The Totalitarian Ideological Origins of Hate Speech Regulation

Author:John Bennett
Position:John T. Bennett, M.A., Social Sciences (MAPSS), University of Chicago (?07); J.D., Emory University School of Law (?12). The author is a Captain in the U.S. Army Judge Advocate General's (JAG) Corps, and has served in Iraq, Afghanistan, and Djibouti. The analysis and opinions contained herein are solely those of the author, and do not reflect...
Pages:23-123
SUMMARY

The current efforts created to regulate speech are reminiscent of the speech controls initially instituted within the Soviet and Maoist regimes. The efforts to regulate hate speech have failed to challenge the normative and empirical bases of speech regulation.

 
FREE EXCERPT
THE TOTALITARIAN IDEOLOGICAL ORIGINS OF HATE
SPEECH REGULATION
JOHN BENNETT*
I. INTRODUCTION
Obviously, political correctnessis a strategy of
intimidation in the struggle for intellectual and
educational power.1
- Arthur Schlesinger, Jr., historian and special assistant to John F.
Kennedy
For many members of the former Marxist left, the death of
Communism has been replaced equally fervidly with
advocacy of the new PC.2
- Ronald Radosh, historian and former Marxist
Despite the awful human toll of totalitarian communist regimes,3many
contemporary liberals advocate the very speech controls characteristic of
those regimes. As this Article will demonstrate, current efforts to regulate
speech are reminiscent of the speech controls instituted within Soviet and
Maoist regimes. This Article traces the ideological origins of hate speech
regulation from totalitarian communist rule directly through to current
speech regulation proposals.
Copyright © 2018, John Bennett.
*John T. Bennett, M.A., Social Sciences (MAPSS), University of Chicago (‘07); J.D.,
Emory University School of Law (‘12). The author is a Captain in the U.S. Army Judge
Advocate General’s (JAG) Corps, and has served in Iraq, Afghanistan, and Djibouti. The
analysis and opinions contained herein are solely those of the author, and do not reflect the
views of the United States government, the Department of Defense, the United States Army,
or any other official body in connection with the author.
1Arthur Schlesinger, Jr., Multiculturalism v. The Bill of Rights,in OUR COUNTRY,OUR
CULTURE:THE POLITICS OF POLITICAL CORRECTNESS 218, 225 (Edith Kurzweil & William
Phillips eds., 1994).
2Ronald Radosh, McCarthyism of the Left,in OUR COUNTRY,OUR CULTURE,supra note
1, at 202, 205.
3The leading communist regimes (Russia and China) each murdered more people than
the Nazi regime, in both absolute and per capita numbers. See infra Part III.
24 CAPITAL UNIVERSITY LAW REVIEW [46:23
Part II briefly surveys the American tradition of free speech, finding no
constitutional or cultural lineage linking the American tradition of free
speech to hate speech regulation proposals. American legal precedents
repeatedly contrast free speech with the rigid, censorious totalitarian
worldview endemic to communism.4Our tradition of free speech is, in
fact, fundamentally hostile towards government efforts to restrict speech or
prescribe doctrine.5
Part III provides a summary of the speech regulations and restrictions
on free inquiry characteristic of totalitarian communist regimes. The most
apt historical parallels for hate speech regulation are found in the official
censorship and informal self-censorship integral to twentieth-century
communist regimes, particularly those of the Soviet Union and China.6
These regimes gave living form to the following insight from Justice
Holmes in his dissent in Abrams v. United States:“Persecution for the
expression of opinions seems to me perfectly logical. If you have no doubt
of your premises or your power and want a certain result with all your
heart, you naturally express your wishes in law, and sweep away all
opposition.7
Part IV explores the image of communism portrayed within the
ideological confines of academia. Due to leftist hegemony within
academia, the brutal history of communism is obscured, minimized, or
suppressed altogether.8After the fall of communism, intransigent Marxists
and defunct revolutionaries explicitly advocated that radicals enter major
institutions, particularly schools and universities, in what became known as
the “long march through the institutions.”9
Part V describes how, despite the fall of Communist regimes, certain
Marxist ideals and resentments persisted among many American
intellectuals. With those persisting Marxist ideals and resentments follow
the disturbing institutional responses characteristic of the underlying
idealsnamely, state censorship. As a result of the “long march through
the institutions,” Marxism has substantial influence within critical theory,
cultural studies, and critical race theory, which are prominent within the
4See infra Section II.B.
5See infra Section II.C.
6See infra Part III.
7Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
8See infra Section IV.A.
9See infra Section IV.B.
2018] TOTALITARIAN ORIGINS OF HATE SPEECH REGULATION 25
humanities, social sciences, and legal scholarship.10 The totalitarian
communist origins of hate speech regulation can be traced in an essentially
chronological order, as this Article sets out to do. Communism’s
ideological influence descended from the mid-twentieth-century
communist regimes, to the Marxist “critical theory” of the Frankfurt
School, to various modern offshoots of Marxist critical theory, through to
the rigidly institutionalized leftist doctrines in today’s academy, such as
critical race theory.11 One influential Marxist and American professor,
Herbert Marcuse, promulgated the notion of “repressive tolerance,” the
most vivid link connecting totalitarianism to modern hate speech
regulation.12 Without a rigorous critique of communism and its methods of
control, discourse about hate speech regulation lacks historical context, and
academic bias undermines empirical scrutiny of speech regulation.
Part VI critically reappraises the relationship of hate speech regulation
to totalitarian communist ideology. Political correctness is the crucial
conceptual sinew connecting hate speech regulation to the historical
experience of communist rule. Five factors were central to the practical
application of communist doctrine: intense group grievances, a sense of
victimhood, the desire to impose doctrine, the desire to persecute opposing
viewpoints, and strong faith in the state to wisely limit free expression.13
Those five factors foster the institutional mechanism of speech regulation,
linking twentieth-century communism to contemporary hate speech
regulation.
Part VI then reconsiders hate speech regulation as a doctrinal
enforcement mechanism. Similarly, this Article scrutinizes the policing of
“microaggressions” as an effort to demonize ideological opposition and
entrench hegemony through the culture of victimhood. Sensitivity training
is reinterpreted here as doctrinal re-education. Ultimately, the social
sciences are equipped to provide a cogent critique of contemporary hate
speech regulation, but these disciplines have utterly failed to challenge the
normative and empirical bases of speech regulation. This Article is
intended to begin to fill that void in the extant work.
At the outset, it should be noted that this Article does not suggest that
proponents of hate speech regulation plan to reproduce Soviet or Maoist
10 See infra Section V.A.
11 See infra Part V.
12 Herbert Marcuse, Repressive Tolerance,in ACRITIQUE OF PURE TOLERANCE 81, 111
(Beacon Press ed., 1970).
13 See infra Part VI.

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