One of the great maxims in defense of the 1st Amendment is the insistence by Justice Oliver Wendell Holmes that we must defend 'even the thought we hate'. But law professor Jeremy Waldron asks, when it comes to the most egregious hate speech, why? He explains to Brooke that words can and do hurt us and that there should be limitations on the most hateful expression.
BROOKE GLADSTONE: Main Kampf, the cornerstone argument for the Third Reich, is a cut and dried example of hate speech, but no matter how vile, how irredeemable, it is published here in the United States. Jeremy Waldron, author of The Harm in Hate Speech, might ask why. And you might answer, “Because of the 1st Amendment of the Constitution.”
But Waldron believes that the 1st Amendment doesn’t, and shouldn’t, protect the most extreme forms of hate speech, and he asks you to consider an anecdote. A father and his two children are walking in their American town shortly after September 11th. The family is Muslim, and they encounter some particularly virulent and public invective aimed directly at them.
JEREMY WALDRON: And he looks at them and he tries to shield them from it. He knows what it means. It means that they’re not going to be welcome or that somebody is trying to persuade others to not make them welcome. We have to understand this matter intelligently, and that does mean looking at it just not through my eyes as a white liberal, who say, well, I can take this, I can handle this, but through the eyes of people who have to live their lives, do their business, raise their children in an atmosphere that is poisoned by this sort of abuse.
BROOKE GLADSTONE: Are you pitting one of America’s founding principles against the admittedly horrible predicament this father finds himself in?
JEREMY WALDRON: Indeed. I am asking us at least to question that founding principle or to think about its limits.
BROOKE GLADSTONE: But this is America, Jeremy. Our 1st Amendment forces us to be free speech absolutists, doesn’t it?
JEREMY WALDRON: I don’t believe so. Certainly if it forces us, it’s a force that we’ve been able to resist quite well in other areas. So we still have laws of defamation, we still have laws of obscenity, we still have laws of child pornography. We still have some laws of sedition, and we still have laws regulating fighting words. So in all sorts of ways, we’re not absolutists.
BROOKE GLADSTONE: Anthony Lewis, the longtime legal scholar, wrote that hypersensitivity to hate speech has resulted in the absurd and stultifying so-called political correctness that prevailed on college campuses in the nineties. He said there even a sense of humor was endangered. What do you make of the slippery slope argument?
JEREMY WALDRON: I don’t think it was a bad idea to have rather more civil and respectful discourse on college campuses. And most big employers in the United States have speech codes because you can’t run a business with half the workforce insulting the other half. So this is something that we know how to deal with in certain settings.
There is a slippery slope problem. It’s not the one that Anthony talks about. It’s the one about suppressing genuine dissent and reducing the plurality of voices that are heard in the community. But well drafted legislation in every other advanced democracy has confronted the slippery slope problem and developed strategies for dealing with it.
BROOKE GLADSTONE: You teach both at New York University and at Oxford. How does Great Britain draw that line?
JEREMY WALDRON: In about three different ways. One is in the careful wording of the statute, so you might have a provision that says, a person who uses threatening, abusive, or insulting words or behavior or displays any written material which is threatening, abusive or insulting, is guilty of an offense if here intends, thereby, to stir up racial hatred. Prosecutions need the support of the director of public prosecutions, and there is some control or filter to try to bend over backwards to catch only the most egregious cases.
Most such pieces of legislation include a sense of various safe havens, where people can say what they like in their homes or in private conversations. The difficulty we want to address is a situation where somebody is bellowing out in public invective, abuse and threatening language that tends to make life massively difficult for the families that we imagined in that example a few moments ago.
BROOKE GLADSTONE: So if you were King for a day, what would your ideal hate speech regulation look like in the United States?
JEREMY WALDRON: In the United States, we have a tendency to panic. We say, “Well, how on early would we draft these laws, how would we stop the slippery slope,” as though we would have to reinvent the wheel.
In the 1950s there was a case from Illinois that went before the Supreme Court, Beauharnais against Illinois, and it dealt with a particularly vicious piece of racist propaganda that was being purveyed on the streets of Chicago. And the Supreme Court had no difficulty upholding that as effectively a group libel statute, making it an offense to seriously defame a group in the community by calling them criminals or by calling them violent. And that decision in Beauharnais against Illinois has never been overturned. What you find in the United States is opinion is divided on this.
BROOKE GLADSTONE: Obviously, the one thing you can’t legislate away is hateful thoughts.
JEREMY WALDRON: Yes.
BROOKE GLADSTONE: How do you think restricting the words people can use in a society addresses the underlying problem of hate?
JEREMY WALDRON: It doesn’t. I mean, it makes it harder for the haters, for the racists, to call out and contact each other because effectively what one of these pieces of signage does, it says two things. To one audience it says, you are not welcome here. And to another audience, it says, you are not alone. There are lots of people who have this hatred, as well as you do. So be emboldened, be encouraged.
But I’m under no illusion that this diminishes hate. Remember, this would be one of dozens of strategies that would be used to deal with problems of inequality and antipathy between different communities.
BROOKE GLADSTONE: Because of your less than absolutist views [LAUGHS] on the 1st Amendment –
JEREMY WALDRON: Yes-
BROOKE GLADSTONE: -you’ve amassed an impressive heap of hate mail yourself. Would you restrict it?
JEREMY WALDRON: I wouldn’t restrict it if it were just a matter of mail being sent to me. I think that’s one of these safe havens that’s not, by no means, pleasant. It’s actually very unpleasant. But that’s between you and the person who sent it. What really worries me is people thinking that it’s appropriate to hate those who simply raise this issue.
BROOKE GLADSTONE: Jeremy, thank you very much.
JEREMY WALDRON: It’s been wonderful to talk to you. Thank you.
BROOKE GLADSTONE: Jeremy Waldron is a professor at New York University and at Oxford. His new book is called The Harm in Hate Speech.