The Harm in Hate Speech.

• Author: Allan, James
• Position: Book review

THE HARM IN HATE SPEECH. By Jeremy Waldron. (1) Harvard University Press. 2012. Pp. vii + 292. $26.95 (cloth).

Jeremy Waldron is erudite, well-published and well-known. He currently divides his time between being a professor of law at the New York University School of Law in the United States and being a Chichele Professor of Social and Political Theory at All Souls College, Oxford University in the United Kingdom, though the latter of these posts is comparatively recent. And of course prior to both of these Waldron held full-time positions at Columbia and Berkeley law schools and outside the law school world at Princeton University and Edinburgh University.

I mentioned above that Professor Waldron is well-published but putting it that way rather trivializes just how prolific and wide-ranging his writings have been. Waldron, a legal philosopher and philosopher more generally, has written on the idea of private property in relation to claims about fundamental rights; (3) he has written on the Rule of Law; (4) he has attempted to make a case for greater receptivity by United States courts to consider overseas case law; (5) he has delved into Kant's legal thinking; (6) he has had an on-going interest in thinking about and analyzing rights; (7) and he has written on torture, (8) to give just a sampling of the scope of Waldron's interests.

That said, it seems to me that Jeremy Waldron is best known (9) for his work on strong judicial review of the American sort that empowers unelected top judges to gainsay the elected legislature, indeed to strike down and invalidate the statutes produced by these law-makers. Waldron is against giving this power to the judiciary (10) though his opposition to this counter-majoritarian practice appears latterly to have become more hedged about with qualifications, conditional premises and exceptions, (11) or so it appears to me. (12)

Whether you agree with that "this is what Waldron is best known for" claim of mine, or not, remember it because it will make a cameo reappearance below. Indeed, it will form one ancillary plank of my argument that Waldron's underlying thesis in his most recent book is ultimately unpersuasive and unsatisfying.

I refer to Jeremy Waldron's The Harm in Hate Speech, a consideration of which will take up the rest of this review. In Part A I will briefly introduce the book, outline its contents and sketch Waldron's thesis and arguments. Then in Part B I will say why I think that Waldron fails in this book, by which I mean that he fails in the end to offer up a convincing, persuasive and satisfying argument for his ultimate position. Of course Waldron certainly does not fail in being interesting, erudite, informative and, at times, (my favorite) provocative.

PART A--INTRODUCING THE BOOK AND ITS CONTENTS

The Harm in Hate Speech was published in 2012. As Waldron himself makes clear in chapter one, the book's genesis lay in a review Waldron wrote for the New York Review of Books of a book by Anthony Lewis on the topic of free speech. (13) It was the response to that review, at least in part, that Waldron tells us in his introductory first chapter that prompted him to flesh out that Lewis review into this book, The Harm in Hate Speech.

So in chapter two Waldron gives us an expanded version of that Lewis review of his. Then in chapters three and four we get Waldron's positive case, the most favorable account or defense of hate speech laws he can give. Chapter five deals largely with needed distinctions, complexities and qualifications, including the distinction crucial to his argument--the one distinguishing between offending people and attacking their dignity. Waldron, as you might suspect, does not think laws that regulate hate speech ought to extend to protecting against felt offense whereas they should, thinks Waldron, cover dignity-degrading or dignity-enervating hateful words. And of course Waldron argues that he can uphold this distinction; that the latter (dignity protection) need not, even in the hurly burly of real-life regulation, regularly and consistently end up being used merely to prevent or foreclose speech that causes offense.

Chapters six and seven are defensive in nature. They can be thought of as pre-emptive replies or counter-arguments to the anti-hate speech laws positions firstly of C. Edwin Baker (chapter six) and secondly of Ronald Dworkin (chapter seven). The last chapter of the book, chapter eight, then turns to history. Here Waldron attempts to draw a link between the modern debate over hate speech laws and the Enlightenment concern with religious toleration, Waldron arguing that the two are, or at least can be understood to be, connected.

If that is a bare outline of the structure of the book, let me now turn to the gist of Waldron's argument in The Harm in Hate Speech.

First off, I need to make it abundantly clear that Waldron does not offer up an argument about American First Amendment jurisprudence: "Still less is it my aim to make a case for the constitutional acceptability of [hate speech] laws in the United States" (p.11, but see also p. 103, inter alia), he says. Of course there are occasional asides about how the existing U.S. case law may, just, leave scope for some sort of constitutionally valid hate speech laws (see p.28 ff, inter alia). But more than once Waldron concedes that "... it is unlikely that [anti-hate speech] legislation ... will ever pass constitutional muster in America" (p.11).

So it is not that sort of parsing-of-precedents book, nor even a "here's what a return to first principles constitutional interpretation of the sort I advocate could achieve" one. No, Waldron eschews all that. This book, instead, aims to "come to terms with the best that can be said for hate speech regulations" (p.11). It aims to make a plausible or maybe even persuasive case in favor of hate speech laws. This will involve offering the most defensible characterization of these laws that Waldron can.

And at core what Waldron does is to offer what amounts to a consequentialist argument to that effect. When you throw everything into the balance, the real harm that vilifying and humiliating vulnerable groups does will, on occasion, outweigh the costs that come from using the law to silence people, even in some instances when the hateful words are not inciting or provoking violence. That is the gist of the Waldronian case.

Along the way, of course, Waldron needs to tell us what for him falls under the aegis of "hate speech." And in different ways and in different places in the book he does. It is publications (because Waldron is far more concerned with the written word that is lasting rather than the spoken word that is ephemeral) "which express profound disrespect, hatred, and vilification for members of minority groups" (p. 27); it is a species of "group defamation" or "group libel" claim (see pp. 39-41, inter alia); it is "assaults upon the dignity of the persons affected" (p. 59); "[i]t is a matter of status--one's status as a member of society in good standing" (p. 60); and so the point is "that hate speech laws really are enacted for the benefit of vulnerable racial, ethnic, and religious minorities, to uphold their reputation and their dignity" (p. 203).

As you can see from those few selected passages, the concept of "dignity" plays a large role in Waldron's argument. Hence Waldron spends no small amount of time explaining that "dignity is a complex idea" (p. 59), but at its core it refers to people's "basic social standing, the basis of their recognition as social equals and as bearers of human rights and constitutional entitlements" (p. 59).

The real, tangible harm of hate speech, says Waldron, is its "radical denigration of status and [its] undermining of [the] assurance [of decent treatment and respect]" (p. 108). And so the legislating against hate speech can also be understood in terms of "public order" (p. 53) benefits or the goal of "a well-ordered society" (pp. 77-78). And in making the best case he can for some regulation or outlawing of hate speech Waldron has various other quivers in his bow. He makes an analogy to arguments seeking laws against pornography (pp. 89-92, inter alia); he puts weight on practices in other democratic countries (pp. 13, 40, 57-58, 149, inter alia); as mentioned already, he distinguishes undermining dignity from causing offense (much of chapter five); and he takes on, preemptively, two well-known thinkers who dislike speech regulation (chapters six and seven).

As I hope I have made clear already, The Harm in Hate Speech offers a nuanced and erudite case for us to think again about the desirability of hate speech laws. That said, Waldron's argument ultimately fails, in my opinion; it is unpersuasive and unconvincing, on the grounds I now set out.

PART B--WHY WALDRON'S ARGUMENT FAILS

As Waldron starts his book with a sort of confessional account of why he came to write this book, let me also lay my cards on the table. You see, unlike many readers, I am broadly in the Waldron camp in disliking bills of rights and strong judicial review, on democratic grounds. TM So the critique that follows of Waldron's "best case for hate speech laws" will take place on Waldron's home turf, as it were. It will not be a "the judges should have done X, Y or Z" type critique that points to some supposed lack of understanding of the First Amendment case law. Instead, I want to point out weaknesses in the Waldronian argument taken on its own terms. And I turn to do that now, under the following five headings.

1) WHAT REALLY IS THE UNDERLYING NATURE OF WALDRON'S ARGUMENT?

I said above that Waldron offers a consequentialist argument that tries to make the best case it can in favor of hate speech laws. And I was careful to put it in those terms because here and there Waldron says such things as "my aim is not directly to advocate hate speech laws in the United States" (p. 103, and see p. 11). On the other...