Strossen and Waldron on Hate Speech: Comparative Perspectives in a Post-Election America

By Katherine S. Barrett Wiik

One of the many engaging breakout sessions at the 2016 AJEI Summit was “Hate Speech in the Marketplace of Ideas: A First Amendment Dilemma,” featuring esteemed law professors Nadine Strossen and Jeremy Waldron. The panelists, and the audience, grappled with challenging questions of whether and how to regulate hate speech in a democratic society. Given the atypically divisive presidential election this year, and incendiary pre- and post-election discourse coming from numerous perspectives and targeted at various communities and constituencies, the panel’s focus on hate speech in a democracy was timely.

Professor Strossen, who now teaches at New York Law School, is well known for her high-profile leadership on civil liberties issues from her decades of service as the president of the American Civil Liberties Union. Professor Waldron, a native of New Zealand, was educated in New Zealand and England and taught at Oxford University for many years. His extensive academic writings in the areas of philosophy and law have focused on, among other topics, dignity, theories of rights, homelessness, and international law. Thus while Professor Strossen’s perspective on hate speech is grounded largely in her decades of civil liberties advocacy in the United States, which rejects the regulation of hate speech as violating the First Amendment, Professor Waldron’s perspective has been shaped by his education and experiences in other Western democracies. Waldron contributed an important comparative and international approach to the question of whether hate speech can or should be regulated by governments that may have been new to audience members less familiar with how other democracies tackle this issue.

There was substantial agreement between the panelists on why democracies should be concerned about the effects of hate speech, primarily the potential harm to individuals and communities as a result of being the targets of hate speech. The two also agreed on core values motivating the concern with hate speech. Professor Waldron began his remarks by explaining the three concerns that he sees as largely motivating the legislation banning fairly narrow and specific types of hate speech in some western democracies, which are the values of civility (particularly in professional spaces such as classrooms and courtrooms), the desire for social peace, and concerns for individual human dignity. Professor Strossen agreed with these three core values, which along with equality, she sees as values that live at the heart of civil liberties, and which are at least as important values in a healthy democracy as free speech.

The panelists (always speaking with much civility and dignity towards each other) strongly disagreed about whether democratic governments should ever seek to legislate hate speech. While Professor Strossen argued that democracies should refrain from legislating hate speech, Professor Waldron advocated for “very, very careful” legislation of hate speech. Professor Waldron advanced the perspective, which he recognized is a departure from existing American jurisprudence, that democratic governments should carefully consider prohibiting specific and limited categories of hate speech, such as that outlawed by the British Racial and Religious Hatred Act of 2006. That Act, for instance, states that “[a] person who uses threatening words or behavior, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.” “Religious hatred” is defined as hatred against a group of people defined by reference to religious belief or lack of religious belief. Professor Waldron explained that this legislation does nothing to limit attacks on beliefs, but rather to limit certain speech-based attacks on people. Professor Waldron likened such hateful speech to environmental harms and slow-acting toxin, which can accumulate and spread over time. Just as sane public administration is concerned with ensuring safe and healthy physical environmental standards, so should it be concerned with ensuring safe and healthy public discourse.

Professor Strossen acknowledged that Professor Waldron was successful in making the strongest case of the harm to dignity that can be caused by words. She agreed in the power of words, and that hate speech must be responded to in powerful ways, but not through regulation or censorship. She argued that many things that people frequently provide as examples of what should be unprotected, such as speech that intimidates or threatens violence, or hate speech in the private sector, is already unprotected. The government can also ban hate speech in its role as an employer, which it does through stringent restrictions in prisons, the military, and public schools. And even as the regulator in the public sphere, the government may legitimately punish hate speech in certain situations. For example, as Professor Strossen explained, the government may punish hate speech when there is a demonstrable connection to certain concrete harms such as when it constitutes a “true threat” or is an intentional incitement of imminent violence, where there is targeted harassment of an individual or group (often called bullying), where it creates a hostile work environment, or when it is an element in a hate crime.

More general regulation of hate speech, Professor Strossen warned, is inherently subjective and susceptible to abuse; hate speech may become any speech that is hated by the person or authority that is enforcing the rule. Regulation also drives hateful speech underground and hides it from view. She posited that: isn’t it healthier as a society to know that you have hatred in your citizenry (as has become increasingly obvious in the United States these days) than, for instance, in Germany, where neonazism is banned yet is thriving underground? Professor Waldron’s parting thoughts were that Americans should carefully consider whether, if we choose to retain our formula that only speech that presents a clear and present danger can be limited, might we find ourselves in a situation where that is a standard that is a hard one to walk back from.

A number of current events and data points suggest that debates about what to do about hate speech will likely intensify in our public discourse and courts in the coming years. Generational shifts are likely to put pressure on the American approach to hate speech as well. Professor Strossen reported that college students indicate support in high numbers for the suppression of hate speech. President-Elect Trump triumphed in the electoral college with the support of numerous constituencies including (but certainly not limited to) white supremacists, who many see as being in the business of hate speech. Yet at the same time, he is calling for the banning of flag burning and more relaxed defamation claims to wield against the media and his critics. First Amendment advocates may be in for a wild ride.

Originally published in Appellate Issues, Winter 2017

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