One Man's Case For Regulating Hate Speech

Jun 3, 2012
Originally published on June 3, 2012 10:37 am

Warning: This story contains language that some might find offensive.

In the late '70s, Skokie, Ill., became the epicenter of the debate over free speech in the U.S. The town was home to many Holocaust survivors, along with their families, and that made it a target for the National Socialist Party of America — a neo-Nazi group from nearby Chicago.

The group planned to march through the heart of Skokie carrying anti-Semitic signs and proclaiming "white power." At first, Skokie banned the rally, but the Nazis fought the town in court. With help from the American Civil Liberties Union, the Nazis brought their case all the way to the Supreme Court, which affirmed that, under the First Amendment, they had a right to march.

The case became a landmark, proving that even speech that many Americans find reprehensible is legally protected in the U.S. But a few voices still say the Skokie decision was wrong.

According to New York University law professor Jeremy Waldron, "In terms of the defacing of that social environment, the impact on the people concerned, the sense of terror reawakened by the nightmares that this sort of speech evoked — those concerns, it seemed to me, would have justified very serious restriction."

In his new book, The Harm in Hate Speech, Waldron calls attention to the fact that the U.S. is the only liberal democracy in the world without some version of hate speech regulation — the kind of regulation that would have stopped the Nazis from marching in Skokie.

"Many of the things that people have a right to do in the United States are wrong," Waldron tells NPR's Rachel Martin. "They don't have a right to do everything that's wrong and I'm arguing that the category of things that they shouldn't have a right to do should be somewhat expanded."


Interview Highlights

On legal definitions of hate speech

"It's usually defined first of all in terms of its intention, that it's speech which is intended to cause the stirring of hatred and hostility towards a particular group. That's not enough on most definitions; they also insist that it must be likely to generate such hatred and hostility. Thirdly, the speech must be offered in a threatening, abusive and insulting way. And fourthly, these statutes tend to define safe havens or places where such speech can be engaged in without incurring liability, for example a conversation in one's home. Many of these laws bend over backwards to try to narrow down a particular range of damaging speech to the most egregious cases."

On how hate speech legislation would apply to the Westboro Baptist Church, which stages anti-gay demonstrations at military funerals and Holocaust memorials

"There are two important issues here. One is the content of the speech itself. Forgive me if I use bad words, but people are saying, 'Fags must die,' or that sort of thing on their posters, and certainly under the laws that I propose and the laws that exist in other regimes, that sort of talk would land people with a prosecution. There's further the question of time, place and manner, having to do not just with the abusive manner in which the speech is performed, but also with the intrusiveness on public funerals. And I believe that raises other important issues that would not be dealt with under a hate speech [law]."

On how hate speech legislation would apply to Terry Jones, the Florida pastor who became infamous for organizing an 'International Burn a Quran Day'

"I think that's in a different category all together. One of the things that I try to do in the book — and [I] try to do it at length — is to distinguish the protection of human dignity from something quite different, which is protecting people from offense, even egregious offense. And I don't believe it's the role of law to protect people from being offended.

"I think there shouldn't have been legal repercussions under this sort of legislation. Of course it was a stupid, ill-judged, and dangerous thing to have done, but sometimes we have to swallow hard. And I think it's really, really important when we think about these issues to maintain this distinction between dignity and offense and to maintain the distinction between insulting and defaming the believers, and deriding or ridiculing or abusing the religion itself. The first is what hate speech legislation is aimed at, not the second."

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RACHEL MARTIN, HOST:

More than three decades ago, a suburb of Chicago became the epicenter of the debate over free speech in the United States. That suburb was Skokie, Illinois. It was the late 1970s, and the town had become home for survivors of the Holocaust and their families. That also made the town a target for the National Socialist Party of America, a neo-Nazi group from Chicago. The group planned a march through the heart of Skokie, carrying anti-Semitic signs and proclaiming white power. Saul Goldstein had survived Auschwitz, and letter settled in Skokie. The protest threatened to open old wounds.

SAUL GOLDSTEIN: From my own experience as a survivor, I can tell you that the Nazis are bullies. And bullies are cowards.

MARTIN: At first, Skokie banned the rally, but the Nazis fought the town in court.

FRANK COLLIN: I am interested only in the rights to free speech.

MARTIN: Frank Collin was the leader of the Chicago Nazis. With support from the American Civil Liberties Union, the Nazis brought their case all the way to the Supreme Court. The Court affirmed that the Nazis had a right to march under the First Amendment. David Hamlin headed the Illinois chapter of the ACLU at the time.

DAVID HAMLIN: It's a textbook case, without question. And it will be in textbooks, I'm sure, for years and years to come.

MARTIN: Hamlin was right. The Skokie case became a landmark, proving that even speech that most Americans find reprehensible is legally protected in the United States. But a few voices say that Skokie decision was wrong.

JEREMY WALDRON: In terms of the defacing of that social environment, the impact on the people concerned, the sense of terror reawakened by the nightmares that this sort of speech evoked - those concerns, it seemed to me, would have justified very serious restriction.

MARTIN: That's Jeremy Waldron. He's a law professor at New York University and Oxford. And he's written a book called "The Harm in Hate Speech." He calls attention to a startling fact: the United States is the only liberal democracy in the world without some version of hate speech regulations. He argues that hate speech is toxic and some of it should be illegal. And a note here - some of the language in our conversation is disturbing.

WALDRON: It's rather like a form of insidious pollution of the social and political environment. I would also want to emphasize that it's not just the issue of offensiveness to the people who are the targeted audience. There's also the creation of fear, apprehension, not to mention having old nightmares re-awoken. In Europe, those include nightmares of anti-Semitism and the Holocaust. In the United States, even though we don't have such laws, we still have the nightmares of our racism and racial terrorism.

MARTIN: How do you know hate speech? How do you define it?

WALDRON: It's usually defined, first of all, in terms of its intention; that it's speech, which is intended to cause the stirring of hatred and hostility towards a particular group. That's to enough on most definitions. They also insist that it must be likely to generate such hatred and hostility. Thirdly, the speech must be offered in a threatening, abusive and insulting way. And fourthly, these statutes tend to define safe havens or places where such speech can be engaged in without incurring liability. For example, a conversation in one's home. So, many of these laws bend over backwards to try to narrow down a particular range of damaging speech to the most egregious cases.

MARTIN: But this is, obviously, subjective to some degree. How do you ensure that a government doesn't abuse this power of intervention?

WALDRON: Yeah, it's a very good question. In many areas of law, there are tests that involve disagreement between reasonable people. Our whole Constitution involves numerous standards on which reasonable people disagree. Our approach to those disagreements is not to be terrified by them but to try to work in good faith in the best way we can. And that I think is important in this context as in every other context of legislature.

MARTIN: I'd like to ask you about a couple of different examples. The Westboro Baptist Church, a group that has used extreme anti-gay speech. In the past, they've protested at military funerals and Holocaust memorials. How do you see this playing out in respect to that particular group?

WALDRON: Yeah. There are two important issues here. One is the content of the speech itself. The - forgive me if I use bad words - but people are saying fags must die or that sort of things on their posters. And certainly under the laws that I've proposed and the laws that exist in other regimes, that sort of talk would land people with a prosecution. There's further the question of time, place and manner, having to do not just with the abusive manner in which the speech is performed but also with the intrusiveness on public funerals. And I believe that raises other important issues.

MARTIN: Terry Jones, the Florida pastor who became infamous for setting up what he called an international burn-a-Quran day - your take on that situation.

WALDRON: I think that's in a different category all together. One of the things that I tried to do in the book and tried to do it at length is to distinguish the protection of human dignity from something quite different, which is protecting people from offense, even egregious offense. And I don't believe it's the role of law to protect people from being offended.

MARTIN: So, you think there shouldn't have been repercussions then for Terry Jones?

WALDRON: I think there shouldn't have been legal repercussions under this sort of legislation. Of course, it was a stupid, ill-judged and dangerous thing to have done, but sometimes we have to swallow hard. And I think it's really, really important when we think about these issues to maintain this distinction between dignity and offense and to maintain the distinction between insulting and defaming the believers, and deriding or ridiculing or abusing the religion itself. The first is what hate speech legislation is aimed at, not the second.

MARTIN: So, you conceded that it is unlikely that American laws will change, but you do say there is a role for American leaders, that they bear some responsibility in discouraging this kind of speech.

WALDRON: I think that's absolutely true, and I think everybody should agree with that. So, suppose we were to say that there's nothing that we can do about cross-burning, but certainly there's a role for leaders and educators, for the parents of, say, young men who are disposed to do this to make sure that the sense that this is wrong, even if we have to grit our teeth and call it legal, must be maintained.

MARTIN: Jeremy Waldron, his new book is called "The Harm in Hate Speech." He joined us from Oxford, England. Mr. Waldron, thanks so much.

WALDRON: Thank you very much indeed. It was a pleasure. Transcript provided by NPR, Copyright NPR.