Hate speech presents a dilemma for many people, even those generally committed to freedom of expression.
After all, speech that demeans others on the basis of race, sex, gender or other criteria can have deleterious impacts on its recipients and others. Equality and inclusiveness matter in a society at least theoretically committed to justice.
However, regulating hate speech presents great problems.
Free-speech expert Nadine Strossen examines these problems brilliantly in her new book Hate: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press, 2018). First, Strossen points out that there is no generally accepted definition of hate speech.
She acknowledges that not all hateful speech is entitled to protection by the First Amendment. For example, speech that falls into the narrow, unprotected categories of true threats, fighting words, or incitement to imminent lawless action, or targeted harassment are not protected speech.
However, there is much hateful expression that does not fall into these narrow categories – and that is one reason why Strossen’s book is so valuable.
She identifies “two fundamental First Amendment flaws” with hate speech legislation:
- They often lead to viewpoint discrimination, and
- They stifle freedom of thought.
Such laws “license government to make discretionary, subjective judgments targeting an expansive range of speech.”
She also shows that history establishes that hate speech laws often lead to the government suppressing and silencing unpopular speakers, disempowered groups, and dissenting ideas. She also warns that much hate speech legislation suffers from fundamental vagueness and overbreadth problems. “Over and over, different decision-makers in the same country disagree about whether particular expression does or does or does not fall afoul of the pertinent ‘hate speech’ laws,” she writes.
Strossen provides numerous examples of hate speech laws being used to silence minority groups – the groups that laws ideally were supposed to protect. She also shows how hate speech laws do not promote equality. The book is valuable because it provides not just examples from the United States but from all across the world.
What is the answer then? According to Strossen, there are a variety of “non-censorial methods” that can be used to curb the potential harm of hateful expression. She relies on the cardinal First Amendment counterspeech doctrine – expressed so eloquently by Justice Louis Brandeis in his concurring opinion in Whitney v. California (1927) as “more speech, not enforced silence.” She also points out that “[e]ducation is a vital form of counterspeech.”
People may reasonably disagree with some of her conclusions. But Strossen’s important work contributes mightily to the hate speech debate. Free-speech enthusiasts will find much to enjoy in this gem of a book.
David L. Hudson, Jr. is a First Amendment scholar and the author of Documents Decoded: Freedom of Speech (ABC-CLIO, 2017) and First Amendment: Freedom of Speech (Thomson Reuters, 2012).