should not be immune from prosecution because, for all we know, his words may contribute to a culture of bigotry that eventually sets the stage for acts of violence.

His proposal is sufficiently radical that a reader might be tempted to dismiss it outright, as wildly impractical ivory-tower theorizing, at least in the U.S. legal system. Indeed, although Tsesis sometimes seems to underplay the resulting disruption to existing constitutional law, the acceptance of his criminal statute would require a great deal more than marginal doctrinal tinkering. In Part I, I briefly describe the chasm between modern First Amendment principles and a comprehensive regulatory approach to the long-term harm created by hate speech. Cases such as Brandenburg v. Ohio (11) and New York Times v. Sullivan (12) are generally interpreted as underwriting a broad protection for caustic criticism and advocacy that falls short of incitement to commit imminent violent acts. (13) Moreover, a reform like the one Tsesis favors has been tried in a related context, namely the attempt to suppress pornography in order to prevent violence against women. (14) Although he does not discuss this episode, the Seventh Circuit's invalidation of an Indianapolis antipornography statute, and its summary affirmance by the Supreme Court, have been understood as foreclosing the attempt to prevent violence by addressing its roots in the false beliefs that result from pervasive exposure to hateful messages. (15) But the natural response to this critique is that it gives undue weight to the status quo, and that Tsesis is making a normative argument that stands apart from existing doctrine and provides a perspective from which the law can be criticized (pp. 130, 138). Although he does not self-identify as a critical scholar, his book follows the critical methodology of unmasking the law's pretensions to neutrality and inevitability. (16) An adequate response to his argument must accordingly be normative, not merely the emphatic reassertion of legal rules.

The normative response I wish to consider in Part II centers on the moral notion of responsibility and the consequences of the ascription of blame to a significantly expanded set of actors. As an optimist, Tsesis believes legal institutions can be reformed to address the problems of stereotyping, discrimination, ethnocentricity, racial scapegoating, and intolerance. Because these pathologies have such complex etiologies, however, an adequate legal response must end up targeting a vast domain of expression, including children's books that play to stereotypes, (17) much of the Western canon of literature, (18) jokes, (19) and popular music, movies, and television shows. (20) Because hardly anyone can claim not to be involved at some level with the perpetuation of pervasive cultural stereotypes, Tsesis's proposal spreads a layer of blame that is a mile wide and an inch deep. In moral terms, this diffusion of responsibility risks turning into a process of collective exoneration for the genuine evils of racism. For, as Hannah Arendt has argued, "where all, or almost all, are guilty, nobody is." (21) In short, Tsesis is right that racism touches everyone, and that violence can spring from a climate of acceptance of racist beliefs, but he is not justified in concluding that legal sanctions ought to be applied on the basis of that complicity.

This criticism should not obscure the genuine accomplishment of Tsesis's book, which is to focus the hate speech debate on explicitly normative issues. Of course, the Court engages in policy-based decisionmaking all the time, but it refuses to acknowledge as much, which leads the justices into baroque doctrinal attempts to justify regulation of speech on the basis of anything but its substance--witness the secondary-effects doctrine, (22) the captive-audience rule, (23) and the permissibility of regulating the time, place, and manner of speech. (24) By demanding a normative argument for regulating, say, adult movie theaters but not Ku Klux Klan rallies, Tsesis is continuing the scholarly efforts of not only Stanley Fish, (25) but also a number of outsider scholars who have consistently challenged the moral basis for purportedly neutral legal principles. (26) If neutrality and the appeal to principled adjudication is just a mask for a particular ideological agenda, it is fair to demand a moral justification for that agenda.

In the end, though, Tsesis is vulnerable to the argument that the criminal law is too blunt an instrument to deal with the diffuse and unconscious racism that critical race-theory scholarship has uncovered so effectively. Consider this provocative excerpt from a speech by Richard Delgado:

[P]owerful white-dominated institutions ... benefit, and on a subconscious level they know they benefit, from a certain amount of low-grade racism in the environment. If an occasional bigot or redneck calls one of us a nigger or spic one night late as we're on our way home from the library, that is all to the good.... This kind of behavior keeps nonwhite people on edge, a little off balance.... It prevents us from digging in too...