Two pieces bring the question of hate speech back before us. In the latest NY Review of Books and under the title Should Hate Speech be Outlawed?, Justice John Paul Stevens reviews Jeremy Waldrons The Harm in Hate Speech. While Waldron admits that it is very unlikely that laws banning hate speech will ever pass constitutional muster in America, he does believe that we have overprotected speech that not only causes significant harm to the dignity of minority groups but also, more importantly, diminishes the public good of inclusiveness that is an essential attribute of our society.Waldrons general description of the kind of speech under discussion is expansive:
The use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against it.
The Justice faults him for not addressing the differences in the statutes in several countries where certain kinds of hate speech are outlawed. At the end of the essay, Stevens confesses that he has not been persuaded that it would be wise to outlaw the entire category of hate speech that Waldron describes, and it would appear that it will remain true that Americans are freer to think what we will and say what we think than any other people.The only point which gives me pause is when the Justice seems to imply that the exchanges once common between rival ethnic groups might classify as hate speech, and cites (quite unnecessarily) an ethnic joke against Poles. I myself found the Festrunk Brothers of Steve Martin and Dan Aykroyd offensive, even demeaning of my ethnic background, but I would never characterize it as hate speech.Peter Berger, the brilliant social theorist who brought European perspectives of the Geisteswissenschaften to sociology in the U.S. (a counter-balance to the positivism of the How many freckle-faced left-handed Catholics go to Mass every week tradition), has a weekly blog here. In one of his essays he refers to a case before a district court in Texas in which the judge ruled that an imprecatory prayer uttered against a man who opposes religious activities in the U.S. military could not be considered to have caused harm and fell within the boundaries of freedom of speech. Berger comments:
There are a few things to be noted about this episode. As far as I can tell, Judge Hoffmans ruling follows an established tradition in American law: Speech, no matter how offensive or hurtful, is protected under the first amendmentunless it directly threatens or harms the targeted individuals. A classical case for this legal doctrine was the 1977 incident in Skokie, Illinois, where the United States Supreme Court ruled that a group that called itself the National Socialist Party of America had the right to parade with full Nazi regalia through the streets of this largely Jewish suburb of Chicagodespite the fact that one in six inhabitants was a Holocaust survivor. The same doctrine was invoked when the Supreme Court ruled that a Protestant fundamentalist group had the right to demonstrate at military funerals with the message that God was punishing America for its sinsdespite the fact that this action inflicted great hurt to the grieving families. I wonder whether this doctrine will come unglued, as the new concept of hate speech makes its way through the courts: Could not an atheist claim that a ceremonial curse constitutes hate speech? There is also the delicious irony in the fact that, if Weinstein had stipulated that a curse in the name of God could have real effects in the empirical world, he might not have won in a Texas court in 2012, but he would surely have won in a Salem, Massachusetts court in 1692though thereby implicitly denying his atheist worldview. (Of course both defendant and plaintiff might have been hanged eventually, the former for witchcraft, the latter for atheism.) Needless to say, he would also have won for many centuries in any court in so-called Christendom.