Stanley Fish reviews a book on hate speech

Prof. Fish does one of his pretences at even-handedness below.  He is generally an opponent of free speech so that shows below in what he does NOT say.  He makes clear that the case for regulating hate speech lies in the assumption that it is crippling to minority groups who are subjected to it.  That assumption is of course the most arrant nonsense.  Two groups that have endured masses of hate speech over the years are Jews and East Asians (Chinese and Japanese).  Just how crippled and crushed are they?  They are in fact disproportionately affluent and in prominent positions in most countries where they live as minorities.  It would be more consistent with the evidence to conclude that criticism is strengthening

No topic is more frequently debated with less resolution than hate speech. This is made abundantly clear in a new collection of essays written by some of the leading contributors to the debate. The volume is called “The Content and Context of Hate Speech: Rethinking Regulation and Responses,” and it is edited by Michael Herz and Peter Molnar.

What you learn in the course of reading this book is that there is no generally accepted account of (1) what hate speech is, (2) what it does (what its effects are) and (3) what, if anything, should be done about it. To be sure, everyone agrees that it is hate speech when words are used to directly incite violence against a specific person or group of persons. But as Arthur Jacobson and Bernhard Schlink point out in their contribution to the volume, on such occasions the words are instrumental “to an incipient assault,” and it is the assault, not the words, that the state criminalizes. (It is, say the courts, “speech brigaded with action.”) There need be no debate about what to do in the face of that kind of speech because it is already being done by extant laws.

The rest are all hard cases. Is it hate speech when, in a paper with scholarly trappings, someone says that the Holocaust never happened and was invented by Jews in an effort to induce guilt and gain money? Is it hate speech when a pamphlet explains how Muslim Americans plan to impose Shariah law and subvert the traditions of this country? Some who consume such statements will certainly feel hatred for Jews and Muslims, and no doubt those who make such statements intended that result. But no call to violence is issued and one might say — in the United States it will always be said — that while it is hate speech disguised, the disguise is good enough to remove it as a candidate for regulation.

Then there is what we might call genteel hate speech — casually produced anti-Semitic and racial slurs in conversation and in countless British novels. It is certainly hateful speech, but it reflects less the intention of the speaker or writer than the cultural background of the society he lives in. If it is hate speech, it is so distant from any specific design to wound that a legal remedy against it seems quixotic and unenforceable. And yet, demeaning speech that flies under the legal radar because it is an extension of what people regularly say and even more regularly think may in the end be more harmful than the direct, frontal insult.

And what about hate speech that is never uttered, but is implied by the structure of institutions? When the law in many states reduced black Americans to the status of property, wasn’t it being said, in the most forceful way imaginable, that blacks were more like animals than humans? When women were denied the vote for so many decades, wasn’t it being said that they were perpetual children and unworthy of an independent existence? And, to reference an example invoked by Peter Molnar in his essay, isn’t the statue of Teddy Roosevelt in front of the American Museum of National History that shows him on a horse flanked by the figures of a Native American and an African-American a form of hate speech declaring the natural subservience of the “red” man and the black man?

Let’s suppose that we could sort through these versions of hate speech (and there are many more) and come up with a baseline definition of what it is; we would still have the problem of specifying its effects. You can’t cogently debate whether to regulate something unless you have first identified the harms it produces. Bhikhu Parekh, political philosopher and a member of the British House of Lords, is quite confident in his account of those harms. Hate speech, he says, “lowers the tone of public debate, coarsens the community’s moral sensibility, and weakens the culture of mutual respect that lies at the heart of a good society.” In addition, hate speech “violates the dignity of the members of the target group” who lead “ghettoized and isolated lives with a knock-down effect on their children’s education and career choices.”

Not necessarily, says Nadine Strossen, a professor of law and a past president of the A.C.L.U. We are not, she insists, “automatically diminished just because some bigot says something negative about us.” Indeed, we are better off knowing about the hateful things being said, first because it provides “valuable information,” second because it gives the targeted individuals “an opportunity to respond” and third because it “highlights … issues that can be addressed in other ways, for example through education.”

Behind Strossen’s and Parekh’s assertions are two very different views of human beings. For Strossen, the hate speech recipient is (or can and should be) a resolute individual standing up for herself in the face of verbal assault and emerging stronger from the encounter. For Parekh, the hate speech recipient is the vulnerable victim of forces that rob her of dignity and deprive her of the resources necessary for human flourishing, resources that therefore must be supplied by the state in the form of hate speech laws. Strossen’s view follows from a strongly libertarian reading of the First Amendment and is pretty much official doctrine in the United States. Parekh’s view reflects the more communitarian concerns of other Western democracies that balance free expression rights against the right of the society to order itself in decent and humane ways.

Michel Rosenfeld draws the relevant contrast with respect to the United States and Canada: “Under the American view, there seems to be a greater likelihood of harm from suppression of hate speech … than from its toleration.” But from a Canadian perspective, “dissemination of hate propaganda seems more dangerous than its suppression as it is seen as likely to produce enduring injuries to self-worth and to undermine social cohesion in the long run.”

Rosenfeld observes that the two countries “differ in their practical assessments of the consequences of tolerating hate speech.” Not quite; what the two countries differ in is their respective assumptions concerning what must be protected: on the one hand, a rights-based individualism that can take care of itself and would be diminished by nanny-state intervention, on the other, a psychological and societal fragility that must be shored up by law. In one vision, hate speech is an opportunity; in the other it is a virus. Given such two different accounts of the effects of hate speech, it is not surprising that there would be two different accounts of what to do about it, or what not to do about it, and no hope of reconciling them.

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