Should Nazis, white supremacists, and Ku Klux Klan members spewing hatred be allowed to march in a peaceful college town like Charlottesville, Virginia? Should city officials give them a permit, and should the local police provide them with protection from indignant protesters?
If trouble erupts, as it easily might in such situations, and the case ends up in court, the ACLU, which champions both the First Amendment and the rights of minorities—blacks, LGBT people, Latinos, Muslims, and Jews—might easily find itself called to defend the marchers, as it has done in the past. Is this logically necessary, or wise?
If a neo-Nazi sympathizer who has driven to the rally fueled by hate runs over a crowd of peaceful protesters, killing one and injuring many others, should the president of the United States condemn both sides as equally culpable?
What about members of a fringe religious group who vent their displeasure against homosexuals by staging a noisy demonstration at the funeral of a war veteran? Though they are not injuring anybody or threatening violent harm, they are disturbing the sanctity of the event and the feelings of the bereaved attenders. The authorities might be tempted to ask them to move on. Yet, their demonstration took place on a public street and was an attempt, however misguided, to bring the question of homosexuality to public attention. Must society allow them to do so?
Once again hate speech—words that wound—has vaulted to public attention in a host of settings, including college campuses, demonstrations, the Internet, talk radio, and even presidential addresses and campaign rallies. The First Amendment protects speech as a prime value and considers it a democracy-enhancing instrument and protector of communal decision-making. Yet hateful speech, especially the racial kind, can shock and wound, rending its victims speechless, afraid, and silent, less able to participate in public conversation than they were before being made to suffer it.
Defenders of free-speech rights, such as the ACLU, are fond of saying that we must protect “the speech we hate” in order to safeguard that which we love. Presumably they mean political speech or words that criticize a public official for his or her performance. But is it really so hard to distinguish between the hateful kind and that which we all desire to protect?
Is this any harder than, for example, figuring out which kinds of associational rights we want to protect—the Girl Scouts meeting to discuss wildlife protection or first aid, certainly, but not criminals or terrorists meeting in secret to plan their next move?
Or put it this way: must the First Amendment be a seamless web, as many seem to think it is? It never has been and it is not now. For decades, courts have held that hate speech on the job can amount to employment discrimination, which is of course illegal. And if you employ too much vituperation on the Internet you may find that your service provider cuts you off, which it is entirely within its province to do. In many court systems, hate speech is a tort for which one can recover damages in a civil lawsuit. And for several years, federal authorities have been punishing hate crime when someone commits an offense, such as assault or arson, with a racial motivation—which is of course provable only by examining what the accused has said or posted somewhere, perhaps on the Internet.
For many years, courts have been redressing hate speech under a variety of existing causes of action, even if they do not fit exactly. For example, the offending words might have been overheard and so amount to a borderline defamation. A court might easily find that they contain an element of menace or threat, and if so amount to an assault or battery, especially if they accompany light touching, a push, or a shove.
What if they lack any of these, but the victim of those harsh, racially tinged words is a schoolchild and the speaker is a teacher, administrator, or other authority? Once again, courts seem willing to try to find a theory to justify relief, even though no statute or express common-law cause of action commands it.
Other countries go even further, punishing hate speech as a crime, particularly if it targets historically oppressed groups such as Jews or Roma (Gypsies). The sky doesn’t fall: indeed many of these countries have a political atmosphere that is freer and more vibrant than ours; citizens there merely cannot engage in vituperation against each other. So why are we so reluctant to follow suit?
If hate speech is not a legal wrong, is it nevertheless immoral, so that we all should condemn it and not make special efforts to “defend Nazis,” in the words of our title? Perhaps not—maybe abrasive speech is merely part of the ordinary give-and-take of daily life, something we all should get used to and ignore. Or learn to talk back. Or be grateful when it happens because it enables us to know who thinks ill of us and who doesn’t. At the time we went to press, the ACLU was struggling with these very questions in connection with white supremacist rallies like the one mentioned above, especially those that include guns.
Defenders of a vigorous system of free speech often encourage the victims of hate speech to “get over it.” They dismiss their reactions to hate speech as mere offense, as though it were a matter of being called by the wrong name in class or at a work meeting. Indeed, how damaging is hate speech? Does it cause lasting injury, and, if so, of what kind? Who is most vulnerable—children? Minorities? Workers in an office laced with homophobic or misogynistic remarks and “jokes”?
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This book takes up all these issues. Chapter 1 considers the harms of hate speech. Chapter 2 examines hate speech on university and college campuses. Chapter 3 discusses hate speech in an emerging realm—cyberspace. Chapter 4 analyzes arguments against hate-speech regulation that tend to be associated with neoliberals. Chapter 5 takes up a number of arguments made by neoconservatives. Chapter 6 examines the experiences of other Western societies that have enacted anti-hate-speech laws to see what lessons they offer for American institutions. Chapter 7 sets out guides for activist lawyers and judges interested in approaching the hate-speech controversy intelligently. A final chapter discusses “the speech we hate.”
As we’ll see, this book argues for a much more nuanced position than the one you usually hear. We believe that society should take more decisive measures to marginalize and discourage hate speech of all kinds than it has been doing. Moreover, we believe that this would be constitutionally and morally permissible and the right thing to do, even in the world of business and profits, such as the Internet.
Is this book—and the slow turn whose development it traces—bad news for lovers of free expression and debate? Not at all. For one thing, it can hardly serve the defenders of any system of values to pretend that the system is not in need of reform if it really is. For another, we argue that mechanical jurisprudence has seemingly paralyzed the thinking of many First Amendment absolutists. Judging from the naïve policy arguments they continue to put forward, their mental muscles have been paralyzed through disuse. Alerting them to the kind of debate they must now enter benefits them as well as society at large.
This book points out that values of free expression and equal dignity stand in reciprocal relation. The civil rights struggle relies on speech and expression. Equality, in short, presupposes speech. And conversely, any sort of meaningful speech requires equal dignity, equal access, and equal respect on the part of all who participate in a dialogue. Free speech, in other words, presupposes equality. Adjusting the fine balance between these two seemingly incompatible values can only strengthen both.
The time has come for our finest minds—and for citizens at large—to understand the double dependency between free speech and equal dignity, and to realize that the hard work of balancing competing principles must now begin. It is imperative to put aside tired maxims and conversation-closing clichés that formerly cluttered First Amendment thinking and case law. With the belief that this hard work will prove to be beneficial, not only for marginalized groups struggling against a tide of injurious depiction but for an increasingly diverse society at large, we wrote this book.