When he began his law career in New Zealand, Jeremy Waldron quickly attained the rank of barrister.
With the status of courtroom rhetorician sometimes comes the challenge of arguing the impossible—"Ladies and gentlemen of the jury, my client’s position is hopeless, isn’t it?”
And from there prevailing.
On the phone from the University of Oxford, where he is a professor of social and political theory, Waldron laughs at the suggestion that his new book from Harvard University Press is such an undertaking. But it does argue a position that he acknowledges most American jurists consider dead in the dock.
Waldron, who is also a professor of law at New York University, contends that laws against hate speech deserve further consideration, even if he doubts they “will ever pass constitutional muster in America.”
He contends that The Harm in Hate Speech, as his title has it, begins with American legal tradition flatly declining to prohibit it. As a result, he argues, “hate speech” or “group libel” is allowed to damage individuals’ social standing—the “fundamentals of basic reputation"—which American democracy ostensibly guarantees.
Deeply ingrained in American jurisprudence is a belief that offensive speech should be countered with other speech, not the force of law. Learn to live with it. So the American Civil Liberties Union insists, and for once it finds broad public agreement.
But “group libel,” Waldron contends, “is both a calculated affront to the dignity of vulnerable members of society and a calculated assault on the public good of inclusiveness.” It maligns and denounces groups for their race, skin color, sexual orientation, or national, ethnic, or religious character. It may come in the form of racist graffiti, cross burnings, Islamophobic blogs, and pro-Hitler, swastika-emblazoned Nazis parading in Skokie, Ill.
Waldron makes the case that, more than when uttered verbally, such forms of publication or public display intrude deeply and enduringly into public life. By assaulting the “reputation, status, standing” of individual members of targeted groups, they disrupt “well-ordered society.”
That, he writes, is why many advanced democracies have adopted laws against hate speech, as required under such agreements as the United Nations’ International Covenant on Civil and Political Rights, adopted in 1966.
What explains American exceptionalism on the issue? The claim that anti-hate-speech codes impinge on free speech is all very well for “the white liberals who find the racist invective distasteful” and yet worthy of defending as an American right, he suggests. But what of those who are the targets? “Can their lives be led, can their children be brought up, can their hopes be maintained and their worst fears dispelled, in a social environment polluted by these materials?”
Waldron considers American objections to such measures often “knee-jerk, impulsive, or thoughtless.” Better, he suggests, would be to engage “complex questions on which intelligent people differ.”
The complexities are many, he writes. In addition to differentiating between published or otherwise publicly staged statements and merely uttered hate speech, he distinguishes between group libel and mere offense. He does not believe that laws should seek to spare citizens from the latter. So, for example, codes should not be enacted that criminalize criticism of holy books or the reputation of prophets, as distinct from the religious groups themselves: “The civic dignity of the members of a group stands separately from the status of their beliefs.”
Nor would he like to see laws that sought “to punish people’s attitudes or control their thoughts.” He notes, however, that many campuses and workplaces do adopt speech codes that may punish attitudes and shape thought while seeking to provide safety and civility for students or employees. Such codes, he says in an interview, “remind us that the context of state legislation is not the only context where we have to address these issues.”
Rather than suppressing hate speech itself, he advocates a practice that is common elsewhere of punishing those who encourage more hate speech among their supporters or who incite violence. He argues that the fears for safety experienced by individuals within groups that are targets of hate speech are reasonable and real. After all, he writes, many African-Americans still have historical memory of a system of vicious chattel slavery, “upheld by the very Constitution that purported then and still purports to guarantee individual rights.”
Waldron also explains that laws that curb speech in the interests of public order are not as alien to American history and jurisprudence as is commonly believed today. The Sedition Act of 1798, which expired in 1801 and was replaced in 1816 by a new federal law, sought to prevent a toppling of the young, fragile republic. It was not until 1919, by which time enough legislators thought citizens needed protection from a powerful state, rather than vice versa, that jurists interpreted the First Amendment as a guarantee of what Supreme Court Justice Oliver Wendell Holmes called “the free trade of ideas.”
But Waldron asks: Should we trade freely on minority groups’ dignity? “Why should we think that there needs to be protection only against the constraining laws and never against the racist expression?”
Unpopular though Waldron’s argument is, a measure of its seriousness is the respectful, albeit dissenting, consideration it receives by John Paul Stevens, a former associate justice of the Supreme Court, in his review of Waldron’s work in the New York Review of Books.
Waldron is, after all, no average legal scholar. Last year the American Philosophical Society awarded him its prestigious Henry M. Phillips Prize for lifetime achievement in jurisprudence. He is a member of both the British Academy and the American Academy of Arts and Sciences.
He manages to remain a close friend of his chief opponent on the issue of hate-speech codes—and dissertation adviser at Oxford some 30 years ago—the prominent theorist Ronald Dworkin.
Dworkin’s critique is subtle. He argues, for example, that hate-speech laws paradoxically undermine anti-discrimination laws. That is fine by Waldron. He considers it an accomplishment merely to break through American resistance to debating the issue. And in fact, he says, the issue does have legs. For example, two recent books address the debate. Just out from Stanford University Press is Henry Ford’s War on Jews and the Legal Battle Against Hate Speech, by Victoria Saker Woeste, a research professor at the American Bar Foundation (and, long ago, Waldron’s first teaching assistant in the United States). Out last year from the Harvard press was a collection of essays, The Offensive Internet: Speech, Privacy, and Reputation, edited by Saul Levmore and Martha C. Nussbaum.
Says Waldron: “It’s an issue that never entirely goes away, partly because there are a lot of people on both sides of the debate in the U.S., not just in Europe.”
And, if he were judge, juror, or legislator, rather than barrister, how would he rule on hate-speech codes? Pressed, he would argue that city or state legislatures should not be barred from making such laws. “It’s important to realize,” he says, “that one of the things we do in America is we disqualify legislators from making this judgment.”
But he stresses that advocating for such laws now is not his purpose in The Harm in Hate Speech. Rather, “I’m a great believer that there’s important work to be done before you get to the bottom line, just in people understanding each other’s positions. And that’s what I’m realistically trying to do with my book.”
