Nadine Strossen: why hate speech laws don't work (short book)
Nadine Strossen has appeared at forums on free speech at Bearing Drift and Cato, and her short book Hate: Why We Should Resist It with Free Speech, not Censorship lays out the case against hate speech laws.
In the United States, 'hate speech' is protected by the First Amendment unless it is illegal for a specific reason, which would include committing other crimes or selling criminal products and services (like trafficking). Obscene speech is not protected.
But in other countries, especially in western Europe, much speech that is directed at formerly disparage groups is illegal and sometimes brings significant punishments, even jail sentences, sometimes even in private professional communications. Much of what is forbidden depends on specific problems in a country's history, such as neo-Nazi speech in Germany and most of Europe.
Strossen maintains that in the United States, speech protection must maintain viewpoint neutrality. This can become a problem when a religious group wants to restrict behavior of people outside of the group (such as anti-gay measures in the past).
She also argues that hate speech laws generally do not protect people in affected groups, and that generally counter-speech is more effective than censorship.
Private companies, even very large platforms, are legally free to set their own standards for speech, and typically remove what is generally seen as obvious hate speech.
Stossen examines the conceptual difficulties in trying to draft hate speech laws that would not be excessively vague and subjective. Some attempts in the past have even tried to criminalize 'blood libel' or even intellectual criticism or a religious doctrine (as 'blasphemy').
Activists who insist on hate speech regulation (especially on campuses) believe that some issues should be regarded as 'settled' and should not be subject to intellectual speculation. This gets mixed with discussions about whether some people should be prohibited from organizing at all: for example, white supremacists could be banned, but not 'BLM'. The rational is that allowing such organizing eventually threatens the protected groups; for example, black people could face resegregation or even attempts to restore slavery, or at least extreme police profiling. Likewise, religious objections, when spoken, to homosexuality or particularly now gender fluidity could result in the loss of political rights for people in these groups as well as threats of violence. But the threat of an undesirable political outcome in the future should not be a reason to suppress individual speech.
Today's younger generation places less emphasis on free speech than older generations for a variety of reasons. But there is also a resurgence of authoritarian thought, the idea that it is more important for people to work together for a top-down common good than to get every policy right. This gets into another topic, a lack of respect for the truth.
The author is professor of constitutional law at New York Law School and a former president of the ACLU.
Also, Review by Jonathan Marks in the WSJ.
Author: Nadine Strossen
Title, Subtitle: Hate: Why We Should Resist It with Free Speech, not Censorship
publication date 2018
ISBN 978-0-190085912-1
Publication: Oxford University Press, 200 pages, indexed, 9 chapters
Link: Publisher link