As I promised yesterday, I want to share a few thoughts on some arguments that Jeremy Waldron makes in The Harm in Hate Speech, his book making the case for criminalizing hate speech. (Prof. Waldron’s Holmes Lectures, from which the book grew, were published in the Harvard Law review, and are available here.) I will address the main arguments of chapters 3, 4, and 5 of the book, which are, respectively, that “hate speech” should be understood as a form of group libel, that criminalizing it serves to give members of minority groups the assurance that they will be treated as equal citizens, and that while aiming at denials of dignity, the criminalization of hate speech does not and should not protect from offence. For the sake of readability, I will devote a separate post to each of these claims. This one deals with the equation of hate speech and group libel.
“Hate speech” is a notoriously slippery phrase. But, says prof. Waldron, we can go back to a different one, that was used, for example, in Beauharnais v. Illinois, 343 U.S. 252 (1952), to understand what we really ought to get rid of: “group libel.” What we want to get at are written statements denigrating members of certain groups qua members of groups in ways that make them appear unworthy of the dignity of citizenship or, perhaps, more broadly, membership in society. Just as defamation law generally is concerned with unjustified deprivations of reputation inflicted on individuals by a falsehoods that tend to lower them in the estimation of right-thinking people, group libel is concerned with deprivations of reputation inflicted on individuals―not groups―but by making their membership in certain groups appear to make them unworthy of citizenship. And while a person can only recover damages in a civil defamation suit if he or she is identifiable as the target of a defamatory statement, criminal prosecution of group libel does not require any specific person to be targeted, because the state can justly take up the cause of all the members of the targeted group.
But there are several problems with prof. Waldron’s attempt to tie the prohibition on hate speech with the law of libel. For one thing, I do not quite understand his focus on libel (written defamatory statements) as opposed to slander (oral defamatory statements) and thus defamation generally. Prof. Waldron says that the written word has a permanence and a visibility that the spoken word lacks, and is therefore more injurious. I doubt that this is so. Take anti-Semitism. I’m pretty sure that word-of-mouth calumny contributed much more to it than, say, The Protocols of the Elders of Zions, or any other such screed, which relatively few people read. What was much more harmful was the casual prejudice of a majority who never did.
Another set of difficulties involves the differences between the law of defamation, whether libel or slander, and the prohibition on hate speech that prof. Waldron defends. A first difference concerns sort of statements that he would criminalize under the heading of group libel. Defamation law normally distinguishes statements of fact and opinion, the latter enjoying qualified immunity. But prof. Waldron explicitly refuses to make that distinction. He also says that statements such as “no Blacks allowed” are a form of group libel too, since they deny the equal membership of their targets in society, yet statements of this sort―distasteful as they are―are not defamatory, because they are not lies.
In another way though the scope of the prohibition on hate speech, as prof. Waldron envisions it, is narrower than that of defamation law. The latter imposes liability for all sorts of negative statements―not just those that present their targets as unfit for citizenship or membership in society. Prof. Waldron is only concerned with the statements of that sort. The reason is that, for him, the purpose of criminalizing hate speech is the protection of human dignity, which he takes to mean (among other things) the equal high status of every person as a rights-bearer and member of society. I have no quarrel with that understanding of human dignity, but it is not what underlies defamation law; defamation law is concerned with the protection of reputation, and fitness for citizenship and social membership is not the only thing that matters for a person’s reputation.
Finally, unlike the law of defamation, the criminalization of hate speech, at least as it is usually implemented―and I do not understand prof. Waldron to be advocating for something different on this point―only proscribes statements targeting a certain number of groups, usually defined by innate and/or relatively unchangeable characteristics (such as race, gender, sexual orientation, etc.). Defamation law, by contrast, might have started out as a mechanism for protecting the rich and powerful, but now it protects everyone. And it is not clear why hate speech law would not. If the worry is that racist statements will make racial minorities appear to lack the rights that the majority has, should we not worry in the same way about statements such as “police are scum”? For some people at least, such statements actually imply that members of the police are inferior, morally deficient, and perhaps deserve to be deprived of rights. Should such statements be criminalized? They are in some places―Russia is one, and of course it uses the criminalization of the stirring of hatred against “identifiable social groups” as a means of political repression. But if we don’t want to follow that dubious example, we need a distinction, an explanation for why denigration of some groups is prohibited while that of others is not. The law of defamation is not a place where such a distinction can be found.
In short, I think that prof. Waldron’s attempt to define hate speech as group libel is quite weak. There are important differences between the two concepts. Now this, without more, does not mean that he is wrong that criminalizing hate speech is a good idea. But if it is, it has to be justified on its own terms, without reference to the (perhaps) less contested defamation law; that reference is only a distraction. I turn to prof. Waldron’s justification of hate speech law in the next post.