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On Resurrecting Beauharnais:
Jeremy Waldron and Group Libel
by

Terrence Heinrichs
Associate Professor, Political Science, York University

2016 Terrence Heinrichs


All Rights Reserved
4

available at blurb.ca and amazon.com


Published by Half Full Publishing
Contact: JamesBennettiii@icloud.com

Acknowledgments
I would like to thank the following for their kind assistance in
reading and commenting on this manuscript, and for listening to
my many rants over pints and pints of beer: Bill Irvine, Mark
Lippincott, Ed Andrew, David Carvounas, and, of course, the
lady of the house, Anne J. Green.
Special thanks go to James Bennett both for his comments on
parts of the manuscript and for the time and energy he devoted
preparing it for publicationall the while having to deal not only
with my many ongoing additions and subtractions but with the
added burden of law school as well.

Preface
In The Harm in Hate Speech, Jeremy Waldron opens his
defense of group defamation statutes with the following anecdote:
A man out walking with his seven-year old son
and his ten-year-old daughter turns a corner on a
city street in New Jersey and is confronted with a
sign. It says: Muslims and 9/11! Dont serve them,
dont speak to them, and dont let them in. The
daughter says, What does it mean, papa? Her
father, who is a Muslimthe whole family is
Muslimdoesnt know what to say. He hurries
the children on, hoping they will not come across
any more of the signs. Other days he has seen
them on the streets; a large photograph of Muslim children with the slogan They are all called
Osama, and a poster on the outside wall of his
mosque which reads Jihad Central.1

Jeremy Waldron, The Harm in Hate Speech (Harvard University Press


2012). Hereinafter all references to this work will be incorporated into the text
with relevant page numbers, and referenced in footnotes as Waldron.

Preface

Waldrons reading of these signs is that they are hate


speech,2 but more than just good ole boys harmlessly letting o steam, they send a message to the Muslim minority:
Dont be fooled into thinking you are welcome
here. The society around you may seem hospitable and nondiscriminatory, but the truth is that
you are not wanted, and you and your families will
be shunned, excluded, beaten, and driven out,
whenever we can get away with it. We may have
to keep a low profile right now. But dont get too
comfortable. Remember what has happened to
you and your kind in the past. Be afraid. (2)
The message is not only directed at Muslims; it is also
directed at non-Muslim members of the community:
We know some of you agree that these people are
not wanted here. We know that some of you feel
they are dirty (or dangerous or criminal or terrorist). Know that you are not alone. Whatever the
government says, there are enough of those
around to make sure these people are not welcome. There are enough of us around to draw attention to what these people are really like. Talk
to your neighbors, talk to your customers. And
above all, dont let any more of them in. (2-3)
2

Which he says refers to publications which express profound disrespect, hatred, and vilification for the members of minority groups. Given that his concern is limited to protecting minority groups from expression he thinks harmful, he also appears to be a double-standard speech suppressionist as the definition does not apply to such attacks on majority group members. Waldron
at 27. See Chapter II.

Preface

The idea, Waldron says, is to make these messages a part of


the permanent visible fabric of society so that for Muslim
fathers walking their children there will be no knowing
when they will be confronted by one of these signs. (3)
A native New Zealander, Jeremy Waldron is currently
Professor of Law at the New York School of Law and formerly Chichele Professor of Social and Political Theory at
All Souls College, Oxford University. He has been called
one of the two or three greatest legal philosophers of our
3
time by Harvard Law School Dean Martha Minnow; he has
authored at least twelve books in both law and political philosophy along with many articles and is clearly one of the
most prestigious members in the jet-setting, global law and
politics fraternity.
The Harm in Hate Speech is based primarily on the
Holmes Lectures Waldron gave at Harvard Law School in
2009. In his book, he undertakes to defend the wisdom and
morality of a group libel statute. He says he is not interested
in the question of whether such a statute meets American
constitutional tests, nor is he interested in presenting any
particular model group libel statute; he is writing, instead, to
demonstrate that the arguments traditionally brought against
such statutes are not convincing and, perhaps, even, jejune.
Nevertheless, even though much of the Western
world is on-board, he is not sanguine about the prospects
Americans will accept his arguments. Often, he says, American philosophical arguments about hate speech are knee3

John Paul Stevens, Should Hate Speech Be Outlawed?, The New York Review of Books (June 7, 2012) (book review, reviewing Jeremy Waldron,
The Harm in Hate Speech (2012)), at http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed/?pagination=false.

Preface

jerk, impulsive, and thoughtless. (11) Still, he says, America


once had state, municipal, and village ordinances restricting
hate speech, and opposition to such laws is by no means
unanimous or monolithic. (12) And so, he concludes, it is because not everyone thinks that lawmakers must be compelled to stand back and let this material debase their society, that he has some hope that his readers will at least understandrather than impatiently dismissthe more
thoughtful arguments that can be mustered in favor of these
laws. (12)
Despite his argument for censoring expression that he
believes libels certain groups Waldron does not consider
himself an opponent of freedom of expression. Instead, he
says that the form of hate speech he is targeting4 is far outside the moral boundaries of free speech, and that he is targeting only its morally most repugnant aspects. Whether, in
fact, his book successfully cabins expression in this way is, I
think, doubtful. More generally, I shall suggest that his overall argument against those who oppose group libel statutes is
flawedin my view, fatally.
One final word by way of introduction. Waldron says
that his book is not an even-handed survey of the arguments
for and against, but that he tries to come to terms with and
respond to what [he thinks] are the best arguments that can
be made against the regulation of hate speech. (14) If this
was all he was doing, it would be a dierent book. However,
The Harm in Hate Speech is not only that; it is also a blow
across the bow of anyone who has the audacity to argue the
case against hate speech laws.
4

Given that he is allegedly targeting only group libel, and given that group libel
is only an aspect of what currently passes for hate speech, it is puzzling why
Waldron titles his book The Harm in Hate Speech.

Preface

It is dicult enough to defend freedom of expression


against those who believe it is but a ruse for supporting
something already billed as nasty as hate speech; for who,
in their right mind, would defend such expression, especially
when it is said to be used to oppress the poor, the vulnerable,
and the downtrodden? To do so is to risk being condemned
by demagogues as supporting the goals or objectives of the
hate speaker, or, at best, to be outed as a naf, a fool who is
doing damage where he thinks he is doing good. Somewhere
in the middle is the charge that a person who defends the
rights to speak of alleged hate speakers is someone, neither
the one nor the other, who is an academic game-player, a
dandy who seeks academic accolades at the expense of those
who are victimized.5
In reply, I would make two points: first, Waldron, apparently, is not aware that the self-same game-playing
charges could just as easily be leveled against those who defend such statutes as those who reject them; and, second,
while Waldron would likely disagree, the need to protect
freedom of expression against hate speech statutes is vital to
5

This last seems to be Waldrons preferred criticism of defenders of the free


speech rights of pornographers and hate speakers. Often, in the American
debate, the philosophical arguments about hate speech are knee-jerk, impulsive, and thoughtless. Waldron at 11. The importance of this subjective aspect of indignity should not be suppressed, even though the price of emphasizing it is to open the way for critics of hate speech laws to sayI think with
studied obtusenessthat the only purpose of such laws is solicitude for peoples hurt feelings. Waldron at 112. [I]n my experience opponents of hate
speech laws will pretend to be exasperated by their subtlety. Waldron at 115.
I do not think people should defect from this school of jurisprudence just because they perceive some advantage to doing so for their position in the hate
speech debate. Waldron at 116.

Preface

protecting the whole of liberty itself and is becoming more


vital every day as the excesses of political correctness become
more and more common. Almost daily we hear of some
event, somewhere in America, where someone has argued
that freedom of expression should be restricted either because it conflicts with other more important values, or because speech can be hurtful or oensive, or because it stands
in the way of attaining something we want. Rare is the person today who thinks that people should be free to say what
they think even if hurt feelings result, oense is given or
taken, some important interest is crossed, or some powerful
orthodoxy opposed. And while it is certainly true that the average American fifty or so years ago was not likely to take
freedom of expression to the limit, it is just as true that he or
she was educationally imbued with the idea that freedom to
say what you think was generally a good and noble idea.
Open and honest political discourse was valued then even if
it was not always to be practiced.
From the 1980s on we have seen a steady stream of attacks on the value and utility of freedom of speech as such.
Some of these attacks have been directed against pornography, but more, I believe, against hate speech. A large part of
the reason for this has been the success of what has come to
be called the political correctness movement. This movement which is largely, but not entirely, a phenomenon of the
political left has directed its eorts to silencing anyone who
opposes the tenets of diversity or multiculturalism, as
these are portrayed either in theory or as they are played out
in practice. As Greg Lukiano,6 president of the Foundation
6

Greg Lukianoff, Unlearning Liberty: Campus Censorship and the


End of American Debate (Encounter Books 2012). The political correctness
movement has infected even the military. Commenting on the murder of 13

Preface

for Individual Rights in Education (FIRE) has argued, this


movement has infected the educational process all the way
from grade school to university. At every stage along the way,
students have been schooled in unlearning the liberty of
thought and opinion the First Amendment not only permits
but requires if we are to live together as citizens in a free and
democratic society.
In my view The Harm in Hate Speech is an important
expression of this burgeoning speech suppressionist movement and, as such, deserves detailed examination. However,
before we undertake this examination, it might be useful for
those unfamiliar with the American context of Waldrons argument to sketch in brief the storied political and legal background of group libel in America.7

people by jihadist Major Nidal Hasan at Fort Hood, the Armys Chief of Staff,
General George Casey said: Our diversity, not only in our Army, but in our
country, is a strength. And as horrific as this tragedy was, if our diversity becomes a casualty, I think thats worse. Tabassum Zakaria, General Casey: diversity shouldnt be casualty of Fort Hood, Reuters (Nov. 8, 2009), http://blogs.reuters.com/talesfromthetrail/2009/11/08/general-casey-diversity-shouldnt-becasualty-of-fort-hood/. Sorry, General, your business is to kill the enemy, not
to worry about diversity.
7

Those familiar with this history might want to skip this discussion and move
on to Chapter I.

n
Table of Contents
Preface: 1
IntroductionGroup Libel in America:
Cases, Arguments, and Outcomes: 11
I The Argument: 33
II Vulnerability, Security, and Double Standards: 71
III Pornography and Hate Speech as Causes of
Vulnerability: The Slow-Acting Poison Argument: 103
IV State & Society: Private Individuals as
State Officials: 155
V On the Wisdom of Partnering with State Officials
About What We May See, Hear, and Read: 197
VI Waldrons Civility Argument: 213
VII Ending Debate in the Marketplace of Ideas: 231
VIII Hate Speech Versus Good Speech:
Line Drawing and Application Problems: 253
IX Canadas Hate Speech Laws:
Responsibly Administered? 297
X The Slippery Road From Dignity to Offense: 307
XI Hate Speech and Pornography as
World Defining Activities: 345
Conclusion: 369

Introduction
Group Libel in America:

Cases, Arguments, and Outcomes


In 1952, seven years after the end of World War II
and its attendant racial horrors, the Supreme Court of the
United States (SCOTUS) upheld an Illinois statute that in
relevant part made it an oense for any person to publish,
present or exhibit in any public placeany lithographwhichportrays depravity, criminality, unchastity, or
lack of virtue of a class of citizens of any race, color, creed or
religion whichexposes [them] to contempt, derision, or ob8
loquy or which is productive of breach of the peace or riots.
The defendant, Joseph Beauharnais, was president of
a group called the White Circle League which, and at his direction, distributed leaflets in downtown Chicago petitioning
the mayor and city council to halt the further encroachment, harassment and invasion of white people, their property, their neighborhoods and persons by the Negro. It issued a call, as well, for One million self-respecting white
people in Chicago to unite saying that If persuasion and

Beauharnais v. Illinois 343 U. S. 250 (1952).

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressionsrapes, robberies, knives, guns and marijuana of the negro, surely will.9 Beauharnais was charged with violating the
statute and defended his actions by citing the Fourteenth
Amendments guarantees of the liberty of speech and of the
press and that the statute was too vague to support convic10
tion. Citing the language of Terminie!o v. Chicago, his free
speech and press defense argued that the leaflet was not
likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.11 The trial court rejected this defense as inapposite, convicted him as charged, and fined him $200.
In a 5-4 ruling, the SCOTUS, behind Justice Felix
Frankfurter, armed Beauharnais conviction, and adopting
a rational basis standard of review, held that Illinois history of racial antagonism could certainly justify the statute,
saying that, in any case, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it
is not unrelated to the problem and not forbidden by some
12
explicit limitation on the states power.
Having granted Illinois right to choose its particular
remedies for racial conflict, Frankfurter turned to the question of libel itself saying that the libel of individuals has never
been thought to raise free speech problems; indeed, he said,
9

Id. at 252.

10

337 U. S. 1, 4 (1949).

11

Beauharnais, 343 U. S. at 253.

12

Id. at 261-62.

12

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

all 48 states have laws protecting against such libels. But individual libel was not at issue in this casegroup libel was
and the question was whether it is consistent with freedom
of speech to criminalize libelous utterances directed at large
13
groups of people flagrantly disseminated.
Following Chaplinsky v. New Hampshires14 ruling that
libel was not protected by the First Amendment, Frankfurter
saw no problem concluding that since group libel was but a
species of libel, it was unprotected expression. And because
it was not protected by the First Amendment, group libel
was also not subject to the clear and present danger test.15
However, it was in his attempt to assimilate group libel to
the libel of individuals that Frankfurter made, perhaps, his
most important and lasting intellectual contribution to the
group libel argument.
No one will gainsay, he said, that it is libelous
falsely to charge another with being a rapist, robber, carrier
16
of knives and guns and user of marijuana, but can the same
be said to hold for collective entities? Drawing a connection

13

Id. at 255, 266.

14

315 U. S. 568 (1942). There are certain well-defined and narrow limited classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem. These include the lewd and obscene, the
profane, the libelous, and the insulting or fighting wordsthose which, by
their very utterance, inflict injury or tend to incite an immediate breach of the
peace. Id. at 571-72.
15

Beauharnais, 343 U. S. at 266.

16

Id. at 258.
13

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

between individuals and their group memberships, Frankfurter said: Long ago this Court recognized that the economic
rights of an individual may depend for the eectiveness of
their enforcement on rights in the group, even though not
formally corporate, to which he belongs. And so:
It is not within our competence to confirm or
deny claims of social scientists as to the dependence of the individual on the position of his racial
or religious group in the community. It would,
however, be arrant dogmatism, quite outside the
scope of our authority in passing on the powers of
a state, for us to deny that the Illinois Legislature
may warrantably believe that a mans job and his
educational opportunities and the dignity accorded him may depend as much on reputation of
the racial and religious group to which he willy17
nilly belongs, as on his own merits.
On this argument, as the reputation of an ascriptive group
goes, so go the reputation and fortunes of the individual
group member.
Frankfurter dismissed the defenses claims that the
statute was both vague and overbroad and rejected Beauharnais attempt to defend the truth of his allegations saying
that his showings were not as extensive as the defamatory allegations against him; and while the trial court objected to
his attempt to prove his good motives, the attempt was not
18
raised on appeal.
17

Id. at 262-63.

18

Id. at 266, n21-22.

14

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

Four justices wrote dissents. Justice Reed (joined by


Justice Douglas) argued that key terms of the statute such as
virtue, derision, and obloquy were so vague as to render
the statute overbroad.19 Justice Jackson dissented because of
what he felt were insucient safeguards to protect free expression interests. While he deplored the habitual intemperance and bitter disparagement that characterizes hateful
expression, and while he supported the right of a state to
place decent bounds upon it, Jackson said he was not ready
to hold that group purposes, characteristics, and histories are
to be immunized from comment or may be discussed only at
the risk of prosecution free of all usual safeguards.20 And he
added that Punishment of printed words, based on their
tendency either to cause breach of the peace or injury to persons or groupsis justifiable only if the prosecution survives
the clear and present danger test.21
Justices Black and Douglas also oered vigorous dissents, with the former saying that the statute is so encompassing it imposes state censorship over the theater, moving
pictures, radio, television, leaflets, magazines, books and
newspapers, and, with an eye to the future, he warned that
the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to
send people to jail in other states for advocating equality and
nonsegregation.22 Even more presciently, he noted, given the
reach of the law and the whims of judges, in arguing for or
19

Id. at 278-79.

20

Id. at 301.

21

Id. at 303.

22

Id. at 271, 274.

15

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

against the enactment of laws that may dierently aect


huge groups, it is now very dangerous indeed to say something critical of one of the groups.23
Justice Douglas, following his line of argument in Ter24
minie!o v. Chicago, added sharply:
Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be hailed before a court for denouncing
lynch law in heated terms. Farm laborers in the
west who compete with field hands drifting up
from Mexico; whites who feel the pressure of orientals; a minority which finds employment going
to the members of the dominant religious
groupall of these are caught in the mesh of todays decision. Debate and argument even in the
courtroom are not always calm and dispassionate.
Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of
man. Hot-heads blow o and release destructive
energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing
with alarm. So it has been from the beginning;
and so it will be throughout time.25
23

Id. at 273.

24

337 U. S. 1, (1949). A function of free speechis to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.
25

Beauharnais, 343 U. S. at 286-87.

16

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

Not long after Beauharnais, and, perhaps, partly because of


the dissents, both Illinois and the country as a whole began
to move in a distinctly dierent direction. Those formerly in
support of such laws began to turn against them.26
During the late 50s, 60s and most of the 1970s group
libel was pretty much a dead letter, in part because the courts
strengthened protections for freedom of expression across
the board,27 and, in part, because of the important role
played by the First Amendment in the movement for civil
26

For example, David Riesman had written three articles in 1942 supporting
the passage of group libel laws but retracted his support for them in 1951, a year
before Beauharnais, arguing that minorities were little served by such laws and,
in fact, were just as likely to be victims of them. In 1978, at the height of the
Skokie controversy, Riesman rejoined the ACLU which, at the time, was defending Frank Collin, head of the American Nazi party which was seeking to
march in full Nazi regalia in the Skokie village square. As well, in 1960, the
American Jewish Congress reversed its past support for group libel laws and
passed a resolution repudiating them. Then, in 1963, the National Jewish Community Advisory Relations Council followed suit dismissing American Nazi
groups as a nuisance and an irritant rather than a threat. Finally, in 1961 Illinois repealed its 1917 group libel statute altogether. Samuel Walker, Hate
Speech: the History of an American Controversy 99-100 (University of
Nebraska Press 1994).
27

See e.g., Cohen v. California 403 U. S. 15 (1971); Gooding v. Wilson 405 U. S.


518 (1972); Rosenfeld v. New Jersey 408 U. S. 901 (1972); Brown v. Oklahoma
408 U. S. 914 (1972); Lewis v. City of New Orleans 415 U. S. 130 (1974) (cases
amending the fighting words doctrine of Chaplinsky to exempt offensive or
insulting language even when directed at individuals).

17

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

rights for black Americans. Nevertheless, libel law was a formidable weapon in the arsenal of Southern ocials who were
wont to sue any publication for damages that may criticize its
segregationist policies. Given the importance of freedom of
speech to the desegregationist movement, were these ocials to have succeeded, the elimination of segregated facilities in the Southern states would likely have been set back
years. However, in 1964, the SCOTUS struck down an Alabama statute punishing libelous statements targeting public
ocials, saying in the process that debate on public issues
28
should be uninhibited, robust and wide-open.
Libel laws were but one way Southern states attempted to protect their segregationist policies from attacks
by civil rights groups; there were other methods as well. One
was by compelling the disclosure of membership lists of targeted organizations. However, an early precedent involving
the Ku Klux Klan posed an obstacle to the National Association for the Advancement of Colored People (NAACP)
pressing the argument against compelled disclosure. In 1928
the SCOTUS upheld a New York state law requiring corporations (other than labor unions or benevolent orders) with
twenty or more members and requiring an oath to join, to file
with the secretary of state, among other things, a roster of
its membership and a list of its ocers for the current
year.29 The statute was little more than a thinly disguised attempt to intimidate potential Klan members into thinking
twice before joining. Bryant, the relator in the case, attempted to defend by claiming he was denied equal protection because the statute unconstitutionally discriminated be-

28

New York Times v. Sullivan 376 U. S. 254 (1964).

29

New York ex. rel. Bryant v. Zimmerman 278 U. S. 63, 65 (1928).


18

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

tween the Klan and other groups, such as labor unions, Masons, Odd Fellows, etc., which also required oaths for membership. The dierent classifications were justified, said the
Court, by the dierence between the organizations shown
by experience. The dierence consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its purposes and membership a cloak for acts and
conduct inimical to personal rights and public welfare, and
(b) in the absence of such a tendency on the part of the other
class.30 Bryants decision in 1928 upholding the right of legislators to require publication of the Klans membership lists
might have created a serious problem for civil rights organizations in the 1950s and 60s when the ox to be gored was not
the Klan, but the NAACP. But such was not to be.
Because of its civil rights activities, the NAACP was
the organization most feared and hated by Southern segregationists. Thus, following the example of Bryant, some Southern states attempted to frighten and intimidate Blacks by
compelling public disclosure of the NAACPs membership
lists;31 others attempted to achieve the same ends, by compelling public school teachers publicly to disclose the various

30

Id. at 74.

31

NAACP v. Alabama, 357 U. S. 449; 1958; Bates v. Little Rock 361 U. S. 516
(1960); Gibson v. Florida Legislative Investigating Committee 372 U. S. 539
(1963). In the Alabama case, the Court disposed of the Bryant precedent by distinguishing it along two lines: first that Bryant was decided on the basis of the
particular character of the Klans activities, involving acts of unlawful intimidation and violence; and second, that the Klan made no effort to comply with

19

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

32

organizations they belonged to; still others, by a variety of


subterfuges meant to prevent the NAACP from doing legal
business in the state.33 In every such case the NAACPs freedom of speech and association arguments were victorious.
Not to be outdone, in the sit-in and demonstration cases of
the 1960s, civil rights groups pleading First Amendment
rights of petition as well as speech and association were also
34
victorious.
By 1978 the marriage between the First and Fourteenth Amendments seemed secure; civil rights groups had
been successful in just about every important First Amendment case they brought. Moreover, the tide had been turning
in the 60s in cases involving illegal advocacy as well. In 1969
the Court held in Brandenburg v. Ohio that only expression
advocating law violation directed to inciting and producing
imminent lawless action and is likely to incite or produce
35
such action is punishable.
Were anyone at the time to have spoken of a rift between supporters of civil rights and those of freedom of
any of the requirements of New Yorks statute but rather had refused to furnish the State with any information as to its local activities. Alabama, 357 U. S.
at 465-66.
32

Shelton v. Tucker 364 U. S. 479 (1960).

33

NAACP v. Button 371 U. S. 415 (1963).

34

See, e.g., Edwards v. South Carolina 372 U. S. 229 (1963); Cox v. Louisiana
379 U. S. 559 (1965); Brown v. Louisiana 383 U. S. 131 (1966); Adderley v. Florida 385 U. S. 39 (1966); Shuttlesworth v. City of Birmingham 394 U. S. 147
(1969); Gregory v. Chicago 394 U. S. 111 (1969).
35

395 U. S. 444, 447 (1969).


20

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

speech, they would have had a dicult time identifying it.


Hence the surprise on the part of the American Civil Liberties Union (ACLU) when it announced that it was supporting
the right of Frank Collin and his little band of Nazis to
demonstrate in Skokie, Illinois, which was home to many
Holocaust survivors. By all accounts nothing was unusual
here; the ACLU had supported Blacks in their decisions to
demonstrate for their civil rights and liberties throughout the
country, so why should anyone consider its decision in this
case to be any dierent?
However, for many ACLU members as well as for
many others there was one big dierence the leadership, apparently, did not see. It was one thing to support Blacks in
their struggle for racial equality but quite another to support
Nazis in their drive for racial superiority. And unlike the
ACLU leadership, its critics were not exactly fans of viewpoint neutrality, at least not on this issue. Nevertheless, despite having suered a serious loss of membership and attendant depleted coers, the ACLU soldiered on, won the
case, and eventually won back many of its former members as
well as much of its funding, and, strikingly, as much or more
in the way of respect.
The ACLUs victory in the case was another nail in
the con of group libel statutes, for when Collin finalized his
plan to march in April of 1978, the village of Skokie passed
three ordinances, the second of which is relevant here. This
ordinance, almost a repeat of the 1917 group libel law upheld
in Beauharnais, prohibited the dissemination of any materialwhich promotes and incites hatred against persons by

21

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

reason of their race, national origin, or religion, and is in36


tended to do so. In declaring the second ordinance unconstitutional, the Seventh Circuit Court of Appeals held that
Beauharnais was inapposite for two reasons; first, because it
turns quite plainly on the strong tendency of the prohibited
utterances to cause violence and disorder; and, second, because, the ordinance would apparently be applied in the ab37
sence of any such threat. So, for the Seventh Circuit, and
also for the SCOTUS which let the Circuits decision stand,
the key feature around which Beauharnais turned was not the
libel of groups as such, but the likelihood of allegedly libelous
materials to incite violence. The Courts decision, thus, ratified the result of the 1969 Brandenburg decision eectively
limiting Chaplinskys fighting words doctrine to speech
which tends to incite an immediate breach of the peace.
However, soon after Skokie, the shaky marriage between the First and Fourteenth Amendments collapsed altogether, as campuses across the country passed speech codes
directed at suppressing any expression that either oended
minority group members or allegedly harmed them in some
other way. Moreover, for suppressionist purposes, women,
though clearly a majority, were assigned honorary minority
status by campus feminists and, therefore, also acquired status as a protected group. Hence were born double-standard
speech codes in which it was okay to trash white heterosexual males by means of racial insults, etc., but not women and

36

Collin v. Smith 578 F.2d 1197, 1199 (1978).

37

Id. at 1204.

22

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

38

minorities. Attempts were soon made as well to resurrect


Beauharnais from its Illinois graveyard.
One leading figure in the 1980s and 90s anti-hate
speech movement who looked back longingly and fondly at
Beauharnais was feminist law professor Catharine MacKinnon, who contended that, among other evils, pornography
was a form of group defamation of women which lied both
about them and about feminists who oppose pornography.
MacKinnon argued that Beauharnais should never have been
repudiated and should be resurrected as valid law, drawing, in
large part, on Frankfurters argument that group libel cashed
out as nothing more than a libel against every individual
member of a targeted group. In reality, she says, libel of
groups multiplies rather than avoids the very same damage
through reputation which the law of individual libel recognizes when done one at a time, as well as inflicting some of
39
its own.
Other law professors jumped in as well. Taking center
stage in the renewed racial hate speech debate, Richard Delgado, in 1982, argued the case for an independent tort for racial slurs to protect the interests of personality and equal
citizenship of racial minorities, thereby arming the right
of all citizens to lead their lives free from attacks on their
dignity and psychological integrity. Though Delgados main
concern was with the [i]mmediate mental and emotional
distress inflicted by insults, etc., he also argued that a racial
38

See, e.g., the model speech code offered by Thomas Grey, Civil Rights vs. Civil
Liberties: The Case of Discriminatory Harassment, Soc. Phil. & Poly. 8, 81
(1991).
39

Catharine MacKinnon, Only Words 81, 82, 51-52 (Harvard University


Press 1993) [hereinafter Only Words].
23

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

insult is a dignitary aront, a direct violation of the victims


right to be treated respectfully. Such dignitary aronts, he
said, maintain that the victim of the racial slur is entitled to
less than that to which all other citizens are entitled, and, as
Frankfurter might have said, provide a convenient means of
categorization so that individuals may be treated as members
of a class and assumed to share all the negative attitudes im40
puted to the class.
Not long after, Charles Lawrence III and Mari
Matsuda extended MacKinnons group libel argument even
further. Lawrence argued that Brown v. Board of Education41
was about more than just outlawing racial segregation in the
public schools. It was also a case about group defamation in
that it sent a message saying segregation was stigmatizing to
black children, thereby injuring their reputations, foreclosing employment opportunities and the right to be regarded
as respected members of the body politic. More emphatically, he said, Brown reflects that racism is a form of subordination that achieves its purposes through group defamation.42
Just as Lawrence, Matsuda focused much of her attention on the harm that racist speech is alleged to do to the
reputations and fortunes of minority group members. Racist
40

Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets,
and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 181, 143, 144 (1982) [hereinafter Words that Wound].
41

347 U.S. 483 (1954).

42

If He Hollers Let Him Go: Regulating Hate Speech on Campus, Duke L. J., 431,
463-64 (1990) [hereinafter If He Hollers Let Him Go].

24

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

speech, she argued, proclaims racial inferiority and denies


the personhood of target group members. All members of
the target group are at once considered alike and inferior.
This proclamation of inferiority amounts to the structural
subordination of racial minorities to the power of the white
majority. Reflecting this power dierential, racist speech, she
claims, is persecutorial, hateful, and degrading.43 It, thus,
harms the psyches of subordinate minorities and attacks
their reputations and rights to equal citizenship.
While the arguments of Delgado, Lawrence, and
Matsuda were very well-received by radical left-wing law professors, their arguments were not so well-received by the
courts, which held fast to legal precedents ignoring the first
part of the fighting words doctrine (words which by their
very utterance inflict injury) and applying the doctrine only
to expressions which tend to incite an immediate breach of
44
the peace. Restricting the fighting words doctrine only
to such cases meant that the courts would not be enforcing
45
campus speech codes.
And they haventto this point anyway. However,
this refusal has not prevented colleges and universities from
both expanding and redoubling their eorts to restrict or
censor expression in the name of educational values such as
43

Public Response to Racist Speech: Considering the Victims Story, 87 Mich. L.


Rev., 2320, 2358 (1989) [hereinafter Public Response to Racist Speech].
44

Beauharnais, 343 U. S.

45

Doe v. University of Michigan 721 F. Supp. 852 (E.D. Mich. 1989); UWM
Post v. Bd. Of Regents of the University of Wisconsin 774 F. Supp. 1163 (E.D.
Wis. 1991).

25

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

inclusion or diversity. Campuses today are full of talk


about microaggressions, safe spaces, trigger warnings,
and various other odd and unusual notions that function to
suppress the freedom of speakers in order to protect supposedly vulnerable students from any uncomfortable ideas,
opinions, expressions, or associations they might to their dismay encounter. Just about everywhere on campus, freedom
46
of expression is under attack. Almost fifty percent of colleges and universities in America today have speech codes
prohibiting what one may say on the basis of content or
47
viewpoint. Disinviting, disrupting, shouting down, and
shutting down mainly conservative speakers by small but
46

As I write, the University of Michigan has set up a safe space to protect


LGBT students from being frightened by an approaching debate on the subject Does Feminism Have a Free Speech Problem? The student center said it
recognizes that the rhetoric of the speakers featured in this event is incredibly
harmful to many members of our campus community. The intent behind the
idea of an alternative space is simply to offer a relaxing, positive space for students to gather in community. Blake Neff, Michigan Creates Safe Space For
Students Afraid Of Debate On Feminism, The Daily Caller (Feb. 23, 2016),
http://dailycaller.com/2016/02/23/michigan-creates-safe-space-for-studentsafraid-of-debate-on-feminism/. Teddy bears are available on request. Im not
sure theres a safe space safe enough for those university students who believe
they see a KKK member wielding a whip when looking at a Catholic priest carrying a rosary. Douglas Ernst, 'Terrified' college students mistake priest for KKK
member, World Net Daily (Apr. 6, 2016),
http://www.wnd.com/2016/04/terrified-college-students-mistake-priest-forkkk-member/.
47

FIREFoundation for Individual Rights in Education, Speech Code Reports available at https://www.thefire.org/spotlight/reports/.

26

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

powerful leftist campus groups has become commonplace on


48
American campuses. Even comedy has suered as mainstream comedians such as Jerry Seinfeld, Chris Rock, and
John Cleese have signed o on playing to college audiences
due to the pained expressions on the faces of students raised
49
on a consistent diet of PC from kindergarten on.
Enter Jeremy Waldron, whose singular contribution
to freedom of expression has been to attack the free speech
doctrine that has emerged in America over the past one-hundred years in order to replace it with a speech suppressive
doctrine similar to many of those found in Europe today. In
The Harm in Hate Speech, Waldron levels his critical analytical
sights on the updated version of clear and present danger
found in Brandenburg. Waldrons issue with Brandenburgs incitement test is that it conceives the public order problem
strictly in terms of violence. But, he says, keeping the
peaceis only one dimension of public order. Public order
might also comprise societys interest in maintaining among
us a proper sense of one anothers social or legal status.
Hence, he favors group libel laws because they are set up to
vindicate public order, not just by pre-empting violence, but
by upholding against attack a shared sense of the basic ele-

48

Greg Lukianoff, New Report: The Push Against Campus Speakers Is Getting
More Intense, Huffington Post (May 30, 2014), http://www.huffingtonpost.com/greg-lukianoff/new-report-the-push-again_b_5417664.html.
49

Anna Silman, 10 famous comedians on how political correctness is killing comedy:


We are addicted to the rush of being offended, Salon (June 10, 2015),
http://www.salon.com/2015/06/10/10_famous_comedians_on_how_political_correctness_is_killing_comedy_we_are_addicted_to_the_rush_of_being_offended/.
27

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

ments of each persons status, dignity and reputation as a citizen or member of society in good standingparticularly
against attacks based upon the characteristics of some particular social group. (46-47) With this end in mind, The Harm
in Hate Speech seeks to resurrect from its Illinois graveyard
the long slumberingand now discrediteddoctrine of
group libel.
I begin in Chapter I by delineating in some depth
Waldrons overall argument. I do so to give the reader unfamiliar with his book the essentials of his argument along with
the connections he makes between its various parts. Chapter
II considers Waldrons use of the term vulnerable minorities to describe the targets of the speech he would suppress.
Here I argue that the minorities he would protect are nowhere near as helpless and as vulnerable as his argument
would suggest. I also argue that the list of groups he considers vulnerable has no single overarching measure that would
tie them together so the category itself appears arbitrarily
constructed and operationally troubling. Further, I suggest
that his overall argument is based on a double-standard and
has minority pecking-order problems he nowhere addresses.
In short, despite the title of his book, as a double-standard
suppressionist, his concern is not principally with the harm
in hate speech, nor, for that matter, with hate speech itself;
it is with the groups allegedly harmed. Like other doublestandard suppressionists, Waldrons concern is primarily, if
not solely, with the groups he wishes to protect.
Chapter III examines Waldrons reprise of Catharine
MacKinnons claim that pornography is a form of hate
speech against women, and his companion contention, derived from the structure of MacKinnons argument, that hate
speech is the cause of the vulnerability of specific minorities.
I argue that both arguments fail because neither pornography
28

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

nor hate speech does what MacKinnon or Waldron think,


and pornography and hate speech are less causal than epiphenomenal. I also assess the usefulness of Waldrons argument
that hate speech is akin to a slow-acting poison and find it
wanting both on its own terms and as an accounting of the
causes of previous or possible future social catastrophes.
Chapter IV considers Waldrons claim that private individualsnot just state ocialshave an obligation to refrain from publishing things that undermine the states attempt to assure vulnerable minorities the recognition respect they are allegedly entitled as beings possessed of dignity. I argue that while state ocials have such an obligation,
private individuals do not, at least not any obligation that is
legitimately legally enforceable. I conclude this section by
showing that Waldrons argument falls prey to what I call the
toleration is promotion fallacy and ends up treating private
individuals as if they were government ocials, thus, denying
the distinction essential to a liberal democracy between the
government and the governed. Chapter V expands on this
theme and asks whether any such partnership of state ocials and private individuals is even wise policy; in other
words, whether it is wise to count on the wisdom and virtue
of state ocials to bring about the well ordered society
that Waldron, following Rawls, says he desires.
Chapter VI examines Waldrons claim that a group libel statute need not be a threat to freedom of expression because speakers can always say in moderate terminology, and
without any serious loss of communicative impact, what they
say uncivilly. The idea is that what one says by threats,
abuse, and insults can be better said by more moderate
speech, and so as long as the law permits toned down versions of otherwise hateful forms of speech, freedom of expression is not seriously challenged. Chapter VII continues
29

IntroductionGroup Libel in America: Cases, Arguments, and Outcomes

in this vein, examining and criticizing Waldrons claim that


state intervention in the marketplace of ideas to censor racist
expression need not distort debates about race, and his companion contention that, in any case, the race debate is over.
Chapter VIII argues that Waldrons belief that lines
can be drawn distinguishing acceptable from unacceptable
expression without serious damage to freedom of expression
is mistaken, and rejects as well his contention that mistrust
of government is not a good reason to forego censoring hate
speech. Chapter IX asks whether Canadas human rights
statutes have been, as Waldrons argument suggests, responsibly administered. I argue they have not, as is amply
demonstrated in the proceedings against Mark Steyn and
Ezra Levant in 2008. Chapter X argues against Waldron
that, in practice if not in theory, the rationale for censoring
allegedly libelous statements about groups of people slides rather easily from protecting dignity to protecting against offense.
Chapter XI rejects Waldrons global claim that pornography and hate speech are world defining activities. I
argue that here, as elsewhere, Waldron is misled by Catharine MacKinnon into thinking that words as such have the
power to define and determine the worlds in which people
must live and work. By way of conclusion, I ask what someone other than Waldron might have said in Papas stead.

30

n
I
The Argument
How, specifically, do the messages sent by those signs
50
noted earlier defame Muslims? In the first place, Waldron
says, they undermine the public good of inclusiveness that
our society sponsors and that it is committed to by excluding Muslims and other vulnerable minorities from membership. It creates something like an environmental threat to
social peace, a sort of slow-acting poison, accumulating here
and there, word by word, so that eventually it becomes
harder and less natural for even the good-hearted members of
society to play their part in maintaining this public good. (4)
The second way hate speech harms its targets is by
undermining peoples dignity, in other words, their social
standing, the fundamentals of basic reputation that entitle
them to be treated as equals in the ordinary operations of society. The aim of such speech is to compromise the dignity
of those at whom it is targeted, both in their own eyes and in
the eyes of other members of society. (5)
Waldron distinguishes group libelwhich he thinks
must be suppressedfrom seditious libelwhich does not
because the state is strong enough today that it no longer
50

Above at p. 1.

Chapter IThe Argument

needs protection from the puny denunciations of the citizenry, whereas the same degree of power is not possessed by
vulnerable minorities. (30) Taking issue with Anthony
Lewis who, Waldron thinks, epitomizes the current American approach to hate speech by downplaying its harms, Waldron says that harms to vulnerable minorities caused by hate
speech outweigh any incidental damage to legitimate free expression interests: Can their lives be led, can their children
be brought up, can their hopes be maintained and their worst
fears dispelled, in a social environment polluted by these materials? (33)
In setting out his argument for a criminal libel statute
protecting vulnerable minorities from hate speech directed at them, Waldron attempts to narrow his argument in
two respects. First, by using the term hate in hate speech
he wants us to understand that his statute is not directed at
an emotion or an attitude of the mind as much as an eect
or projected outcome of the speech. His law would not forbid expressions of hatred or extreme dislike simply because
they are hateful or extreme. They are targeted only because
of the damage they are said to bring about in the social
world. Second, his use of the term speech is not generally
meant to include the spoken word. His main focus, he says, is
with public and published expressions rather than, say, verbal
outbursts. The latter can resonate long after the spoken
word has passed away but are not as enduring or dangerous as the published word. What Waldron wants criminalized are attacks on vulnerable minoritiesprinted, published, pasted up, or posted on the Internetexpressions

34

Chapter IThe Argument

that become a permanent or semipermanent part of the visible environment in which our lives, and the lives of vulnera51
ble minorities, have to be lived. (34, 35, 47)
Why criminal libel? Why not leave group defamation as a matter for civil law? One reason is because of the
danger it might present to public order, for keeping the
peace, avoiding brawls, and so on. But while he thinks the
public order argument is valid, it is not Waldrons main concern, at least not in its clearest and most obvious sense: the
danger of violence. Instead, his argument for criminalizing
group libel is that such statutes
are set up to vindicate public order, not just by
preempting violence, but by upholding against attack a shared sense of the basic elements of each
persons status, dignity, and reputation as a citizen or member of society in good standingparticularly against attacks predicated upon the characteristics of some particular social groupgrouplibel laws aim at protecting the basics of each persons reputation against attempts (for example) to
target all the members of a vulnerable racial or religious group with some imputation of terrible
criminalityan imputation which, if sustained on
51

However, as he later grants, uttered epithets are part of the target of my argument to the extent they convey messages of contempt or subordination
provided they are a permanently damaging and permanently disfiguringfeature of the environment in which people have to live their lives. Waldron at
118. However, it is not clear how, at the time of decision to permit or suppress
any epithet, one would be in any position to determine the required permanence.

35

Chapter IThe Argument

a broad front, would make it seem inappropriate


to continue according the elementary but important status of citizenship to the members of
52
the group in question. (46-47)
Generally, in the United States a civil libel against a
group is punishable only if the group is so small that it is easy
to identify each individual target.53 This is, at once, to protect the reputations of individually targeted group members,
and to allow a breathing space for expressions of opinion
about large social or political groups. Waldron, however,
takes issue with this latter claim at least as it applies to criminal libel. Following Catharine MacKinnon,54 he believes a
purely individualistic approach moves all this in the wrong
direction, with its perverse implication that the larger the
number of people defamed, the less likely it is that the leaflet
can be subject to any sort of regulation. (55) Criminal libel,
Waldron says, does not protect a persons individuals reputation; it protects the foundation of each persons reputation
insofar as it protects large numbers of people, thought of as
a group, against attacks on the fundamental reputation of all
persons of that kind. (52-53) Nevertheless, though the phrase
protecting people thought of as a group might lead one to
think the libel is against the group as such, Waldron is quick
52

He seems to be saying here that if an imputation of, say, terrorism were not
sustained on a broad front, the group impugned should not have their citizenship rights questioned. But how broad would that front have to be before
such a measure would become appropriate? For more on the breadth issue, see
Chapter IX.
53

Neiman-Marcus v. Lait, 13 F. R. D. 311 (1952).

54

Only Words, supra note 39.

36

Chapter IThe Argument

to point out that the libel is not against the group per se but
against its individual members. Thus, the expression may be
directed against a group (Muslims are terrorists) but the libel is against all members of the group, each of whom is damaged by the expression because it directly impacts the standing and social relations of them all. (55, 57)
So, like some other leftist commentators today,55
56
Waldron believes Beauharnais is (or, at least, should be)
good law, though his argument is directed mainly to showing
why it should be resurrected than in showing that it is still
good law. In any case, he does not believe the decision in
New York Times v. Su!ivan undercuts the reasoning of Beauharnais because the former dealt with the alleged criminal libel of a public ocial who, assuming the burdens of oce,
assumes also the rough and tumble criticism which attaches
to that oce,57 while the Negroes vilified by Beauharnais

55

For example, see Kenneth Lasson, Racial Defamation as Free Speech: Abusing
the First Amendment, 17 Colum. Hum. Rts. L. Rev. 11 (1985). See also Public Response to Racist Speech, supra note 43, at 2348, 2358; If He Hollers Let Him Go, supra note 42, at 463-64.
56

Beauharnais, 343 U. S.

57

376 U. S. 254 (1964). Since Sullivan held that libel was protected by the First
Amendment while Beauharnais, following Chaplinsky, 315 U. S., held it was not,
Sullivan overruled both of the latter on this point. Nevertheless, Waldron is
correct to say that Sullivans on-point reasoning applied only to public officials.
He goes too far when he says: That American Constitutional lawyers today
overwhelmingly believe that Sullivan in fact renders Beauharnais no longer
good law is an instance of carelessness that is really the product of nothing
more than scholarly wishful thinking. Waldron at 63. However, that part of

37

Chapter IThe Argument

were private individuals who never assumed that burden and,


therefore, should not be so subjected. (62)
Group libels may be composed (1) of factual claims
(Muslims are terrorists, 57); (2) opinions (Jews created the
Holocaust to gain sympathy);58 (3) expressions which attack
the normative basis of equal standing of targeted groups by
means of vicious characterizations that dehumanize their ascriptive characteristics and depict them as insects and animals; (4) expressions that denigrate the members of a group
by embodying slogans or instructions intended implicitly to
degrade (or signal the degradation of) those to whom they are
addressed (Muslims out or No Blacks Allowed.) (59)
Together, Waldron says, these are reputational attacks that target the dignity of minorities, by which he
means not so much the dignity inherent in the human person, but the dignity inherent in ones status as a member of
society in good standing. It is dignity as a social and legal
status, or the dignity of equal citizenship59 for all members
Sullivan which overruled Beauharnais claim that libel per se was altogether outside the protection of the first amendment can hardly be said to be scholarly
wishful thinking. Indeed, it is quite in line with the trajectory of First Amendment doctrine ever since.
58

R v Keegstra, [1990] 3 SCR 697 at 714, [1990] SCJ No 131 [Keegstra]. Hereinafter, all citations and references to Canadian jurisprudence will comply with
th
McGill Law Journal Canadian Guide to Uniform Legal Citation, 8 Edition.
59

Waldron never says what he means by equal citizenship, but the term is not
self-explanatory. As I read it, for Waldron, the term citizen is to be taken
loosely to apply to resident aliens and illegal immigrants as well as citizens. If so,
is he saying that the two former should be considered as having the exact same

38

Chapter IThe Argument

of all groups that needs to be maintained and vindicated by


society and the law. (59-61) Moreover, this obligation to protect the dignity of minorities does not apply only to state officials; it applies to private individuals as well: It is something in which we are all required to play a part. Nor is this
obligation purely moral; it is a legal obligation as well: we are
required in our public dealings with one another to refrain
from acting in a way which is calculated to undermine the
dignity of other people. This is the obligation that is being
enforced when we enact and administer laws against group libel. (60)
A. The Look of a Well-Ordered Society and the
Harm of Group Libel
In chapter four, Waldron turns to the question
whether a well-ordered society would permit depictions of
members of racial minorities characterizing them as bestial
or subhuman, or posters proclaiming that members of
these minorities are criminals, perverts, or terrorists, or leaflets saying that followers of a certain religion are threats to
decent people and that they should be deported or made to
disappear. Would a well-ordered society tolerate banners
or swastikas celebrating or excusing the genocidal campaigns
of the past; or signs indicating that the members of the minority in question are not welcome in certain neighborhoods
or in polite society generally, and flaming symbols intended
to intimidate them if they remain. Some would say that permitting such ugly expression is consistent with such a society
legal status as the latter? And if this is what he is saying, what is the value of citizenship, which is a status that historically has excluded alienslegal, illegal, or
paranormal? Given that it has, it is surprising that Waldron never addresses
what many think are important legal and political differences between citizens
and aliens.
39

Chapter IThe Argument

because it demonstrates that racists are allowed to speak


their mind like everyone else. Others, he says, will point to
the marketplace of ideas and say that such speech will be opposed by hundreds of other published tracts and banners
celebrating equality and arming the equal dignity of all
members of societylet a hundred flowers bloom, they say,
even the poisonous ones. Nor, say free speech advocates,
unless there is a racist reality that follows closely upon
those racist signs should anything be done about them except
by means of counter-speech. Waldron buys none of these arguments. Borrowing from John Rawls, he says that in a wellordered society everyone accepts, and knows that everyone
accepts, the very same principles of justice,60 and this means
the signs must go. (66-67, 69)
What should a well-ordered society sound like, asks
Waldron. Well, it shouldnt sound like the marching feet
61
and the chants of neo-Nazis in Skokie, or a Grand Wizards speech at a Ku Klux Klan rally, or the incessant antiTutsi radio broadcastsin Rwanda in 1994. (71) And it
shouldnt be analogous to what Catharine MacKinnon said
was the look, the sound, and the feel of a society saturated
with pornography in which women are everywhere open,
62
vulnerable, visible, violated. (73-74) Pornography is not a
60

Quoting John Rawls, Political Liberalism 35, 43-46 (Columbia University Press 1993). As Rodney Dangerfield said to Dr. Barbay, the economics professor in Back to School, a society of such agreement could only exist in Fantasyland. (MGM Studios, 1986)
61

Who says it should? Moreover, just as a matter of fact, the Nazis never did
march in Skokie so we dont know what that would sound like.
62

Referencing Only Words, supra note 39. Notice, Waldron never says what a
well-ordered society should sound like.
40

Chapter IThe Argument

mere idea; it is world-defining imagery, in which


womena! womenmust lead their vulnerable lives in
fear, silence, and isolation:
similarly, racist or religious defamation is not just
an idea contributed to a debate. In its published,
posted, or pasted-up form, hate speech can become a world-defining activity, and those who
promulgate it know very wellthis is part of their
intentionthat the visible world they create is a
much harder world for the targets of their hatred
to live in. (74)
Hate speech creates an ugly social and political aesthetic, but
it is not today the creation of state authorities; it is largely
the preserve of private individuals: in any discussion of hate
speech, it is speech and publication by private persons, not
by the state, that we are concerned about. (75) [T]he question is whether the law should be indierent to its impact on
what our society looks like and what it is for the members of
certain groups to have to try and make a life in a society that
looks like that. (77)
Must well-ordered societies have hate speech laws?
Not if everyone agrees to live by the rule of equal concern
and respect for the well-being of others. But such is the stu
of dreams and fantasies, at least in the here and now. Given
that Western society betrays the look, sound, and feel of an
environment flooded with hate speech, it cannot, by that
very fact, be well-ordered: a society cannot become well-ordered unless the bigots and racists give up their mission and
accept the basic principles of justice and equal respect that

41

Chapter IThe Argument

were formerly anathema to them.63 And, on Waldrons view,


they will not do so voluntarily, that is, without the expressive
and coercive functions of law: Societies do not become wellordered by magic. (74. 77-78, 81)
The look of a societyin this case whether the society contains posters, flyers, etc., displayed publiclymatters
as to whether it is well-ordered because their existence or
non-existence determines whether minorities will feel secure
and assured that others in the society accept them as equal
citizens. The look of the society determines how they are
likely to be treated, for example, by the hundreds or thousands of strangers they encounter or are exposed to in everyday life. (82) Because not everyone accepts, and knows that
not everyone else accepts, the basic principles of justice or
equal citizenship, the United States is not a well-ordered society; hence, says Waldron, it lacks, for vulnerable minorities,
64
the appearances of security and assurance. Again, it is not
63

Following Rawls, Waldron also says that Religions that demand the suppression of other religions, that insist upon constitutional establishment, or that demand the adoption of a certain comprehensive conception of the good by the
whole society are inconsistent with a well-ordered society. Unless such religions have died out Rawls says, the society cannot be well-ordered. Islam is
certainly an example of an intolerant religion, and if what he says about the
bigots and the racists, namely, that they will not die out on their own but must
be coerced out of existence, then, one would think, the same would be true of
Islamviz., that Islam has no place in a well-ordered society and must be prohibited by law. This is obviously not Waldrons conclusion, but it is not clear
why the bigots and racists argument wouldnt apply?
64

Is it all a matter of appearance and perception? Or does reality enter into the
picture as well? If reality does enter into the picture, then it seems clear that no

42

Chapter IThe Argument

enough that state ocials in liberal-democratic societies are


obligated to treat all of its members with equal concern and
respect, private individuals must do so as well, if such societies are to be considered well-ordered.
A well-ordered society in the real world is not one in
which everyone agrees on every detail of a specific theory of
justice, but it is one in which they presumably agree that all
are equally human, and have the dignity of humanity, that all
society ever was, nor likely ever will be, well-ordered as Waldron defines it.
Nor, one would think, should it be, given the amount of coercion necessary to
bring it to fruition. The very idea that the ideal society is one in which everyone
agrees about everything pertaining to its core values is dreamlike in concept
and necessarily, and given the size of countries today as well as the human penchant for disagreeableness, likely, totalitarian in practice. In any event, in such a
situation there would be no need either for democratic politics or for freedom
of expression which together exist to enable people who have different experiences and different views to inquire as to what should be our values, principles,
and policies. Liberal democratic politics requires not that we decide these matters once and for all, but that we do not block the road to further inquiry. See
Chapter VII. Moreover, on another note, appearance and perception are also
obviously a function of the persons doing the looking; their mental sets, expectations, previous experiences, hopes, fears, ideologies, etc. It seems rather obvious, for example, that those who look long enough for racism, sexism, homophobia, etc., will eventually find what they are looking for and not necessarily
because what they are searching for is real. See, e.g., how one academic can find
racism in gardening. Alasdair Glennie, Gardeners Question Time? Its so racist:
Sociologist rails at references to non-native plants, The Daily Mail (Aug. 4,
2014), http://www.dailymail.co.uk/news/article-2716106/Gardeners-QuestionTime-caught-race-row.html.

43

Chapter IThe Argument

have an elementary entitlement to justice, and that all deserve protection from the most egregious forms of violence,
exclusion, indignity, and subordination. On this measure, it
would seem obvious that no society in the real world has
ever been well-ordered, and it seems very likely that unless
human beings change their natures rather dramatically, no
such society could ever exist.65 Nevertheless, Waldron asks
us to imagine a society on the way to becoming well-ordered, and to imagine ways in which these basic assurances
are given. Minorities are secure when they can rely on a
widespread acceptance on the part of fellow members of
the fundamentals of justiceIn a well-ordered society, where
people are visibly impressed by signs of one anothers commitment to justice, everyone can enjoy a certain assurance as
they go about their daily business. And when they leave
home in the morning, they can count on not being discriminated against or humiliated or terrorized. (82-84)66

65

C. Edwin Baker suggests that [a] well-ordered Potemkin Village is probably the best example of Waldrons political aesthetics but it guarantees nothing about what the society is like other than, if coercive laws were necessary to
create the appearance, that the society is not free. Hate Speech, in The Content and Context of Hate Speech: Rethinking Regulation and Responses 62 (Michael Herz & Peter Molnar eds., 2012) [hereinafter Hate
Speech].
66

Here Waldron quotes the pluralitys claims in Keegstra, supra note 58, at 74647, that the derision, hostility and abuse encouraged by hate propagandahave a severely negative impact on the individuals sense of self-worth
and acceptance which, in turn, may lead them to avoid activities which bring
them into contact with non-group members or [adopt] attitudes and postures
directed towards blending in with the majority.

44

Chapter IThe Argument

B. The Requirement of Recognition Respect


By according respect, Waldron says he does not
mean that individuals are required to accord equal respect
67
to all their fellow citizens. Following Stephen Darwall, he
distinguishes between appraisal respect (our assessment of
persons in terms of their character, behavior, and accomplishments) and recognition respect (ones entitlement to
have other persons take seriously and weigh appropriately
the fact that they are persons in deliberating about what to
do.) The latter, Waldron says is fundamental to the dignity
of persons and which is invariant, even governing how they
are to be treated when they are guilty of terrible crimes, and
then says that it is recognition respect that private individuals are obligated to accord all others. All of us may reasonably be required to play our part in societys accordance of
recognition respect to others. (86-87)
To accord such respect and provide the assurance, no
one has to say Muslims Welcome or African Americans Allowed; nevertheless, the assurance must be implicit in
the sense that the underlying status of each person as a citizen in good standing goes without saying. However, the fact
that the assurance must be implicit still raises problems:
Suppose, Waldron says, after a 9/11-type attack,68 hateful
67

Two Kinds of Respect, Ethics 88, 36 (1977).

68

Waldrons phrase a 9/11 type attack suggests, to me, that he does not think
that the real 9/11 attack was in any way devastating to the collective American
psyche such that it might have been reasonable to be suspicious of all Muslims.
Many of the Muslim terrorists who hijacked the planes were living undercover
in the United States for a relatively long period of time. That the hijackers
blended in with ordinary non-Muslim Americans and went unnoticed meant,

45

Chapter IThe Argument

signs go up intimating69 that Muslims should be accosted as


terrorists, and suddenly taxicabs in New York City start
sporting American-flag decals. One could read the presence
of those flags, he says, as a sign not of pride or patriotism,
but of fearthat cabs without them will have their Muslim
drivers beaten up. This shows that the signs are not simply
the views of racists letting o steam, but

to many Americans, that it was reasonable to suspect all Muslims. Nor did it
help matters when directly after the attacks Muslims were seen dancing in the
streets in Palestine and elsewhere, and many American Muslims were eerily silent as to what they thought about the attacks. Why might it be reasonable to
suspect all Muslims? Because, given that all of the hijackers were Muslim terrorists living undercover, a person may have no clear idea which Muslims might
be terrorists in hiding and which might not. As Hobbes put the point in another context: For though the wicked were fewer than the righteous, yet because we cannot distinguish them, there is a necessity of suspecting, heeding,
anticipating, subjugating, self-defending, ever incident to the most honest and
fairest conditioned. Thomas Hobbes, The English Works of Thomas
Hobbes of Malmesbury vol II xvi (Sir William Molesworth ed., 1841).
Hobbes advice is followed by mothers every time they caution their children
not to talk to or go with strangers.
69

I assume that the term intimating is not to be taken to mean implying or


hinting for then there would inevitably be vagueness considerations that
would enter into any defense and complicate the example. Ill assume that Waldron meant stating rather than intimating even though he wrote the latter.
The change gives his hypothetical more bite. However, see Waldron at 118
where he says under certain conditions speech that intimates is part of the
target of my argument.

46

Chapter IThe Argument

specifically target the social sense of assurance on


which members of vulnerable minorities rely.
Their point is to negate the implicit assurance
that a society oers to the members of vulnerable
groupsthat they are accepted in society, as a
matter of course, along with everyone else; they
aim to undermine this assurance, call it into question, and taint it with visible expressions of ha70
tred, exclusion and contempt. (86-88)
The point, as I read it, is this: the fact that the government is obligated to provide physical assurances of protection and must treat all individuals in society with equal
concern and respect is not enough. It must also get rid of the
signs and possibly even prevent cabbies from attaching
American flag decals to their cabs because that might expose
Muslim cabbies, who choose not to conform, to violence. In
addition, private individuals are obligated to support the government in its censorial project or at least not to actively oppose it.
The bigoted displays at issue are not just autonomous self-expression. They are not simply the views of racists
letting o steam. As Waldron sees it, they
70

One could read those signs and decals the way Waldron says but why should
one? Why assume that their presence was a sign of fear rather than pride or
patriotism, or that their absence would make other Muslim cabbies targets for
violence? Why might they not, on the contrary, signify their hostility to Jihadism? Absent any empirical evidence to the contrary (and Waldron can offer
no such evidence to support his hypotheticals outcome), why assume the
worst? Why assume that Muslims who see these signs automatically cower in
fear lest they, perhaps, be beaten, overrun, and murdered by a hoard of, presumably, clean-cut, redneck, right-wing, Christian businessmen?
47

Chapter IThe Argument

specifically target the social sense of assurance on


which members of vulnerable minorities rely.
Their point is to negate the implicit assurance
that a society oers to members of vulnerable
groupsthat they are accepted in society, as a
matter of course, along with everyone else; they
aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion, and contempt. (88)
C. Contesting Rival Goods
As Waldron sees it, hate speakers, as well as those like
him, who would suppress their speech, are contesting rival
goods. Suppressionists believe that by banning hate speech
they are promoting the public goods of assurance, dignity,
and equal standing for all, while racists, etc., want to undermine these goods and replace them with their own racist and
hateful conceptions of the public good.71 Hate speech laws
not only aspire to protect the public good of dignity-based
assurance, but also to block the construction of this rival
public good that the racists and Islamophobes are seeking to
construct among themselves. In response to critics who say
such laws only drive hate underground, Waldron says that
is the whole point: we want to convey the sense that the bigots are isolated, embittered individuals, rather than permit
them to contact and coordinate with one another in the enterprise of undermining the assurance that is provided in the
71

Waldrons zero-sum, either-or, option rules out a third option, namely, permitting the speech and upholding the public goods he identifies. He assumes
that simply to permit the signs is to promote the hate speakers agenda as well
as lose the war. For criticism of this assumption, see Chapter IV, Section C.

48

Chapter IThe Argument

name of societys most fundamental principles.72 True there


are costs to have ideas circulating where they cannot be publicly challenged. However, while we should be able to speak
out in favor of our most fundamental commitments, actually
presenting them as propositions up for grabs in a debateas
opposed to settled features of the social environment to
which we are visibly and pervasively committedis exactly
what the speech in question aims for. (95-96) In other
72

It is almost as if Waldron has never heard of Samizdat, or, for that matter the
Internet, both of which allowedand still allowpeople to publish material
that governments do not wish published; Soviet and East European governments representing the former group of suppressionists and the Chinese,
North Korean and Cuban governments today representing the latter. Moreover, even if successful, driving something underground might well accomplish
the reverse of what suppressionists wish. People may begin to wonder whether
what is being suppressed is something they might want to see and wonder why
their government is trying to keep it from them. They might become infuriated
and more disposed to carry out violent acts. In this vein, see Timothy Garton
Ash on people leading double lives in Eastern Europe under communism, when
people would say one thing in public and another in private where what is said
in private is what they really think. The Uses of Adversity: Essays on the
Fate of Central Europe (Random House 1989). Moreover, as James Weinstein also notes, what suppressionists do not generally consider is the extent to
which the public expression of explicit racist ideas, as opposed to private racist
sentiments passed from parent to child or subtle racist images prevalent in the
popular media, contributes to the perpetuation of racist beliefs. Private methods of expression may well be a much more effective way to communicate such
beliefs than public expressions largely because they are beyond the laws
reach. Hate Speech, Pornography, and the Radical Attack on Free
Speech Doctrine 129-30 (Westview Press 1999).

49

Chapter IThe Argument

words, rather than publicly engage the message of hate


speech with speech of our own, it is preferable to censor it
outright.73
Waldrons basic point here is similar to one that Deborah Lipstadt74 made about debating those who would deny
the Holocaust: doing so just elevates them to equal status
and gives them a platform they would otherwise be denied.
Since our public good under this regime of censorship is
neither morally or politically debatable, suppressing theirs
is no moral or political loss. However, as I shall later argue, if
Waldrons suppressionist argument was implemented, it
would cast an expansive pall over so much social, political,
and cultural expression that it would render current complaints about political correctness trivial by comparison.
Arguably, it could produce a near total shutdown of debate
on a multitude of controversial issues.
D. Dignity and Offense
In chapter five, Waldron says that when he speaks of
dignity he is speaking not of honor or esteem but of a persons basic entitlement to be treated as a member of society
in good standing. It is this, he says, that hate speech attacks, and it is dignity in this sense that the laws suppressing hate speech aim to protect. Protecting dignity is, thus,
protecting a persons standing in the community, and his
73

The point is to stop these messages from taking a publicly visible or audible
formto stop them from becoming part of the landscape, part of the evident
stock of a peoples ideas circulating in a society and looming over the environment in which people live their lives. Waldron at 149.
74

Denying the Holocaust: The Growing Assault on Truth and


Memory (Penguin Books 1993).
50

Chapter IThe Argument

standing in the community is aected by the esteem in which


his relevant ascriptive group is held. Attacks against his
group identity are, therefore, also attacks on his dignity as a
member of that group. The dignitarian harm to him is indirect whenever his group is under attack, but it is the dignity
of the individualnot the dignity of the groupthat ultimately concerns him. Ones dignity is, thus, a status sustained by law in society in the form of a public good. (10506) So an attack on a persons ascriptive group is not only an
injury to him; it is also an injury to society in the form of an
attack on one of its public goods.
The harm at issue is not one of oense. The harm is
to the objective or social aspects of a persons standing in
society not to the subjective aspects of feelings, including
hurt, shock, and anger. Waldron says the latter may be an
eect of the former, but it is not the harm he is targeting.
Protecting people from assaults on their dignity indirectly
protects their feelings, but it does so only because it protects
them from a social realitya radical denigration of status
and an undermining of assurancewhichnaturally impacts
upon their feelings. (108) Hurt feelings are definitive of offense but not of indignity. Waldron compares the harm to a
citizens dignity to the contempt shown to a judge; such contempt lowers the esteem in which he is held and diminishes
the respect accorded to him, preventing him from doing his
job. Similarly, Waldron says, [a] democratic society cannot
work, socially or politically, unless its members are respected
in their character as equals, and accorded the authority associated with their vote and their basic rights. The harm is to
ones status not to ones feelings. Thus, he concludes, It is
not the function of racial or religious hatred laws to protect
against hurt feelings. (109-111)
Nevertheless, he says, the relationship between indignity and oense is complex and is a complicating factor in
51

Chapter IThe Argument

drawing up and applying a group defamation statute. First, an


attack on ones dignity will normally be associated with
grave fear and apprehension of what will become of one
and ones family and how they will be forced to live their lives
under the hatemongers prospective regime. This close association will permit critics of hate speech laws to saywith
studied obtuseness that such laws are there simply to protect against hurt feelings and, thus, to dismiss them. Second,
Waldron notes that the term oense can be ambiguous as
it can refer to hurt feelings, but it can also refer to an offense against a persons standing, quite apart from the distress that that oense occasions, again, permitting critics to
say they merely protect against hurt feelings. Finally, there is
complexity in the dierent psychological reactions an attack
on ones dignity may arouse ranging from outrage, insult, offense, to incredulity, humiliation, rage, and even shame,
which may make it dicult or futile and insensitive to
pick out those feelings which are appropriate for legislative concern and those which are not, or from those that
accompany other phenomena that are. Given these complications, critics of such laws will ask how we are supposed to
make this distinction in real life cases. Waldrons solution to
the dilemma is to identify categories and modes of expression that experience indicates are likely to have an impact on
the dignity of members of vulnerable minorities. This identification, he believes, avoids the problem of determining
lawfulness by means of a case-by-case analysis of the emotions of particular victims. (112-113)
Despite this identification, Waldron warns that legislators must be vigilant that group dignity and group reputationand not oenseare the real reasons for group protection. Disengaging the mix of emotions that follow from attacks on dignity and social standing such as cross-burning or
the daubing of swastikas, and those that follow from oensive attacks on religion such as Andreas Serranos Piss
52

Chapter IThe Argument

Christ is not an easy matter, and opponents of hate speech


laws can be expected to be exasperated by their subtlety.
Still, Waldron is undaunted by the complexity of drawing
lines and believes it can be done by balancing dierent
goods and essaying dicult value judgments. The task
should not be abandoned, he says, just because opponents
perceive some advantage in doing so for their position in the
hate speech debate. (111-116)75
Next Waldron turns to some line-drawing problems.
While his suppressionist argument is primarily directed
against racist, etc., publications, he also thinks attempts to
prohibit group-based Islamophobic, homophobic, or sexist
verbal epithets are justified as well. Still, he thinks, the matter
is complicated; sometimes verbal epithets may echo and linger in such a way as to become a lasting part of the environment. If so, we may well want to extend the protections we
give against verbal abuses on our campuses and in our workplaces to the level of society as a whole. Moreover, he says,
the shouted epithet seldom occurs in isolation, and to the
extent it is part of a larger message, it is also targeted by
Waldrons argument if it is capable of becoming a permanently damaging and permanently disfiguringfeature of the
environment. (116-118)
Is it easier to draw the line between assaults causing
oense and assaults on dignity when religion is targeted by
hate speech than when race is? The main problem about religious hate speech, some might say, is that it is dicult to distinguish attacks on a religion from attacks on its devotees.
Waldron disagrees and says the line is clear: in every aspect
75

Apparently, winning the hate speech debate is the reason for opposing hate
speech laws.
53

Chapter IThe Argument

of society, he says, we distinguish between the respect accorded to a citizen and the disagreement we might have concerning his or her social and political positions. To prove
this, he cites his belief that while the views of many members of the Republican Tea Party right are preposterous and
(if they ever were put into practice) socially dangerous;76 Tea
Party members are nevertheless entitled to stand for oce,
to vote, and to have their votes counted. Meanwhile, attacking or ridiculing their beliefs is business-as-usual, but it
would be inconsistent with the respect demanded by their
status as citizens to publish a claim, for example, that Tea
Party politicians cannot be trusted with public funds or that
they are dishonest. Its a line we draw all the time in democratic politics, and there seems no reason why it should not
be drawn also in the context of religious life. (120-121)77

76

Waldron presents no evidence for this flat assertion. For an argument that
Tea Party members have higher education and income levels than the general
population and may also have slightly higher levels of political knowledge as
well, see Ilya Somin, The Tea Party Movement and Popular Constitutionalism, 105
Nw. U. L. Rev. (Colloquy) 300, 306 (2011) available at http://ssrn.com/abstract=1853645. For an argument that they have a superior grasp of science than
those politicos who do not identify as Tea Party members, see Tal Kopan, Eureka! Tea partiers know science, Politico (Oct. 17, 2013), http://www.politico.com/story/2013/10/tea-party-science-98488.html; and Dan Kahan, Some
data on education, religiosity, ideology, and science comprehension, The Cultural
Cognition Project at Yale Law School (Oct. 15, 2013), http://www.culturalcognition.net/blog/2013/10/15/some-data-on-education-religiosity-ideology-and-science-comp.html.
77

On what principled basis is it possible to argue that ridiculing the beliefs of


Tea Party members as preposterous and socially dangerous is not an attack

54

Chapter IThe Argument

Thus, attacks on religion per se, or on particular religions,


their religious doctrines, leaders, symbols, or icons are not legitimate targets of a group libel statute but attacks on members of religions are, because these are attacks on their civic
dignity.
In light of the above, Waldron says the Danish cartoons that in 2005 portrayed Mohammed in an unflattering
light and sparked worldwide riots by Muslimsin which over
200 people were killed and diplomatic missions and churches
trashedwere a critique of Islam rather than a libel on
Muslims because in their twisted way they contributed to
a debate on the relationship between Mohammeds teachings and the more violent aspects of modern jihadism.
However, he says, if the cartoons were calculated to suggest
that most followers of Islam support political and religious
violence, then they would come close to a libel on Muslims. Thus, if the language accompanying the cartoon panels
sought to impute to Danish Muslims hostility to the liberal
institutions under which they lived; in other words [if] it juxtaposed the bomb cartoon with text stating, in eect, Some
on their dignity, but saying that their politicians are dishonest and untrustworthy is such an attack? I see none. Neither does Brian Leiter: If I can ridicule the Tea Party folks as the damn fools they are, we are leftwith the puzzle
how that could not be seen as undermining their sense of assurance that their
dignity will be respected in public life? And if I am allowed to say that their
views are preposterous, why am I not allowed to say that they should not be allowed to hold public office? Notre Dame Philosophical Reviews (book
review, reviewing Jeremy Waldron, The Harm in Hate Speech (2012)) at
http://ndpr.nd.edu/news/32077-the-harm-in-hate-speech/. Moreover, given
that the alleged calumny is directed against Tea Party members who are public
officials, as long as the speech is not a product of actual malice, it would obviously be protected under the Sullivan rule.
55

Chapter IThe Argument

Muslims reject modern secular society that might make it a


judgment call whether this was an attack on Danish Muslims as well as an attack on Muhammad, thus, rendering it a
group libel. (125-26) Close calls like this, he says, should error
on the liberal side. Nevertheless, he says he wants to make
it clear that neither the newspapers actions[n]or the actions of the publications in the West that also reproduced
the cartoonswere admirable.
In my view there was something foul in the selfrighteousness with which Western liberals clamored for the publication and republication of the
Danish cartoons in country after country and forum after forum. Often, the best they could say
for this was that they were upholding their right
to publish them. But a right does not give a person a reason to exercise the right one way or another, nor should it insulate him from moral criticism. My view is that the exercise of this right
was unnecessary and oensive. (125-26, notes
78
omitted)
Another problem that arises in the attempt to distinguish expression which attacks dignity from that which gives
oense is that people often identify their persons with the
ideas and beliefs they hold, and so, take any criticism of the
latter as an attack on their very identity as human beings.
This makes the practical work of distinguishing giving offense from attacking ones dignity dicult: By saying some
issue is crucial to my identity, I present my view of that issue
78

Waldron must either have had an exceptionally small, or an excessively timid,


collection of sparring partners if all they could come up to counter his moral
preening was what he said they did. See Chapter X.

56

Chapter IThe Argument

as politically non-negotiable: I imply that accommodating my


interests, needs, and preferences in this matter is crucial to
respecting me. Identifying the person with his ideas and beliefs threatens to make constructive discussion and debate
impossible and contributes a lot to a muddying of the waters
in the hate speech debate. (133, 136)79
Waldron does not agree with critics who say the term
dignity is too vague to be of much use in the hate speech
debate partly because it is often just a mushy form of happy
talk which sounds good but signifies little more than that
the speaker is on the side of the angels, and partly because
there are too many dierent theoretical uses for it. He thinks
the way he uses the term has value, but if not, one should focus on his overall argument about reputation, status, standing in society, and the damage that hate speech may do to it.
(137-139)
Dignity enters the picture on the free speech side of
the hate speech debate as well as in speech suppressive statutes which censor speakers, treating them as children and
telling them what they can and cannot say. Free speech is an
important correlate of dignity, and laws that abridge it attack
that dignity. Doesnt this double-sidedness mean that the
79

If I identify my self with my beliefs, then criticisms of them will seem like an
assault on me. Waldron at 135. Not only religion is implicated in this dilemma, for the same can be said of sexual orientation, race as well as any other
category of person that links their identity to the groups to which he, she, or
ze belongs. To take just one example, the very identities of many homosexuals are inextricably bound to their specific sexual practices. They are what
make them homosexuals. An attack on their sexual practices is, thus, also an attack on who they think they are.

57

Chapter IThe Argument

concept is indeterminate? Not according to Waldron who


believes that the interests of the speaker must be balanced
80
against the interests of vulnerable minorities, and also
that what is expressed in vulgar language can also be expressed in what he terms dignitarian language. And to
those who still worry about the inherent vagueness of the
term dignity saying that it is introducing into law a concept
that is very slippery to handle, Waldron says, Get used to
it. Just as American government lawyers had to adapt their
interpretations of cruel and unusual punishments to include a prohibition on inhuman and degrading treatment of
detainees, so we now have to be alertand aware that the
world is alertto the dehumanizing implications of some
practices that we may not have thought much about. (139141)81
Dignity, for Waldron is a status term, and his use
of it is to show the importance of paying attention to how a
persons status as a member of society in good standing is affirmed and sustained. This concern is more diuse than
concerns about their safety or negative liberty because (1) it
looks at how things are for the person in question in all the
myriad interactions in social life; (2) it focuses on the ways
80

Apparently, Waldron does not believe that a speakers audience has any free
speech rights. In any case, nothing he says indicates he thinks they have any
such auditory rights, or, for that matter, any dignity interests that may be tied
up with them.
81

Whether or not the treatment of the Guantanamo detainees is now, or ever


was, properly described as inhuman and degrading is debatable as is the utility
of importing such vague, subjective, and elastic concepts into Eighth Amendment jurisprudence. Such, for example, is the view of Marc A. Thiessen:
Courting Disaster: How the CIA Kept America Safe and How Barack
Obama is Inviting the Next Attack (Regnery 2010).
58

Chapter IThe Argument

status is armed and upheldand the ways in which it


might be endangeredas one person among thousands or
millions of others; and (3) it focuses as well on the ways in
which this status might be endangered on the basis of what
hatemongers make of ascriptive group characteristics like
race or religion. Waldron is aware that many liberals are uneasy with the collectivist language involved in the interplay
here between individuals, groups, mass characteristics, and
mass provision, and he is aware that the importation of dignity into our moral and political lexicon might be disconcerting, but he concludes, nevertheless, that the end-result
of so doing is salutary. (142)
E. The Legitimate Rights of Speakers
In terms of the method used to determine whether
any instance of speech can be censored, Waldron prefers ad
hoc balancing to a priori categorical exclusions. The first balances the free speech interest in any individual expressive instance against the various state or other interests that are
said to be aected by the speech in question. In the second,
certain classes of speech are excluded a priori from the category of protected expression so no ad hoc balancing ever
takes place. With the proviso that the scale should be tipped
in favor of free expression, Waldron favors ad hoc balancing
because of its candor in assuming that the values on each
side of the balance are important and worth preserving.
However, the balancing eort will only be successful if those
doing the balancing put the best arguments forward on both
sides of the debate. This means that both civil libertarians
and proponents of censorship must address the strongest arguments on the other side of their positions and must do so
candidly. The former must examine and assess the evidence
of harm seriously, and the latter must face up honestly to
the moral costs of their proposals. (145-148) That said, Waldron turns to the rights of racist or Islamophobic speakers.
59

Chapter IThe Argument

Waldron notes that in countries that have the type of


speech suppressive statutes he recommends, racists and Islamophobes are prevented from expressing themselves in the
way they prefer; for example, in leaflets libeling Muslims as
terrorists or their public portrayals of people of other races
as apes or gibbons. Of course, he says, while they may not
publish such statements, they are not being silenced because
they can restate their racism or their contempt for Islam in
82
83
more moderate terms, less calculated to stir up hatred.
Trimming ones sails in this fashion will not satisfy speakers
who identify strongly with the actual words used (in other
words, those to whom it matters that they express racist
ideas in hateful form) because, for them, such wording discloses who they are.
Group defamation statutes are based on the content
of the expression, but it is because of their eects that de84
famatory expressions are punishable. Commentators like
82

[W]e want to catch only hate speech that is expressed in an abusive, insulting, or threatening way. Waldron at 151.
83

[H]ate speech legislation[sic] is forbidden where it is, because of the effect


of its content in helping to undermine the assurance that members of vulnerable groups are supposed to be able to draw from the public affirmation of their
dignity. Waldron at 151. I assume the term legislation is here by mistake.
84

Taking issue with the content-context distinction in U. S. free speech doctrine, Waldron renders Holmes famous example in Schenck as the shouting
of Fire! in a crowded theater. Waldron at 151. Of course, Holmes added the
word falsely which Waldron omits but which makes all the difference, for
there would be no culpability if the shout of fire was factual rather than fictitious and deceitful. Moreover, the falsity of the shout is neither part of the content of the expression nor its context, only the grounds for its culpability; for

60

Chapter IThe Argument

Georey Stone think such statutes are paternalistic in that


they indicate that the government does not trust its citizens
to make wise decisions if they are exposed to the expression, and Waldron agrees. Nevertheless, he thinks such
statutes are necessary particularly in the context of a society
that has a history of racism or intercommunal conflict because: Nobody knows when that heritage of hate and conflict is really over. Old fears die hard; old nightmares are
never entirely put to rest; old antipathies can sometimes be
awoken. (153)85 In any case, such statutes are there to modify
public debate, to purify it, and to make it less coarse, less intimidating, and less demoralizing to the members of vulnerable groups, (154-55) and these purposes trump any concerns
about paternalism.
Waldron, of course, does not believe that the free
marketplace of ideas if it is left to its own devices will gener-

whether the shout were of fact or fiction, the effect (panic) would be the same.
Because it would be, the distinction Waldron draws between content and noncontent based statutes is not aided by the Holmes example. It is, therefore, not
because of the effect of the expression that the shout of fire may be criminalized; it is because it is false and deceitful in dangerous circumstances. The same
is not true of group defamation statutes (Waldrons included) which criminalize expression without regard to any context of imminent danger.
85

If the worry is that one can never be sure the heritage of hate and conflict is
really over, then one can also never be rid of hate speech laws because there is
no existing society which does not have such a past. Thus, even the absolutely,
perfectly, immaculately well-vacuumed society will still need group libel laws
to sanitize the language.

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Chapter IThe Argument

ate the acceptance of truth and foster the eventual emergence of attitudes of mutual respect. (155)86 In fact, he
thinks that none of the content-neutral non-state interventionist remedies oered by American commentators are sufficient to deal with the problem of hate speech; in the end,
he says, theyre nothing more than platitudes.
Nor are the harms created by suppressing hate speech
greater and more important than those associated with its
tolerance. If one takes the dignitary harms caused by hate
speech seriously, then the irritation and annoyance of having to replace a threatening, abusive, and insulting form of
racist speech with some more moderate expression of ones
social antipathies would seem quite milda slight loss of
freedom is justified by the prospect of preventing real harm
to other people. Waldron sees two possible objections to
this thesis. One would be that the damage done to a speaker
by hate speech regulation is immediate, whereas the damage
accruing from hate speech is more a matter of long-term causality (and is, in any case, controversial). The other is oered
by C. Edwin Baker, namely, that free speech has a special
kind of importance for individuals that at least matches the dignitary harm that hate speech regulations try to prevent.
(160)87

86

The fact that only Milton was so nave to believe truth would win out in any
struggle with falsity seems to have escaped Waldron. Holmes, certainly, betrayed no such superstition.
87

Of the two possibilities he suggests, Waldron considers only the second,


drawing on a variety of Bakers works in a discussion of what he calls Bakers
autonomy argument. Human Liberty and Freedom of Speech (Oxford
University Press 1989). See Harm Liberty and Freedom of Speech, 70 S. Cal. L.

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Chapter IThe Argument

Bakers argument is that there is something special


about speech, namely the element of autonomous self-disclosure, and that forcing people to abandon their autonomous
convictionsis like forcing them to take o their skin. In
reply, Waldron says that speech is not as pure a means of
self-disclosure as Baker takes it to be. Hate speech does not
merely express, present, or disclose who one is; it is a speech
act, a performative, which is not purely expressive or
presentational, but which is also designed to wound, terrify,
discourage, and dismay. Such harms are not only caused by
speech, they are also constituted by speech. Hate speakers
aim to dispel the sense of assurance we oer to minorities
that they are equals in the community, and this is more than
pure speech; it is an act as well. The mere fact that they are
there, disclosing publicly by speech the racists that they are
is precisely what discredits the communitys generalized assurance to its most vulnerable members. For while the community says, In our eyes, you are unreservedly welcome here,
same as anyone else, the hate speech says, Hell no! Not
herenot in these eyes, youre not. Be unsure of acceptance;
be afraid; be ready for hateful exclusion. Thus, says Waldron, The harm is the dispelling of assurance, and the dispelling of assurance is the speech actit is what the speaker
is doing in his self-disclosure, as far as he is capable. (163,
166-67, emphases in original)
Moreover, while isolated racists sit smoldering in
their dens, lamenting the fact that their hateful views are not
widely shared, out in public the hate speaker stands as a beaRev. 979 (1977). See also C. Edwin Baker, Autonomy and Hate Speech, in Extreme Speech and Democracy, 139-67 (Ivan Hare & James Weinstein, eds.,
(2009)) and C. Edwin Baker, Autonomy and Informational Privacy, or Gossip: The
Central Meaning of the First Amendment, 21 Soc. Phil. & Poly 224 (2004).
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Chapter IThe Argument

con of light for them. His intentions are to construct an alternative public good, and to build solidarity among likeminded people. Cheer up! he says, and by saying this, he
not only is disclosing who he is, he is also by the mere fact of
his public presence signaling to others that they are not alone
in their antagonisms. (167)
Again, Waldrons concern with public order is not
with the possibility of a hate speaker inciting a mob to act;
nor, apparently, is it about developing racists; it is about the
undermining of a public good, and this is constituted by the
speech act itself, irrespective of whether other racists are influenced by it.88
Waldron has some fun misinterpreting Bakers claim
that words do not cause reactions without the aid of mental
intermediation, and that [t]he hearer must determine a response.89 Bakers point is that dierent minority group
members will react to hate speech in dierent ways ranging
from demoralization to defiance. Waldron agrees but says
that minority group members should not be forced
to laboriously conjure up the courage to go out
and try to flourish in what is now presented to
them as a partially hostile environment. To the
88

This last claim is puzzling since Waldrons racist or Islamophobe is also said
to be interested in developing more people like him. Indeed, thats what his
comforting message to those holding similar views is intended to do.
89

He interprets it to mean that people can choose to hear what they hear: I
suppose Baker is right that hearers could choose to hear [all blacks should be
sent back to Africa] as Blacks are welcome here, and that it is only in the exercise of their autonomy that they do not. But this is silly. Waldron at 170. Indeed, it would be, if that was what Baker was saying, but it wasnt.
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Chapter IThe Argument

extent that the message conveyed by the racist already puts them on the defensive, and distracts
them from the ordinary business of life with the
grim determination to try and act like a normal
citizen against all the oddsto that extent, the
racist speech has already succeeded in one of its
destructive aims. (170-71)
Waldron reiterates his preference for ad hoc balancing over
categorization and says that not all hate speech should be
suppressed, but, in so saying, he leaves an enormous amount
of discretion to administrative authorities:
That balance might not require the suppression
of every word or epithet that counts colloquially
as hate speech. It may require us to attend to the
most egregious forms of group libel, particularly
when the threatening or abusive form in which it
is presented makes the destructive intention of
the self-disclosure more or less explicit. And, on
the other hand, it may require us to ensure that
there are legally innocuous modes and forms of
expressionwhere similar views can be aired
(similar values and attitudes disclosed) in ways
that minimize the damage to social values and individual dignity. (171-72)
So the hate speaker is really not silenced; he remains free to
vent his spleen in legally innocuous modes and forms of
expression, though not in the most egregious, abusive, or
destructive ways he would otherwise prefer.
In his penultimate chapter, Waldron takes aim at
Ronald Dworkins claim that the legitimacy of the laws
might be imperiled by the enactment and enforcement of
hate speech laws:
65

Chapter IThe Argument

Fair democracy requiresthat every competent


adult have a vote in deciding what the majoritys
will is. And it requires further, that each citizen
have not just a vote but a voice: a majority decision is not fair unless everyone has had a fair opportunity to express his or her attitudes or opinions or fears or tastes or presuppositions or prejudices or ideals, not just in the hope of influencing
others (though that hope is crucially important),
but also just to confirm his or her standing as a responsible agent in, rather than a passive victim of
collective action. The majority has no right to impose its will on someone who is forbidden to raise
a voice in protest or argument or objection before
a decision is taken.90
This says, according to Waldron, that unless people are permitted to voice their opposition in whatever terms they
choose on any issue before the public, then no legitimacy
will attach to any laws that are enacted over their opposition.
Waldron says Dworkins argument attempts to turn
the tables on those like MacKinnon who believe that permitting pornography and hate speech is permitting (and, indeed,
promoting) the very causes of sexual, racial, and religious violence and discrimination:
Those who support hate speech laws often say
that they are necessary in order to address the
causes of violations of downstream laws. They say
that if we leave hate speech alone, then we are
90

Forward to Extreme Speech and Democracy, supra note 87, at VII, as


quoted in Waldron at 173, 175.
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Chapter IThe Argument

leaving alone the poison that leads to violence and


discrimination downstream. Dworkin turns the
tables on this argument by saying that if you interfere coercively upstream, then you undermine
91
political legitimacy downstream. (178)
Waldron caricatures Dworkins argument by reading it to say
that if you want to be tough on crime, then you should be
tolerant about the causes of crime. He also reads it to say
that we should dismiss from consideration propositions
about the harm that such speech causes. Waldron quotes
Dworkin:
But even if it could be shown, as a matter of
causal connection, that pornography is in part responsible for the economic structure in which
women obtain top jobs or equal pay for the same
work, that would not justify censorship under the
Constitution. It would plainly be unconstitutional
to ban speech directly advocating that women occupy inferior roles, or none at all, in commerce
and the professions[s]o it cannot be a reason for
banning pornography that it contributes to an unequal economic or social structure, even if we
think it does. (180)92
Waldron takes from this that Dworkin is oblivious to the social and economic eects of pornography and hate speech,

91

Of course, MacKinnon and Waldron would go further and claim that pornography and hate speech are discriminatory as such.
92

Quoting Ronald Dworkin, Freedoms Law: The Moral Reading of the


American Constitution 219 (Harvard University Press 1996).
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Chapter IThe Argument

preferring to stick with the U. S. Constitution as he and others currently interpret it. (180-81) He also argues that
Dworkins alleged upstream/downstream argument proves
too much in that it would apply even to current exceptions
to free speech protections like obscenity, child pornography,
fighting words, individual libel, sedition, and disorderly conduct. Forbidding such expression should aect the legitimacy
of downstream laws just as much as hate speech laws yet
Dworkin ignores this eventuality. Moreover, Waldron says
that Dworkins argument also casts aspersions on downstream laws such as those that would prevent religious discrimination or violence, if there are upstream laws like Britains which ban religious hate speech. (182-185)
Contrary to Dworkin, Waldron thinks most hate
speech laws are legitimate because they restrict only the
most virulent forms of hate speech: most such laws bend
over backwards to ensure that there is a lawful way of expressing something like the propositional content of views
that become objectionable when expressed as vituperation.
They try to define a legitimate mode of roughly equivalent
expression. For example, he says, the U. K.s Public Order
Act of 1986 prohibits written expression only if it is threatening, abusive, or insulting, and only if the intent behind it is to
stir up racial hatred. Moreover, he tells us, Australias Racial Discrimination Act which bans actions that insult, humiliate, or intimidate a group of people because of their race,
color, or national or ethnic origin does not render unlawful
anything said or done reasonably and in good faithin the
course of any statement, publication, discussion or debate
made or held for any genuine academic, artistic or scientific
purpose or any other genuine purpose in the public interest.
(190-91, emphasis in original) Thus, he argues, the more credible the reason for protecting vulnerable minorities from hate
speech, the less credible the complaint against hate speech
laws. While oense is not a legitimate reason for passing hate
68

Chapter IThe Argument

speech laws, protecting the basic social standing and dignity


of vulnerable groups is, and this reason is sucient to trump
free expression concerns when the speech at issue is threatening, abusive, or insulting and is intended to foment hatred.

69

n
II
Vulnerability, Security, and
Double-Standards
A. On Vulnerability and Security
Someone who has a lot of time to waste should do a
word count to ascertain how many times Waldron uses the
term vulnerable minority and its cognates in The Harm in
Hate Speech. I attempted one but gave up as there were way
too many instances for my meager abilities to complete the
task without omitting perhaps twenty or thirty of them.
What is striking, however, is not the mere fact that he deploys such terms so often as to almost dull our sensibilities
altogether as that he does so without ever telling us why any
given minority is vulnerable. Nowhere does he tell us in
what any given minoritys alleged vulnerability consists, or
why women fit the picture of a minority since theyre actually
a majority, or why, in certain contexts, members of majority
groups cant qualify as vulnerable in the exact same sense as
minorities? Instead of focusing on these rather obvious questions, Waldron chooses instead to play one of the Lefts favorite gamesthe Majority oppressor versus Minority oppressed gamein which if you know a priori the racial, religious, or sexual identity of the players then you also know
the teams into which they fit as well as the outcome of the

Chapter IIVulnerability, Security, and Double-Standards

game.93 Waldrons sole contribution to the game is to change


the Minority teams description from oppressed to vulnerable. Nowhere, however, does he tell us how we should describe Majority group members. They cant be vulnerable,
but are they sort of vulnerable? or completely invulnerable? Surely, one of these would seem to be required by his
dyadic model. The diculty, however, is that these categories are deployed both a priori and abstractly throughout
Waldrons argument without any regard to the dierent contexts and circumstances in which individuals inhabiting them
might find themselves; categories Waldrons fellow leftists
are fond of using as if, in the abstract, they had any serious
analytical utility. But they dont, and the fact that they dont,
raises questions about Waldrons main thesis.
For one thing, the list of groups considered vulnerable is highly selective and seems to follow standard hackneyed leftist lines. The minorities Waldron thinks are vulnerable are, apparently, Muslims, Blacks, Hispanics,
Women, Jews, Gays, Lesbians, Bi-Sexuals, the
Transgendered, Queers, perhaps even the Two-Spirited
along with any other human element that might construct
Mari Matsuda is an expert at the game. See Public Response to Racist Speech, supra note 43, at 2361-70. But cf. my The Civil Libertarian as Censor: Public Response Reconsidered, 56 Alb. L. Rev. 337, 352-63 (1992) [hereinafter Civil Libertarian]. On the double-standard argument, vulnerable group members are
also better off in terms of rights as they are protected from both individual and
group defamation. However, as Ivan Hare asks: What does it mean to say that
I have an actionable right to vindicate the reputation of the group to which I
belong in addition to my personal reputation? What would be the basis for such
a right? Certainly not my humanity. The harm of hate speech legislation, Eurozine (Mar. 23, 2012), http://www.eurozine.com/articles/2012-04-24-hareen.html.
93

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Chapter IIVulnerability, Security, and Double-Standards

itself ad hoc and, thus, require protected status. But there are
scores of other groups that have vulnerability credentials
that are certainly as good as or better than any of those
listed. The mentally and physically disabled, the very young,
the very old, the disfigured, the homely, the fat, the skinny,
the nave, the depressed, the bankrupt, the very poor, the
very rich, the sick, the diseased, and the terminally ill all
could qualify for vulnerable status just as much or more, depending on the circumstances on the ground, than do the
categories Waldron selects; yet he arbitrarily selects only
those racial, ethnic, religious, sex, and sexual categories that
all good left-wing identity politicians select.
Moreover, even given the exclusive list of groups that
Waldron includes under the vulnerable umbrella, the category itself has no consistent measure, and, therefore, risks
being both over-and underinclusive, and, thus, incoherent
and arbitrary. The list of protected groups Waldron adopts
share nothing in particular which would qualify them to be
considered part of a single category other than their alleged
abstract vulnerability. Is the measure ineluctability? Then
Muslims, religious Jews, Transsexuals, Queers, and Questioners dont fit because their membership is by election rather than ineluctability, and so the measure is underinclusive.
Is the measure income and wealth? Then, generally, Jews,
Asians, Women, Muslims, many LGBTers, Queers, and
Questioners are not necessarily vulnerable as these
groups are as a rule much better o than Blacks or Hispanics.
Here the category is overinclusive. Is the measure color?
Then Women, Jews, LGBTers, Muslims, Queers, and Questioners94 who are white do not qualify for membership while
94

Actually, new identity classifications are being constructed almost daily,


making the animus against sexual preference seem pass. Now, of course, we

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Chapter IIVulnerability, Security, and Double-Standards

must speak in terms of gender identification, a category, however, to which


we now must add QIQAAers, to the LGBT element if we are to get the full
complement, namely, the LGBTQIQAA (LESBIAN, GAY, BISEXUALS,
TRANSGENDERED, QUEER, INTERSEX, QUESTIONERS, ASEXUALS, and their ALLIES), http://groups.yahoo.com/neo/groups/SoCalSMEvents/conversations/topics/12722. But wait! The sex class has, apparently, given
birth to two more groups. As of December 2, 2013, we had to add transsexuals
and two spirited folks to the list and increase the full complement to
LGBTTQIQ2SAA! Urban Dictionary, http://www.urbandictionary.com/define.php?term=lgbttiqq2sa. Nope, I am just informed we now have
to add monosexuals and non-monosexuals to the list as well. Sexuality,
Women, and LGBT Concerns, Tumblr, http://christineleem.tumblr.com/post/14761303810/y-axis-0-10-of-genders-one-is-attracted-to/ (2012).
Just when you think the silliness has reached its apex, we are confronted also
with LGBTQQFAGPDBSM. George Will, Americas higher education brought
low, Jewish World Review (Nov. 25, 2015), http://www.jewishworldreview.com/cols/will112515.php3. For a sane account of all this politically correct
nonsense, see this statement by the American College of Pediatricians:
Michelle A. Cretella, Quentin Van Meter & Paul McHugh, Gender Ideology
Harms Children (Mar. 21, 2016), http://www.acpeds.org/the-college-speaks/position-statements/gender-ideology-harms-children.
OH, OH, the list keeps growing and growing to the most insane and,
even grisly, proportions. Apparently, there are now individuals who are so mentally disturbed that they actually cut off perfectly heathy limbs and other body
parts because these feel like imposters in their bodies. These are the transabled, or people who are identified as able-bodied by other people but who
feel the desire or the needto transform his or her body to obtain a physical
impairment. Sarah Boesveld, Becoming disabled by choice, not chance: Transabled
people feel like impostors in their fully working bodies, National Post (June 3,

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Chapter IIVulnerability, Security, and Double-Standards

Asians, Blacks, and Hispanics generally do which makes the


category underinclusive. Is the measure race? Then Jews,
white Women, white Queers and LGBTers dont fit, and the
category is overinclusive. Is religion the measure? Then, apparently, only Muslims and, maybe, Jews qualify while
Protestants, Catholics, Hindus, Buddhists, Taoists, Bahaites,
Zoroastrians, Rastafarians, Wiccans, Mormons, and Scientologists, along with various others of a religious bent do not.
Once again, the category is underinclusive. Are cultural practices the test of membership? Then nothing in the way of
these practices is shared from group to group except, perhaps, by LGBTers in the broadest sense, which renders the
category overinclusive. But if neither socio-economic status,
color, race, religion, nor culture constitutes a reason to classify these groups together, then, again, all we are left with is
their alleged abstract vulnerability, which, then, boils down
to the claim that the only thing that these groups share is
their unexplained vulnerability. They are, thus, vulnerable
2015), http://news.nationalpost.com/news/canada/becoming-disabled-bychoice-not-chance-transabled-people-feel-like-impostors-in-their-fully-working-bodies. In the moments lingo, such folks supposedly suffer from BIID
(Body Identity Integrity Disorder). For one persons self-mutilation story, see
Shannon Larrat, One Hand Jason, Modblog (Feb. 19, 2008),
http://news.bme.com/2008/02/19/one-hand-jason-biid-interview-in-bmenews-publishers-ring/. As if this narrative isnt bizarre enough, Wesleyan University even has a house that is to be home to all the identities students can possibly muster. Program HousingOffice of Residential Life, http://www.wesleyan.edu/reslife/housing/program/open_house.htm (last visited May 18,
2016). For the sake of clarity, brevity, and sanity, future references to LGBTers
should be taken to include all of the above identities as well as any still in the
works.

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Chapter IIVulnerability, Security, and Double-Standards

because they are classified by identity politicians and their


various academic allies as vulnerable.95 They are constructed
so!
Nor, even if these categories had some consistent
measure, is it useful to characterize all members of a particular category as vulnerable. For example, if we are to be realistic and not ignore the obvious, the category Blacks contains both vulnerables and non-vulnerables. Black teenage
gang members terrify other Blacks in many urban areas daily,
either by muggings, by robberies, by rapes, by shootings, and
by stabbings, but these actions, which clearly undermine
their victims status as equal citizens, do not seem to penetrate Waldrons ideological blinders. The same general point
is true about Muslims, a category, as well, that is home to
both vulnerable and non-vulnerable elements. Muslim
males have been known to make the lives of their wives and
daughters, other female family members as also women generally, miserable by forcing all sorts of sumptuary, medical,
and other illiberal and humiliating practices on them; thereby
undermining their claims to equal citizenship. Then too,

95

Someone might object to my claim of incoherence that the listed groups are
all vulnerable but for different reasons, so that what counts is vulnerability
per se. However, if this is the claim then white males must certainly be considered in the mix depending on the circumstances in which they find themselves.
See, e.g., Beat Whitey night at the Iowa State Fair in 2010; or the same reprised at the Wisconsin State Fair in Milwaukee in 2011. Jonathon M. Seidi,
Report: Black Mobs Attack White Patrons Outside Wis. State Fair, The Blaze
(Aug. 5, 2011), http://www.theblaze.com/stories/2011/08/05/report-blackmobs-attack-white-patrons-outside-wis-state-fair/.

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Chapter IIVulnerability, Security, and Double-Standards

the practice of honor killing stands as the ultimate threat.96


Moreover, Islamist elements within the Muslim community
also intimidate members of their faith from assimilating into
Western society. Similarly, intimidating tactics have been deployed by Black and Latino gang members to prevent fellow
Blacks and Latinos from acting white and pursuing educational and job opportunities open to them. A moments
thought could elucidate more examples to illustrate the point
that the use of the term vulnerable to describe whole categories of people is an exercise in futility, as these categories
contain within them members of both oppressor and oppressed classes.
Moreover, however useful rhetorically, the term vulnerability in the abstract suggests little of any analytical importance; for vulnerability is always a relative matter. A person is vulnerable only in relation to something or someone
else like a disease, perhaps, or a market-failing, or a sudden
storm, or, as in this case, another person or group. Waldron
would like us to think, I believe, that the vulnerables he
lists are vulnerable because of the big, bad, powerful, and
96

Phyllis Chesler & Nathan Bloom, Hindu vs. Muslim Honor Killings, The
Middle East Quarterly (Summer 2012), http://www.meforum.org/3287/hindu-muslim-honor-killings. Add to this list the white and minority shopkeepers in Ferguson, Missouri and Baltimore, Maryland who had
their shops looted and demolished by those seeking racial justice for the Auth
th
gust 9 , 2014 shooting of Michael Brown or the April 19 , 2015 death of Freddie Gray. Riots erupt during Ferguson protests, KSDK (Aug. 18, 2014),
http://www.ksdk.com/story/news/local/2014/08/10/rioting-breaks-out-in-ferguson/13880305/. See Death of Freddie Gray, Wikipedia, https://en.wikipedia.org/wiki/Death_of_Freddie_Gray.

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Chapter IIVulnerability, Security, and Double-Standards

nasty racist, sexist, anti-Semitic, homophobic, or Islamophobic signs which either construct the alleged vulnerability or
play on and, thus, reinforce an already existing vulnerable status. He never says which, but it matters greatly whether the
vulnerability is constructed by the hateful signs or is merely
played on by them, or, for that matter, whether these signs
are even a factor at all. He seems simply to assume that there
is some causal connection between the signs and the vulnerability of minorities.97
Whatever the choice, the entire big bad and nasty
racist, sexist, homophobe, Islamophobe narrative is false, at
least insofar as it is intended to describe the American population today. The racist narrative has been and is currently espoused most prominently by leftist academicsMatsuda,
Delgado, and Lawrence III are only the most noteworthy
but also by race hustlers and extortionists like the Reverends Jesse Jackson and Al Sharpton,98 by politicians like Eric
97

See Chapter II, Section B for a discussion of Waldrons causality argument.

98

The role of the Reverends was nicely played out in the Trayvon Martin
saga where they worked their reverential magic to whip up racial hostility to a
level sufficient to maintain their high incomes, all the while ignoring the Blackon-Black violence that their black hostages face in the ghettoes of most major
American cities every day. Jackson has become one of the finest extortionists
on record yet to be imprisoned. For a run-down on his many operations, see
Kenneth R. Timmerman, Shakedown: Exposing the Real Jesse Jackson
(Regnery Publishing 2002). For a consideration of the various others equally
adept at playing race cards to fill their coffers all the while ignoring the interests of their impoverished clientele, see Deneen Borelli, Blacklash: How
Obama and the Left are Driving Americans to the Government
Plantation (Threshold Editions 2012).

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Chapter IIVulnerability, Security, and Double-Standards

Holder and Bill De Blasio, and ever since Obamas 2008 campaign was launched, by most mainstream press and television
news presenters and commentators who seem to view their

Jump to August 2014 and the race riot in Ferguson, Missouri over the shooting
death of a Black, Michael Brown, by white police officer Darren Wilson. Here,
once again, Sharpton performed his usual part of well-paid arsonist, this time
sent on his mission by none other than the President of the United States. Pat
Bailey, Sharpton a key adviser to Obama on Ferguson, New York Post (Aug. 22,
2014), http://nypost.com/2014/08/22/sharpton-a-key-advisor-to-obama-onferguson/. Add to this the part played by Obamas chief race detector Attorney General, Eric Holder, who, unsurprisingly, expressed his support not for
justice in the abstract but for justice for the Brown family, all the while bringing with him to Ferguson 40 or so leftist race detectors from his Civil Rights
Division to find that special justice for the Brown family. Matthew Vadum,
Holders Lynch Mob in Ferguson, Front Page Mag (Aug. 21, 2014),
http://www.frontpagemag.com/2014/matthew-vadum/holders-lynch-mob-inferguson/. See also J. Christian Adams, Meet the Radical DOJ Unit Investigating
Ferguson Shooting, PJ Media (Aug. 20, 2014), http://pjmedia.com/jchristianadams/2014/08/20/radical-doj-unit-ferguson/. Oddly enough, after their
truly Herculean efforts to find it, they actually failed. For a useful corrective to
the nonsense that passes for wisdom about racism in Ferguson and who the real
racists are, see Bill Whittle, Ferguson and the Real Race War, Truth Revolt
(Aug. 20, 2014), http://www.truthrevolt.org/videos/bill-whittle-ferguson-andreal-race-war. For another, see the sockdolager launched by David Horowitz
and John Perazzo against the so-called White Privilege argument in favor of
the more realistic but supposedly non-existent privilege given to black thugs.
Black Skin Privilege And Ferguson, Truth Revolt (Nov. 20, 2014),
http://www.truthrevolt.org/commentary/david-horowitzjohn-perazzo-blackskin-privilege-and-ferguson.

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Chapter IIVulnerability, Security, and Double-Standards

jobs as protectors of the Obama legacy.99 The narrative is often brought into play whenever anyone says something contrary to the wishes, policies, practices, or interests of the
Obama administration. Nevertheless, mere repetition of the
narrative either by people who have interests in silencing political opponents by charges of racism, or who sympathize
with those who do, certainly doesnt mean that the narrative
is accurate.
While this is no place exhaustively to treat the subject, if the racist narrative had a germ of truth, Barack
Obama never would have had a first, much less a second,
term in oce. And while it is certainly true that isolated acts
of racism are today committed by both Blacks and Whites
with racial violence by Blacks clearly outstripping that of
Whites100the idea that America today is a racist society
given everything that has transpired since the Second World
99

On MSNBC in 2008 after Obama was elected President, Chris Matthews


said: I want to do everything I can to make this thing work, this new presidency work. See zefallafez, Chris Mathews: My Job Is To Make Obama Presidency Successful, YouTube (Nov. 7, 2008),
https://youtu.be/JFJvlzDpey4?t=42s. See also Chris Matthews, Wikipedia,
https://en.wikipedia.org/wiki/Chris_Matthews.
100

According to the National Crime Victimization Survey: In 2012 blacks


committed 560,000 acts of violence against Whites (excluding homicides), and
Whites committed 99,403 acts of violence against blacks (excluding homicide.) Thus, though less than 13% of the population, blacks committed 85% of
all non-homicide interracial crimes. Heather MacDonald, The Shameful Liberal
Exploitation of the Charleston Massacre, National Review (July 1, 2015),
http://www.nationalreview.com/article/420565/charleston-shooting-obamarace-crime.

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War is not only false; its bizarre. In any event, the idea that
anyone caught posting a sign today saying Niggers go
Home, or anything equivalent, would draw upon himself anything other than a wagonload of grief is simply absurd.101
101

Unless, of course, you are white Democratic party activist students, assisted
by spineless college administers protecting them, who post hateful signs denigrating Blacks and Gays, paint swastikas and other racist graffiti, while wearing
KKK-style hoodiesall in order to maliciously communicate a false image of a
racist, etc., college environmentas was done by Oberlin students. Chuck
Ross, Meet the privileged Obama-supporting white kids who perpetrated cruel Oberlin race hoax, The Daily Caller (Aug. 22, 2013), http://dailycaller.com/2013/08/22/meet-the-privileged-obama-supporting-white-kidswho-perpetrated-cruel-oberlin-race-hoax/. See Michelle Malkin, How Oberlin
Manufactured the Hate-Crime Hoax of the Year; Updated, Michelle Malkin
(Aug. 23, 2013), http://michellemalkin.com/2013/08/23/how-oberlin-manufactured-the-hate-crime-hoax-of-the-year/. See also Doug Stanglin & Mary Beth
Marklein, Oberlin sees progress in probe of hate incidents, USA Today (Mar. 5,
2013) http://www.usatoday.com/story/news/nation/2013/03/05/oberlin-college-hate-speech-incidents-kkk/1964381/. Or this at Virginia College: Renee
Nal, Hate crime hoax leads to campus lockdown at Virginia college, eagnews.com
(Sept. 4, 2014) http://eagnews.org/hate-crime-hoax-leads-to-campus-lockdown-at-virginia-college/. Then, of course, there was the Duke lacrosse team
racial hoax signed on to by 88 Duke University professors: Group of 88, Wikipedia, http://en.wikipedia.org/wiki/Group_of_88; the Claremont college race
hoax: Joy Buchanan, Kristina Sauerwein & Stuart Silverstein, Claremont Hate
Crime Called Hoax, Los Angeles Times (Mar. 18, 2004) http://articles.latimes.com/2004/mar/18/local/me-claremont18; and, of course, the very
special Tawana Brawley/Sharpton race hoax. Heres what law professor Patricia Williams had to say about Brawley: she has been the victim of some unspeakable crime. No matter how she got there. No matter who did it to her and

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That it would have any eect the poster would desire is multiply so.
The same can be said for Waldrons MacKinnonite
view that America is a sexist society because it is supposedly
flooded with pornography and the allegedly brutal treatment
even if she did it to herself (emphasis added).Tawana Brawley rape allegations,
Wikipedia, http://en.wikipedia.org/wiki/Tawana_Brawley_rape_allegations.
Stanley Diamond thought fit to add that In cultural perspective, if not in fact,
it doesnt matter whether the crime occurred or not, because it described
what actually happens to too many black women. Reversing Brawley, The
Nation, Vol. 247, no 12, 1988. The terminal stupidity of these remarks needs
no comment. Nor is there a paucity of fake hate crime reports by Gays and
Lesbians. Daniel Greenfield, Another Day, Another Fake Anti-Gay Hate Crime,
Front Page Mag (Mar. 12, 2014), http://www.frontpagemag.com/2014/dgreenfield/another-day-another-fake-anti-gay-hate-crime/.
Finally[?], there is the rape hoax perpetrated by Sabina Rubin Erdely and assisted by Rolling Stone magazine which led Teresa Sullivan, president of the
University of Virginia, to suspend all fraternities and sororities on campus[!]
and tar the reputation of an alleged assailant. Eric Owens, Here Are EIGHT
Campus Rape Hoaxes Eerily Like The UVA Rape Story, The Daily Caller
(Dec. 14, 2014), http://dailycaller.com/2014/12/14/here-are-eight-campusrape-hoaxes-eerily-like-the-uva-rape-story/. Not to be outdone, Milo Yiannopoulos has uncovered at least 100 hate crime hoaxes from 2007 to 2016.
There Have Been Over 100 Hate Crime Hoaxes In The Past Decade, Breitbart
(May 2, 2016), http://www.breitbart.com/milo/2016/05/02/hate-crimehoaxes-growing-epidemic/. For one criticism of the rape culture nonsense
that has taken hold among some feminists today, see Glen Harlan Reynolds,
The Great Campus Rape Hoax, USA Today (Dec. 15, 2014), http://www.usatoday.com/story/opinion/2014/12/14/campus-rape-uva-crisis-rolling-stone-politics-column/20397277/.

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of women that comes along with it. It might also be said


about the idea that America is a society of homophobes. One
can certainly say something like that about many MiddleEastern or African countries, but to label a society homophobic in which discrimination against homosexuals is verboten,
and in which an overwhelming majority of the population
consents to homosexual civil unions and an increasing number support same-sex marriage is to have been asleep during
one of the quickest and most profoundly radical transformation of social attitudes in the countrys history. This leaves
Islamophobia, which, I think, is Waldrons main interest,
and it is one I shall consider later in this book.
Nevertheless, the picture of a society bereft of a
group libel statute that Waldron paints is so extreme as to
border on the hysterical:
A society that permits such publications may look
quite dierent from a society that does not. Its
hoardings and its lampposts may be festooned
with depictions of members of racial minorities
characterizing them as bestial or sub-human.
There may be posters proclaiming that members
of these minorities are criminals, perverts, or terrorists, or leaflets saying that the followers of a
certain religion are threats to decent people and
that they should be deported and made to disappear. There may be banners and swastikas celebrating or excusing the genocidal campaigns of
the past. There may be signs indicating that the
members of the minority in question are not welcome in certain neighborhoods or in polite society generally, and flaming symbols intended to intimidate them if they remain. That is what a society may look like when group defamation is permitted. (66, emphasis in original)
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Chapter IIVulnerability, Security, and Double-Standards

What is the point of this portrayal of the consequences of


tolerance? True enough, Waldron does not say that his
sketch depicts what the permissive society wi! look like,
only what it may look like, and while we might agree with
him that its details are possible in the sense that almost anything is possible, there is no good reason whatever to think
that the resulting picture is in any way realistic. The simple
fact is that America has never been, and surely is not now, a
society that has, or is likely, to answer to Waldrons fantasy.
Yes, parts of the South from the Civil War to the 1960s answered to some of the elements of the overall picture, but
the country as a whole never has, and nothing in its current
makeup even remotely suggests that it will. The claim that it
may is pure fantasy.102
Nor, ironically, is there in Waldrons entire book any
indication of empirical research that would justify some of
the more extreme claims he makes. Indeed, his most global
claim of the harm in hate speech is even contradicted by another of his assertions. Without providing any empirical evidence in support, he asserts that hate speech does enormous
damage to vulnerable minorities, and he faults free speech
advocates not only for overlooking this damage but also for
doing so with studied obtuseness. But he never suggests
why anyone should be forced to defend the right of freedom
102

The idea propounded by Attorney General Eric Holder that there has been
an anti-Islamic backlash since 9/11 is also a piece of leftist fantasy. FBI hate
crime statistics for 2012 showed that of 1340 victims of religious offenses, Jews
numbered 62.4% of the cases while Muslims numbered just 11.6%, or just 155
individual cases. Jonathan S. Tobin, Holders Post-9/11 Backlash Myth, Commentary (Apr. 29, 2013), http://www.commentarymagazine.com/2013/04/29/eric-holder-post-911-backlash-myth-muslims-boston/.

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Chapter IIVulnerability, Security, and Double-Standards

of expression against a thesis that is simply asserted but nowhere proved;103 or for overlooking damage that they believe
is either non-existent or not severe enough to warrant inroads on a fundamental right?104 Is Mr. Liberal supposed
simply to assume the reality of the phantom Waldron conjures up and then waste his energy trying to knock it down,
just in order to show that he is not simply trying to gain
some advantage for his position in the hate speech debate? (116)
One last point in this regard and it is a problem Waldron shares with many other of his fellow leftists. Claims
that America is a racist, sexist, or homophobic society are
rarely, if ever, measured against the records of other societies. However, compared to which country? is surely a
question that should be addressed before any global accusations of racist, etc., are leveled against the United States as
such. Or are we to believe the obvious falsehood that racism,
sexism, homophobia and the like exist only in the United
States and not in the various countries of Europe, Asia, Africa, Australia, and, yes, even New Zealand? In fact, America

103

Perhaps Waldron assumes the damage he should otherwise show because he


bought into Catharine MacKinnons singular claim that pornography or hate
speech simply are the damage they are otherwise said to cause. See Chapter XI.
104

See, e.g., David Gordon, The Harm in Hate Speech Laws, Mises Institute
(2012) (book review, reviewing Jeremy Waldron, The Harm in Hate
Speech (2012)) at http://mises.org/daily/6070/.

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Chapter IIVulnerability, Security, and Double-Standards

today is one of the last countries in the world to be designated as racist, and yet it is the one Waldron seems most eager to condemn.105
Moreover, while I do not think Waldron can substantiate his global claims about the racist, sexist, etc., look of
American society, his abstract discussion about vulnerable
minorities collapses altogether when we localize it. For one
thing, there is what I have elsewhere called the Inter-IntraVictim-Group Vilification problem.106 Discerning the vulnerable party is not an easy matter when, for example, one
105

Instead of comparing the United States to other countries, leftists like Waldron compare it instead to the utopian and non-existent well-ordered society. This permits him to claim that America is flawed not because it is demonstrably worse than any other country (which would be rather difficult to prove)
but because it is not ideal.
106

This is the persistent and touchy problem that arises when one subordinated group inflict[s] racist speech upon another subordinated group, or when
one member of a subordinated group trashes another member of the same
group. Civil Libertarian, supra note 93, at 357, 352-59, quoting Public Response to
Racist Speech, supra note 43. Michael Rosenfeld, a fellow double-standard
speech suppressionist, entirely ignores the inter-intra group vilification problem, and, indeed, thinks that the double-standard actually minimizes any bias
problem caused by speech regulation. Beginning, like Matsuda, from the assumption that racist speech by a member of a historically dominant race
against members of an oppressed race is likely to have a more severe impact
than racist speech by the racially oppressed against their oppressors, he concludes that even if this is thought not to justify selective regulation of hate
speechthe racist speech of a member of an oppressed racial group calls for
greater leniency if it was in response to the racism perpetuated by members

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Chapter IIVulnerability, Security, and Double-Standards

such alleged vulnerable group member trashes a member of


another such groupfor example a black Muslim attacking
an Orthodox Jew on a New York subway.107 Moreover, of
what utility is the concept when we find some Muslims justifying rape by blaming women who parade their sexuality in
public, or some Muslim men who believe it is legitimate to
beat ones wife, force women in public to cover their hair or
faces, or even enclose themselves in bags, and, generally,
practice all sorts of restrictiveeven violentmeasures to
keep them under their control?108 Moreover, which is the
vulnerable group when the practitioners of Islam or some
Blacks, for example, go viral about LGBTers, Queers, and
associated identities? And who is the victim when a samesex couple sues and attempts to put out of business a white
of the oppressor race. Yes, indeed, folks, this winning strategy definitely minimizes bias. See Hate Speech in Constitutional Jurisprudence: A Comparative
Analysis [hereinafter Rosenfeld], in Hate Speech, supra note 65, at 242, 288.
107

Jim Goad, Race and SupremacyThe Problem With Race Wars Among Minorities, Takis Magazine (Feb. 9, 2015), http://takimag.com/article/the_problem_with_race_wars_among_minorities_jim_goad/print%23axzz43qtdapif.
108

And what are we to make of a lesbian feminist police chief and female city
council representatives of a major American city donning the appropriate
headgear on a day declared by Somali staffers to be hijab day? Daniel Greenfield, Minneapolis Lesbian Police Chief Dons Hijab for Hijab Day, Frontpage
Mag (Mar. 14, 2014), http://www.frontpagemag.com/2014/dgreenfield/minneapolis-lesbian-police-chief-dons-hijab-for-hijab-day/. Meanwhile, in Somalia, a gay man was stoned to death in 2013 simply because he was gay. Robert
Spencer, Sharia in action in Somalia: Gay man stoned to death, Jihad Watch
(Mar. 20, 2013), http://www.jihadwatch.org/2013/03/sharia-in-action-in-somalia-gay-man-stoned-to-death.

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Chapter IIVulnerability, Security, and Double-Standards

Christian baker who refuses to bake a cake for their wedding? Context would seem to be all important, and if context
is the ultimate determinant, the vulnerability concept itself
is theoretically and practically worthless.
Not to Waldron, however, who simply assumes that
his list of vulnerable groups is in no way controversial, and
that members of such groups are legitimately stipulated vulnerable irrespective of the dierent and various contexts in
which their members may find themselves. However,
whether anyone, majority or minority group member, male or female, who lives in a major urban area today can count on being secure in Waldrons sense of the term, is highly doubtful. Should he, as a representative white male, think his invulnerability privilege assures him the ability to deliberate
what to do in peace, perhaps he should spend a night walking and taking in the warm night air of Watts, Compton, or
anywhere else in South-Central Los Angeles,109 parts of the
south side of Chicago, or just about anywhere in downtown
Detroit. And should he be blessed with a handsome teenaged
daughter, we might wonder how secure he would feel
should she decide to take a midnight stroll, alone or with a
109

Note what happened to three young white women on a Halloween night in


Long Beach, California in 2006; without any provocation, they were set upon
by a mob of 30 to 40 black adults and teens who slammed them to the ground,
brutally beat them, ripped earrings from their earlobes, and ended up causing
multiple internal injuries, massive facial damage, and severe concussions. They
were saved from death only by the intervention of a civilized Black Samaritan
who probably risked his own life and limb to save them. Larry Elder, The
Knockout GameNYT/NPR Say No Big, Real Clear Politics (Nov. 28,
2013), http://www.realclearpolitics.com/articles/2013/11/28/the_knockout_game_--_nytnpr_say_no_big_deal_120802.html.

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Chapter IIVulnerability, Security, and Double-Standards

non-Muslim friend, both lacking the required hijab in, say,


Dearborn, Michigan? Still further, how secure would he feel
in retrospect if one of his close friends or relatives had been
blown to pieces at the Boston Marathon because of the jihadist eorts of two allegedly vulnerable group members?110
Nor does Waldron have anything at all to say about
violence inflicted on majority group members by minorities,
which is much greater in number and consequence than the
reverse. I speak here not only of that of Mohammed Atta &
company, along with local Muslim terrorists like the Tsarnaevs, Major Nidal Hasan, and terrorist wannabes like Richard Reid, Jose Padilla, the Christmas and the Times Square
bombers, but also the many instances of individual Black
hates Whites, beats and kills Whites violence along with the
increasing incidences of black youth flash mobs regularly attacking, beating, and killing Whites who are doing nothing
more than deliberating about what to do, and who have
done nothing whatever to warrant such viciousness.111 Little
110

The Boston brother bombers did not come from vulnerable surroundings.
Tamerlan Tsarnaev was a golden gloves boxer and an accomplished pianist.
Brother Dzhokhar attended Cambridge Rindge and Latin School (the same
school that actor Ben Affleck and other notables attended) and held a
$2,500.00 scholarship from the city of Cambridge. The only real vulnerables
th
in Boston on Apr. 19 were the Bostonians who were either running in or
watching the race in close proximity to the bombs.
111

See, e.g., Horowitz and Perazzo, supra note 98. For an exhaustive rundown on
some of these see Colin Flaherty, White Girl Bleed a Lot: The Return
of Racial Violence to America and How the Media Ignore it (WND
Books 2013) [hereinafter White Girl]. For an update that focuses on the
knockout game, a favorite form of sport where young Black thugs sneak up

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Chapter IIVulnerability, Security, and Double-Standards

of this Black-on-White violence has gained the attention of


the national media, doubtless because it doesnt fit the mainstream medias preferred narrative of White-on-Black violence it is trying to sell. Moreover, even when these attacks
get media coverage, the stories rarely, if ever, indicate the racial identity of the attackers; they are just said to be youths
or young people. Nevertheless, Black-on-White violence is
real, is increasing, and does not portend well for interracial
relations. Nor, for that matter, does it augur well for Waldrons vulnerability argument.
My point here is that if minority group members do
not feel secure and assured in certain contexts, the same
is true of majority group members when they find themselves
willy-nilly in unpleasant locations at the wrong times and the
wrong circumstances, and in both instances hateful signage is
not a relevant variable.112 Moreover, most all of the things
and sandbag, injure, and kill Whites, Asians, gays, the homeless, and new immigrants just for a frolicking good time, see Colin Flaherty, Surprise! Media Finally Wake Up to Knockout Game, WND (Nov. 19, 2013),
http://www.wnd.com/2013/11/surprise-media-finally-wake-up-to-knockoutgame/.
112

No signs were needed to inflame the 10 or 12 black racists who beat and
nearly killed white-male truck-driver Steven Utash, who accidentally hit a
young black lad who carelessly stepped in front of his truck and suffered a broken leg. If it wasnt for a retired black nurse, Deborah Hughes, who, packing a
.38 threw her body over Utash, the thugs likely would have killed him. Commenting on the beating, Utashs son Joseph said: You know, its like you go in
Detroit and youre white, you dont belong. Seriously, Ive been pulled over by
the police before and theyre like Get back across 8 Mile, like Im not supposed to be over there, like Im not allowed to go in Detroit. White Man

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Chapter IIVulnerability, Security, and Double-Standards

that render the lives of Black and Latino people insecure today have nothing whatever to do with hate propaganda on
the part of members of the White majority; they have to do
with federal and municipal policies designed to keep them
dependent on government for their livelihood as well as
drugs, crime, and violence spawned by out-of-control fatherless Black and Latino teenage gang members preying on each
other as well as on other members of American society, minorities or otherwise.113
Beaten By Mob In Detroit After Hitting Boy With Truck: Was It A Hate Crime?,
CBS Detroit (Apr. 4, 2014), http://detroit.cbslocal.com/2014/04/04/whiteman-beaten-by-mob-in-detroit-after-hitting-boy-with-truck-was-it-a-hatecrime/. Another commentator on the incident hit Waldrons vulnerable argument precisely where it hurts: The fact is, its often hard to be white in
America, too, especially in a struggling city like Detroit. Just ask the Utash
family. Charlie LeDuff, A Beating in Detroit, The New York Times (Apr. 25,
2014), http://www.nytimes.com/2014/04/26/opinion/a-beating-in-detroit.html?_r=1. Indeed, the only signs that mattered in Washington, D.C. for
the black thugs who severely beat a Marine twice honored for bravery in Iraq
were those of the Black Lives Matter crowd. James Wilkinson, Decorated Iraq
vet whose bravery was immortalized in a statue 'attacked in hate crime': Marine says
he was beaten and robbed by teens who asked him if 'black lives matter' as he ate in
McDonalds, The Daily Mail (Feb. 16, 2016), http://www.dailymail.co.uk/news/article-3450254/Decorated-Iraq-vet-bravery-inspired-statues-says-beaten-teens-asked-black-lives-matter.html.
113

For a useful corrective to Waldrons vulnerable because of white racism argument, see Thomas Sowell, Intellectuals and Race (Basic Books 2013)
[hereinafter Sowell]. See also Theodore Dalrymple, Life at the Bottom:
The Worldview That Makes the Underclass (Rowman & Littlefield
2001).

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Chapter IIVulnerability, Security, and Double-Standards

In fact, the way Waldron deploys the term vulnerable renders it entirely meaningless and, thus, useless, because it omits the very information we need to determine
whether, and to what degree if any, individual members of
any particular group at any particular time or place actually
fit the description. For example, he asks us to believe that
that the father of a Muslim family out for a walk on a city
street in New Jersey encountering signs that say Muslims
and 9/11! Dont serve them, dont speak to them, and dont
let them in is terrified that his family is in danger; but he
doesnt tell us where in New Jersey he is walking. The Third
Precinct of Newark, perhaps? But if so, one might well think
the person(s) who posted the alleged signs should feel more
vulnerable (and probably would) than any Muslim, for the
simple reason that Muslims currently constitute a majority or
a strong minority in all sectors of that Precinct.114 The same
might be true of areas in Dearborn, Michigan today, or for
anyonemajority or minority group membersin the innercircles of many American cities. Vulnerability is, thus, relative to specific persons and contexts as well as specific timeframes.115
Finally, the idea that Blacks, Muslims, Hispanics,
Jews, women, LGBTers, etc., are completely vulnerable to
114

Muslim Community Leadership Coalition (MCLC), NYPD: Demographics


Report on Newark, NJ, Facebook (Feb. 27, 2012), http://www.facebook.com/photo.php?fbid=191848050921269&set=a.191847620921312.33469.19
1565500949524&type=3&theater.
115

Hippies were a vulnerable minority in parts of the deep South in the 1960s,
but certainly not now. Belgians are now vulnerable in Belgium whereas they
werent in 1958. See Brussels attacks: Two brothers behind Belgium bombings, BBC
(Mar. 23, 2016), http://www.bbc.com/news/world-europe-35879141.

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Chapter IIVulnerability, Security, and Double-Standards

acts or expressions of white males is absurd. Each one of


these so-called vulnerable groups has its own set of spokesmen and lobbyists pressing the interests and desires of the
group or groups represented.116 Waldron writes as if each
member of one of these groups faces the big and nasty white
man all by him-or-herself. However, while this frightening
portrait might help to scare up support for his group libel
statute, the picture, as a representation of reality, is as imaginary as it is ludicrous. All such individuals are represented by
groups and other individuals in society as well as in government who conceive it either their sole, or certainly one of
their foremost, duties to protect their relevant groups interests. Whether it is the NAACP or the Congressional Black
Caucus, the EEOC, the Civil Rights Division of the Department of Justice, Jet or Ebony magazines, or papers like the
Chicago Defender or the New York Amsterdam News, black
grievances are amply represented, and no black individual
stands alone against Whitey. The same can be said for the
many government ocials and administrative bodies which,
in company with academics and foundations, use their prestige and resources to embrace the interests of Hispanics,
women, Muslims, LGBTers, along with members of any
other racial, ethnic, religious, or sexual minority. So, painting
a picture of minority individuals cowering in fear, alone and
helpless to defend their reputations against the public rants
116

In his response to Waldrons contention that it is silly to treat groups of private figures similarly to individual public figures, Justice John Paul Stevens
notes that groups, like public figures, are better able to make effective responses to unfair charges than the average private citizen. Groups may aggregate their resources for response and take advantage of the greater credence
the public may afford to their shared, rather than individual, view. Stevens, supra note 3.

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Chapter IIVulnerability, Security, and Double-Standards

of big, bad, beer-swilling, belching, farting, ranting


Vulgermen is a bit of a stretch and most assuredly false.
Minority group organizations have every bit the power to
safeguard the reputations of their members as white males
have, and perhaps today, a fair bit more.117
B. The Logic of Double-Standard Censorship:
Group, Speech, Harm
Nor does Waldron seem concerned about the many
minority group members who are only too happy to be allowed a pass on whatever hateful garbage comes out of their
mouths or their publications. But there are world-a-plenty
examples of Blacks, Muslims, and other vulnerables indulging in what clearly would pass muster as hate speech on Waldrons test were they not members of the vulnerability protectorate. Here are some representative samples of Muslim

117

The 2013 Duck Dynasty crisis comes to mind here where the tolerant
PC thugs from GLADD demanded the Arts & Entertainment television network suspend Phil Robertson (the Dynastys Patriarch) for saying in an interview with GQ magazine that homosexuals, like adulterers, drunkards, slanderers, etc., wont get into heaven, and that he prefers a womans vagina to a
mans anus. According to the thugs, their efforts to silence him raised no free
speech issues; they just didnt believe that people like Robertson should be allowed to voice such intolerant sentiments! Tony Lee, A&E Executives Suspended Duck Dynasty Patriarch After Call With GLAAD, Breitbart (Dec. 19,
2013), http://www.breitbart.com/Big-Hollywood/2013/12/19/A-E-ExecutivesSuspended-Duck-Dynasty-Patriarch-After-Call-with-GLAAD. See also John
OSullivan, The New Blacklist, National Review (Dec. 23, 2013),
http://www.nationalreview.com/article/367007/new-blacklist-john-osullivan.

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Chapter IIVulnerability, Security, and Double-Standards

signage that, apparently, get a pass under Waldrons group libel statute: Exterminate those who slander Islam! Behead
those who insult Islam! Europe you will pay. Your 9/11 is on
its way! Kill the Jews! Jews are descendants of apes, pigs,
and monkeys!118 Here, as well, is some love expressed to
Whitey by a black thug: Exterminate white people; 90%
of white ppl are nasty. #Hate them!119 In the meantime signs
such as those of Pamela Gellers American Freedom Defense
Initiative posted in the New York subways which readIn
any war between the civilized man and the savage, support
the civilized man. Support Israel. Defeat Jihad.would arguably be prohibited as threatening, abusive, and insulting.120

118

London protestors: Behead those who insult prophet, The Daily Mail (Feb. 3,
2006), http://www.dailymail.co.uk/news/article-376088/London-protestersBehead-insult-prophet.html. See Brett M. Christensen, Muslim Protest PhotographsPictures From London, Hoax Slayer (Mar. 13, 2010),
http://www.hoax-slayer.com/muslim-protest-london.shtml. See also palwatch,
Allah describes Jews as apes and pigs, in sermon broadcast on PA TV, YouTube
(May 24, 2012), http://www.youtube.com/watch?v=FTLayc8zUc8.
119

Exterminate White People Ripped as Black Hate Speech, World Net Daily
(Oct. 23, 2005), http://www.wnd.com/2005/10/33003/. See Sam Landy, Chilling
911 call details final moments of Melbourne baseballer Chris Lanes life, The Advertiser (Aug. 22, 2013), http://www.adelaidenow.com.au/news/national/chilling-911-call-details-final-moments-of-melbourne-baseballer-chrislane8217s-life/story-fnii5smq-1226700172461.
120

See, e.g., item 16 on the list of hateful expressions in Chapter VIII at pp. 25556. Cal. State San Bernardino professor and Director of the Center for the
Study of Hate and Extremism, Brian Levin, has already labeled Geller an Islamophobe. Jeff Poor, Bill Maher: Comparing violence of Islam to Christianity

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Chapter IIVulnerability, Security, and Double-Standards

Like so many on the Left, nowhere does Waldron say anything that would indicate he is not the double-standard
suppressionist that he is.121
Double-standard speech suppressionists have clear
priorities, but these priorities are hidden behind a
smokescreen of harm. For while they say they are focused on
the harm they think hate speech causes, their real focus is
generally on the group allegedly harmed.122 Thus, they privilege the speech of putative oppressed minorities against
their white male oppressors. This double-standard strand
of suppressionist argument has a surprisingly large123 number
of adherents among those who consider themselves egalitarians. The argument was perhaps most bluntly formulated by
Stanford law professor Thomas Grey, one of the authors of a
liberal bullsh*t, Daily Caller (Apr. 20, 2013), http://dailycaller.com/2013/04/20/bill-maher-violence-islam-christianity-liberal-bullshit/.
121

Waldron does say: The fact that contempt, derision, and obloquy are directed at a minority group X by members of another minority group, Y, does
not mean we should not be concerned about the defamation of X. Defamation
by a minority against a minority may constitute the same sort of obstacle to
free, ordered life in a metropolitan, polyglot community as defamation by
members of the dominant majority against a minority group. Waldron at 50.
122

As Mary Frances Berry, former chairwoman of the U. S. Commission on


Civil Rights, so tersely put it: civil rights laws were not passed to protect the
rights of white men and do not apply to them. John Hawkins, 25 Examples of
Liberal Racism in Quotes, Right Wing News (Mar. 26, 2013), http://www.thecitizen.com/node/14677.
123

Surprisingly because such commentators almost always advance their arguments posing as liberal or radical egalitarians.

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Chapter IIVulnerability, Security, and Double-Standards

campus hate speech code adopted by Stanford and later overturned by the courts. According to Grey, the proposed code
would not impugn insults leveled by minorities against white
males: the Stanford regulation would prevent me [a white
male] from firing my most powerful verbal assault weapons
across racial, sexual, or sexual preference lines. By contrast,
people of color, women, and gays and lesbians can use all the
words they have at their disposal against me.124 This doublestandard argument exhibits a rhetorical posture which is the
exact reverse of its logical structure, for it is one that subordinates concern about any alleged harm both to the interests
of the groups allegedly harmed, and to the speech that allegedly harms them.
For example, lets say that our concern is, as Waldron
believes, with the insecure social status of minorities. Obvious questions arise, one of which, for example, is why only
minorities? As I have just argued, members of majority
groups can be every bit as insecure about their security and
safety under certain conditions as minorities; so why not ex124

Thomas C. Grey, Discriminatory Harassment and Free Speech, 14 Harv. J.L.


& Pub. Poly. 157, 161-62 (1991). See Gerald Uelmen, Campus Hate Speech
Codes, Santa Clara University (Nov. 15, 1990), http://www.scu.edu/ethics/publications/iie/v5n2/codes.html. Charles Lawrence III says that he once
proposed a hate speech measure which would not have protected persons who
were vilified on the basis of their membership in dominant majority groups. If
He Hollers Let Him Go, supra note 42, at 450. See also Mari Matsuda who contends that to be criminalized such speech must be directed against an oppressed group. Public Response to Racist Speech, supra note 43, at 2357. Racial insults are different from other insults in that they conjure up the entire history
of racial discrimination in this country. See also Words that Wound, supra note
40, at 157. See also Rosenfeld, supra note 106, in Hate Speech, supra note 65.

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Chapter IIVulnerability, Security, and Double-Standards

hibit concern about their social security? Logically, if the concern is with equal citizenship, then in a society that values
equal concern and respect for all, everyone whose security is
aected should be a subject of concern not just preferred segments of the population. Moreover, if our concern is with
the harmthe undermining and subversion of the social
good of equal citizenshipthen anything which produces it
should be the focus of our attention, not just hate speech.
The focus of double-standard suppressionists, like
Waldron, however, is only with hate speech or pornography
as possible causes. Any other possible cause, if it is even considered, is definitely secondary, no matter whether, as a matter of empirical fact, it is causally primary. Again, what activates double-standard suppressionists is not primarily the
harm, for if it were, then anyone harmed (majority or minority group member) would be cause for concern. Nor do such
suppressionists worry unduly about expressive causes other
than hate speech or pornography much less about any nonexpressive cause. Finally, if neither the harm itself nor any
non-expressive cause is the focus of the double-standard argument, neither is any group of concern that is not considered oppressed, marginal, or vulnerable.125 In doublestandard suppressionist thinking, the group is the primary
consideration, the cause is secondary, and the harm allegedly
caused is tertiary; exactly the opposite of what it should be to
anyone concerned with equal citizenship. That Waldron subscribes to this order of priorities is likely why he shows little
or no concern with the possibility of harm to any group he
doesnt arbitrarily label vulnerable.
125

And, as noted earlier, the list of those considered vulnerable is highly selective, has no consistent measure, and is, also analytically incoherent. In fact, the
concept vulnerability is little more than a politically useful, though empty analytical, abstraction. See Chapter II, Section A.

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Chapter IIVulnerability, Security, and Double-Standards

But even granting that racist, sexist, etc., speech


causes harm to its targets, why are these expressions any
more debilitating than others that may be attributed to
speech? Plenty of things people say to one another not only
cause distress but also might be interpreted to aect negatively their status as equal citizens. Telling the elderly that
they will not be given needed health care because it is not
cost eective certainly also tells them their citizenship is not
as valuable as someone who is younger and can be expected
to live longer. Telling someone with liver cancer that they
rate low on the list for a liver replacement because they drink
too much communicates to them that their life is not as important as anothers. Saying that those who dissent from
global warming orthodoxy are equivalent to Holocaust deniers and should be put in prison,126 or possibly even killed,127
can hardly be said to be treating them with the same concern
and respect accorded warming enthusiasts. Holding up signs
at an Occupy Movement rally saying The Rich are Parasites or Youre Poor Because the Rich are Rich or Capitalists are Murderers are messages that cannot be expected
to warm the hearts of those targeted or suggest that they
should be treated as equals. And how might someone who
has fled some brutal communist dictatorship feel when he or
she sees signs extolling the virtues of such regimes? Would
they feel any more welcome in their new country than our
storied Papa? All these cases involve pain inflicted by the
relevant message as well as denials of equal citizenship, but
126

As have various commentators who actually believe they are acting in a way
consistent with science. See Flew, infra note 301.
127

As a well-schooled psychology of music professor from the University of


Graz, Austria argued in 2012. See Prof. Richard Parncutt: Death Penalty for
Global Warming Deniers?, Tallblokes Talkshow (Dec. 24, 2012),
http://tallbloke.wordpress.com/2012/12/24/prof-richard-parncutt-death-penalty-for-global-warming-deniers/.

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Chapter IIVulnerability, Security, and Double-Standards

we do not criminalize them; they are considered part of the


world we must be expected to encounter in a free and democratic society.
To be clear, I am not arguing that the solution to the
double-standard bind is to pass laws which oer their protections to all social groups vulnerable or not; I think
group libel statutes are neither necessary nor desirable, however inclusive they may be. What I am suggesting is only that
Waldron, like other double-standard suppressionists, is curiously unconcerned about putative expressive harms to members of majority groups; he believes that it is just the social
standing of specific minorities that can be threatened by
such speech. Why only the minorities he lists are vulnerable he never says; he simply tells us that theyre vulnerable.
Nevertheless, every attack on Whites because they are
Honkeys or Gringos; every attack on Christians, Jews, or
atheists because they are infidels or Kuars; every attack
on Arabs or Koreans because they are exploiting poor
Blacks or Latinosis every bit an attack on the social status
and claim for equal citizenship of those under attack,
whether it be verbal, written, or violent.

100

n
III
Pornography and Hate Speech
as the Cause of Vulnerability:
The Slow-Acting Poison Argument
A. Pornography
Placing concern for the allegedly vulnerable group before the harm supposedly inflicted on it permits doublestandard speech suppressionists to disregard harms to members of majority groups, or even to members of, apparently,
non-vulnerable minority groups. Moreover, single-mindedly
focusing on hate speech or pornography as causes of these
harms distracts suppressionists from other, certainly more
plausible, causes of the alleged harms. Nowhere is this better
illustrated than in one of Waldrons paeans to Catharine
MacKinnon. Indeed, the end results of both Waldrons and
MacKinnons contentions are the same: they take the eect
for the cause, assigning pornography and hate speech causal
rather than the epiphenomenal status they more properly deserve.
Waldron agrees with MacKinnon that
Pornography is not just an image beamed by a sort of
pimp machine directly into the mind of a masturbator. It is world defining imagery whose highly visible,

Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

more or less permanent, and apparently ineradicable


presence makes a massive dierence to the environment in which women have to lead their lives. And
similarly, racial or religious defamation is not just an
idea contributed to a debate. In its published, posted,
or pasted-up form, hate speech can become a world
defining activity, and those who promulgate it know
very wellthis is part of their intentionthat the visible world they create is a much harder world for the
targets of their hatred to live in. (74, note omitted)
Pornography and hate speech (images and words) create and
define worlds in which women and minorities must live out
their lives every day in fear, silence, isolation, and terror.
Using pornography as a proxy for his hate speech argument,128 Waldron agrees with MacKinnon that pornography demeans, degrades, and libels (90)129 women, and adds
that it also denies them equal citizenship and educates men
as to how women should be treated. (94) To civil libertarians
who deny MacKinnons wisdom by arguing that anti-porn

128

Waldron apparently believes that pornography is little more than hate


speech directed against women.
129

Waldron says he knows that even though MacKinnon has misgivings about
using the logic of defamation as the whole basis of the case against pornography, he has found [her] insights on the connection between defamation of
women and the indignity and insecurity they face in everyday life hugely helpful in thinking through similar connections in the realm of hate speech. Waldron at 90.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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crusaders have not shown any causal connection130 between


consumption of pornography and sexual violence, Waldron
says that the causal connection can be made but it is not the
central issue. What he sees as central is the educational message pornography and hate speech send which, for the former, is that woman are a lower form of human life defined
by their availability for sexual use, and, for the latter, that
vulnerables lack dignity and are not to be treated as citizens of equal stature to white males. Indeed, he says, Not
only does pornography present itself as undermining societys
assurance to women of equal respect and equal citizenship,
but it does so eectively by intimating that this is how men are
130

Actually, Waldron assures us that MacKinnon has risen admirably to this


challenge in Only Words and elsewhere, but he neglects to tell us how she has
done so, whether she has been successful, or why he thinks she has. Waldron
at 92. Does she do so? Can she do so? Steven Gey is doubtful. He argues that
MacKinnon attempts to skirt the probably insuperablecausation difficulties
by making the much broader claim that pornography instills in men and women
certain ideas about gender that create a discriminatory society, which in turn
subjugates women in almost every aspect of their lives. Gey argues this indirect approach makes the causation problem worse. [H]er theory requires a
number of empirical conclusions that can never be proved. These unknowns include conclusions about the precise meanings about a very large and diverse
body of speech, the psychological effects such speech has on particular individuals (which, of course, must be isolated from the effects created by other aspects of society and the idiosyncrasies of individual personalities), the social
consequences of these psychological effects, and the multiple ramifications of a
policy authorizing governmental suppression of speech. The Case Against Postmodern Censorship Theory, 145 U. Pa. L. Rev. 193, 222 (1996). In my view, the
exact same criticism applies to Waldrons hate speech argument.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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taught around here, on the streets and on the screen, if not in


school, about how women are to be treated. (91)131 However,
if this is pornographys world defining message, it clearly
hasnt sunk in.
Like so many others either under the spell of
MacKinnons rhetoric or fearful of her animosity, Waldron
says that Western societies todayin which women are perhaps freer than ever in the past, have more life-options open
to them than ever before, and are by many, if not most,
measures treated equally or better than menare actually societies in which men are conditioned by pornography to treat
women as sub-human (as a lower form of human life) and actua!y do so treat them. This MacKinnonite nonsense is so bizarre that it bespeaks a mind that has become unhinged from
reality. In no part of North America or Europe are women
generally treated as MacKinnon says that is not also an enclave of religious and ethnic believers in beating, bagging, and
killing them to protect their honor. Surely, if Waldron is
seriously interested in the sub-human treatment of women,
he wouldnt focus on a society in which women dress and act
as they wish, and men masturbate to pictures of naked
women all the while opening car-doors for them; he would be
hitting the ground running into Mecca or Medina to inquire
why it is that women are forced to walk around in bags, why
they cannot leave their homes without a male family member
in tow, why they are not allowed to drive cars, why, if they
fornicate or commit adultery, they may have their heads
131

Waldron at 91 (emphasis in original). Presumably, the street lad pays no attention to his teachers, parents, siblings, other relatives, friends, law officers,
and various others in the superego mix that might suggest something a shade
less disgusting and much more reasonable.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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lopped o or be stoned to death, and why it is necessary to


lock and prevent schoolgirls from escaping buildings on fire
just because they are without their hijabs.132 Oh, yes, I almost
forgot: because Waldron is a Christian, he wouldnt be permitted entry into these fine cities in the first place!
Waldrons error here is a whopper. Like MacKinnon
and her counterpart, the late Andrea Dworkin, he assumes
that pornography is the cause of whatever ills are alleged to
render women subordinate to men. This is not only an excursus into idealism that one would think Waldron would
want to avoid; it is also a gigantic misdirection. For apart
from that of the thoroughly discredited Meese Commission,133 every empirical study yet conducted has failed to
demonstrate any causal relation between consuming pornography and engaging in sexual violence. While, to my
knowledge, no one has shown definitively that there is no
causal relationship, no one has yet shown there is one either,
and that is what has to be shown to render MacKinnons and
Waldrons claims operational. Instead, we have loads of clinical and empirical studies involving first year male university
students examined on the eects of viewing pornography.
These studies have generally concluded that while it is true
132

Mona Eltahawy, They Died for Lack of a Head Scarf, The Washington
Post Company (Mar. 19, 2002), http://www.library.cornell.edu/colldev/mideast/mutawsc.htm.
133

U. S. Department of Justice, Attorney Generals Commission on Pornography


Final Report. Vols. 1 and 2. Washington, D. C. U. S. Government Printing Office. For criticism, see e.g., Daniel Linz et al., The Attorney Generals Commission
on Pornography: The Gaps between Findings and Facts, 1987 Am. B. Found. Res.
J., 713, 713-28.

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The Slow-Acting Poison Argument

that viewing violent pornography has the eect of rendering


these students in the short term less likely to be sympathetic
to women who have been raped, no connection whatever has
been established between viewing the material and raping, or
otherwise abusing, women.134
134

Marcia Pally offers an exhaustive review of the empirical research in Sex


and Sensibility: Reflections on Hidden Mirrors and the Will to
Censor (Echo Press 1994). See also Thelma McCormack, Making Sense of Research on Pornography, in Women Against Censorship 181-205 (Varda
Burstyn, ed., 1985); F. M. Christenson, Pornography: The Other Side
(Praeger 1990); Gordon Hawkins & Franklin E. Zimring, Pornography
in a Free Society (Cambridge University Press 1988); Nadine Strossen,
Defending Pornography: Free Speech, Sex, and the Fight for
Womens Rights (Anchor 1996)[hereinafter Strossen]; Steven G. Gey, The
Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86
Mich. L. Rev. 1564, 1599-1606 (1988); Wendy McElroy, XXX: A Womans
Right to Pornography (St. Martins Press 1995). More recently, examining
data from 1975 to 2010, researchers at The University of Western Ontario,
found, as well, that male viewers of pornography exhibited positive attitudes
toward women, and that women as well as men used pornography to enhance
their sex lives. Stephanie Montgomery-Graham, Taylor Kohut & William
Fisher, et al., How the popular media rushes to judgment about pornography and relationships while research lags behind, Research Gate (Oct. 16, 2015),
https://www.researchgate.net/publication/282819337_How_the_popular_media_rushes_to_judgment_about_pornography_and_relationships_while_research_lags_behind. As, apparently, does Susan Sarandon who wants to become a director of pornographic films aimed at a female audience. Susan Sarandon wants to direct porn, News.Com.Au (May 18, 2016),
http://www.news.com.au/entertainment/movies/susan-sarandon-wants-to-direct-porn/news-story/fc81077d7c8e923e6936e469ab815ee4.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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Moreover, as soon as students are debriefed by their


investigators (the supposedly ineective more speech remedy), their attitudes change accordingly. Even more surprising to many who have simply assumed that women were
turned o by pornography is that a substantial number of
women have even taken to viewing and enjoying it. Of
course, the obvious Marcusean-MacKinnonite response to
this is that these women are simply manifesting their false
consciousness. Indeed, in response to the failure of researchers to establish the required causal connection between pornography and sexual violence, MacKinnon, declared, like the ideologue she is, that There is no evidence
that pornography does no harm. Right, however, as Nadine
Strossen said in response, There is substantial evidence that
censoring pornography does substantial harm.135
The claim that pornography is the cause of many of
the ills women face such as violence or discrimination ignores
other far more plausible candidates. Feminists like Nadine
Strossen, along with others, have argued convincingly that focusing on the images of pornography as the cause of what
they take to be the subordinate role of women in Western
society diverts us from the more obvious and more believable
sources of their plight. In eect, such arguments focus on the
symptoms of the problems women face rather than their
causes, and, in the process, divert attention and resources
from constructive, meaningful steps to address the societal
problem at which censorship is aimed.136 Some of these steps
that feminists traditionally link to sexual discrimination and

135

Strossen, supra note 134, at 246, quoting Only Words, supra note 39, at 37.

136

Strossen, supra note 134, at 265. C. Edwin Baker makes a similar point in
the context of hate speech. Hate Speech, in Hate Speech, supra note 65, at 75.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

which have nothing at all obvious to do with pornography include:


Sex segregated labor markets; systematic devaluation of work traditionally done by women; sexist
concepts of marriage and family; inadequate income-maintenance programs for women unable
to find wage work; lack of day care services and
the premise that child care is an exclusively or
largely female responsibility; barriers to reproductive freedom; and discrimination and segregation
in education.137
The same escape from reality into fantasy occurs with
the issue of violence against women. As another feminist,
Marcia Pally, argued:
Leading feminists and the U. S. Commission on
Civil Rights suggest that violence against women
begins with educational and economic discriminationMen learn to consider women burdens, stiflers and drags on their freedom. Women, in turn,
do not have the economic independence and access to daycare that would enable them to leave
abusive settings. Feminists also suggest that violence begins with the infantilization of women so
that men hold them in contempt and see them as
easily dismissed or lampooned and ready targets
for anger.138
137

Strossen, supra note 134, at 267 (note omitted).

138

Id. at 268, quoting Marcia Pally, Sense and Censorship: The Bonfire
of the Vanities 14 (Americans for Constitutional Freedom & the Freedom
to Read Foundation 1991).

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

Whether or not these feminist arguments are correct in


every instance, feminists are certainly on the right track to
look to material factors which are more the result of biology
or cultural practice rather than pornographic imagery to explain the ills of male and female relationships.
C. Hate Speech, Causation, and Automobile Exhaust Emissions:
The Slow-Acting Poison Argument

Despite the above, Waldron thinks that, contrary to everyone who has attempted it, an argument can be made that
causally connects pornography to violence against women
and he does it by analogy, in one paragraph, and without any
empirical research to support it. He analogizes pornography
and hate speech to automobile emissions! His argument
goes like this: just as it is absurd to argue that I shouldnt be
required to fit an emission-control device to my cars exhaust
pipe unless it could be shown that my PCV-less automobile
causes lead poisoning with direct detriment and imminent
harm to the health of assignable individuals, it is also absurd
to argue that I should not be prevented from publishing one
pornographic magazine or one hateful flyer unless a causal
connection between my magazine or flyer and some specific
instance of sexual or racial violence can be demonstrated.
And the reasons are the same in both cases: tiny impacts of
millions of actionseach inconsiderable in itselfcan produce a large-scale toxic eect that, even at the mass level, operates insidiously as a slow-acting poison, and that [anti-porn
and anti-hate] regulations have to be aimed at individual actions with that scale and that pace in mind. (97)139
139

As David Gordon noted, Waldron seems to assume that only toxic effects
can emerge from the posting of racist, etc., signs, but given that Waldron also

111

Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

The analogy obscures rather than clarifies. That the


putative harms of porn or hate speech publications are
properly analogous to those of automobile emissions is just a
bit of a stretch. For one thing, automobile emissions work
their harm whether we will or not; the same is not true of expressive harms which require that people not only understand the message intended, but to one extent or another
feel harmed or threatened by it and decide to take or not
take measures against it. And whereas unless unchecked, the
harmful eects of emissions are inevitable, the harms of pornography and hate speech are not. As countless laboratory
studies have shown, whatever damage may be done to the
psyches and penises of young boys exposed to violent pornography is short term only, and is easily rectified by debriefing rather than defenestration ceremonies. No one that I
know has ever said that the damage from airborne emissions
pollutants can be eliminated by de-briefing, praying, pleading, wishing, remonstrating, dismissing, ignoring, ordering, or
any other form of mental discourse or human communication.
The analogy is inapposite for another, just as obvious,
reason: it is not properly designated causal. To say that
tiny impacts of millions of actionseach inconsiderable in
itselfcan produce a large scale toxic eect is not to say
that it wi! produce that eect. To be sure if we are speaking
believes that the race issue is settled, and that only a few crazies today believe that people of African descent are an inferior form of animal, it is not
likely that the signs would have the effects Waldron postulates. Waldron at
195. David Gordon, The Harm in Hate-Speech Laws, (May 30, 2012) (book review, reviewing Jeremy Waldron, The Harm in Hate Speech (2012)) at
http://mises.org/daily/6070/.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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of automotive emissions, the term will would be apposite


because the entire process would be subject to the chemical
laws of nature. But, again, the real subject at issue here is pornography or hate speech, not automobile emissions, and
Waldrons use of can here shows that even he can imagine
results other than those he fears. Again, the analogy to mechanical reactions misleads rather than applies.140

140

Bhikhu Parekh presents a similar causal speculation about the long-term


consequences of permitting the public circulation of hate speech:
Vicious and widespread hatred of a group does not spring up overnight. It builds up slowly through isolated utterances and actions, each
perhaps trivial individually, but all cumulatively capable of coarsening
the community sensibility, poisoning the minds of the young, weakening the norms of civility and decency, and creating a situation in which
it becomes common practice to ridicule, mock, malign, and show hostility to the target group and, over time, to others. The violence implicit in hate speech then comes to the fore, initially in isolated incidents, but gradually gathering a momentum of its own.
Parekhs well-scripted, if defective, doomsday scenario is presented as if there
were no possibilities other than those he provides. Indeed, he goes even further
to assure us that Even when a society does not travel all the way in this direction, the impact of hate speech can be considerable. It legitimizes and generates
pressure for discrimination against the target group and provides moral support and encouragement to those inclined to discriminate. The target group is
unable to relax and lead a life without fear and harassment. Is There a Case for
Banning Hate Speech, in Hate Speech, supra note 65, at 45. However, whether
they have, or have had, any relevance elsewhere in the world neither Waldrons

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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Moreover, the analogy reveals something else about


Waldrons argument that is also problematic, and this has to
do with the idea that millions of individual porn and hate
speech actions operate at the societal level as a slow-acting
poison attacking and destroying the dignity and social
standing of women and minorities. Obviously, a slow-acting
poison, say, arsenic, given in minuscule doses over a long period of time, may well be said to be the cause of a persons
death or illness; but if it is, it is because the body unlike the
mind, is helpless to fight o the poison.141 Waldron wants us
to believe we are in the same position with regard to pornography and hate speech as we are with arsenic, but, again, we
are not because the mechanistic analogy fails, once again, to
incorporate the so-called human element, i.e., mental mediation between the supposed cause and the supposed eect.
Finally, the slow-acting-poison argument fails on a
moral level because the emissions polluter can cite no fundamental right to emit his pollutants whereas the person speaking, writing, or portraying something can; for the latter can
appeal to the free speech principle embodied in the First
Amendment to protect his actions. True in years past, moral
pollution was recognized as a legitimate restriction on expression, but these years are long gone, if for no other reason
nor Parekhs slow-acting speculations have any real currency in North America today. For further discussion of the defects slow-acting speculations possess
for hate speech restrictions, see Chapter III, Section C and Chapter X.
141

Waldrons emissions analogy resembles what elsewhere I have referred to as


the AIDS theory of ideas. Mere exposure to pornographic materials, just as
exposure to the HIV virus, is in and of itself enough to infect you, perhaps permanently. Free Speech and the Zundel Trial, 95 Queens Q. 837, 847-48 (1988).

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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than that a charge of moral pollution could be used to justify restricting almost any expression the content of which
state ocials disapproved.
If pornography or hate speech were like slow-acting
poisons which work their eects over extended periods of
time, it would be possible to isolate them as causes of whatever damage such poisons eect; but, again, the analogy fails
because they are not like poisons, much less slow acting
poisons.142 The harms to the body caused by arsenic can be,
and have been, demonstrated time and time again by observing how the poison works. Moreover, the ill eects of such
poisoning can be both predicted and explained by medical
doctors who are familiar with its workings on the human
body. The same cannot be said about pornography or hate
speech. Dierent people in dierent contexts react dierently to pornography and hate speech; so do dierent societies.143 In Saudi Arabia, Iran and China, where pornography
is banned and punishments are Draconian, violence and discrimination against women are commonplace. On the other
hand, in Japan, Denmark, and Germany where pornography
is commonplace, discrimination and violence against women
142

Waldron is not alone in his use of the poison metaphor. Fellow speech suppressionist, Alexander Tsesis, writes that the phrase [t]he Jews are our misfortune, uttered by Heinrich von Treitschke, became a painful dart with slowacting poison stuck into the heart of Jews. Destructive Messages: How
Hate Speech Paves the Way for Harmful Social Movements 18 (NYU
Press 2002) [hereinafter Destructive Messages].
143

It surely should not be necessary to point out that nowhere in North or


South America did hate speech against Jews take hold in the murderous way it
did in Germany and points east.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


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are relatively rare.144 Nor, contrary to both MacKinnon and


Waldron, does there appear to be any connection between
the increasing availability of pornography and violence
against women as studies of Sweden, Denmark, Germany,
and Japan have shown. And, again, contrary to both Waldron
and MacKinnon, where discrimination and violence against
women in Western societies have been on the increase is
wherever immigrants from the Middle East and South Asia,
predominantly of the Islamic faith, have chosen to settle.145
The explosion of sexual violence that accompanied the migrations of millions of young Muslim males in 2015, quite obviously, has had nothing whatever to do with pornography or
hate speech.
The idea that the alleged poisons of hate speech or
pornography are slow-acting raises other important questions. Given that the main object of Waldrons animus in
this expressive context is the clear and present danger test,
the question how slow over time the acting can be and still
be said to be causal is critical. Indeed, propinquity seems especially important to Waldrons claims about hate speech.
How far back can we go? Can we say, with Alexander
Tsesis,146 for example, that animadversions against Jews by
Martin Luther147 back in the sixteenth century helped
144

Or used to be, until European societies became inundated by young Muslim


males allegedly fleeing from the violence of life in the Middle East and North
Africa.
145

For example, Germany, Sweden, or any other part of Europe the so-called
Syrian migrants have chosen to settle.
146

Destructive Messages, supra note 142, at 12, 25-26.

147

On The Jews and Their Lies from volume 47 of Luthers Collected


Works, available at http://vho.org/aaargh/fran/livres9/Luthereng.pdf.

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cause the Holocaust? Why not, since Luthers diatribe was


certainly one of those many individual slow-acting poisons
that Waldron says over time can cause a large-scale toxic effect? On this argument, Luthers precocious poisonous essay
inserted into history in Germany in 1543 is every bit a candidate for cause of the Holocaust as Mein Kampf. For had Luther, Hitler, and others of their anti-Semitic ilk, been prevented from injecting their slow-acting poisons into German literature, the argument seems to suggest, the Holocaust
would never have happened. But, again, how could we ever be
said to know this? In science, we can duplicate experiments
to conclude that A will cause B whenever a given set of circumstances is present. But history does not permit such duplication because the circumstances are never exactly the
same and, therefore, cannot be re-produced as an experiment.
Moreover, the problem is not simply one of temporal
but spatial connections as well. On Hitlers own admission,
one of the books that intellectually influenced him the most
was not one of Luthers, Wagners, Nietzsches or any other
seminal German figure; it was instead a book by an American, Madison Grant, titled The Passing of the Great Race: or the
Racial Basis of European History,148 a book which Mr. Hitler referred to as his Bible.149 Should this work be classified as
another of those intellectual, if poisonous, emissions that
148

(Charles Scribners Sons 1916), available at http://www.jrbooksonline.com/PDF_Books/PassingOfGreatRace.pdf. As Thomas Sowell notes,


Madison Grants ideas moved far beyondgenteel circles in America. They
were avidly seized upon in Nazi Germany. Sowell, supra note 113, at 36.
149

Matthew Pratt Guterl,The Color of Race in America: 1900-1940


67 (Harvard University Press 2001) as quoted in Sowell, supra note 113, at 27.

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caused the Holocaust? One might surely make such an argument, but, then again, we might say the same about many
other books that took similar positions at the time; most,
but not all, of them products of Progressive or socialist lineage, and almost all of the writers well-connected into the
upper echelons of academic and intellectual thought in the
United States. Francis A. Walker, for example, a leading
economist of the second half of the nineteenth century, described Indians as savages, who were without forethought
and without self-control, singularly susceptible to evil influences, with strong animal appetites and no intellectual tastes
or aspirations to hold those aspirations in check.150 Richard
T. Ely, a Professor of Economics at the University of Wisconsin and a founder of the American Economics Association, said of Blacks that they are for the most part grownup children and should be treated as such.151 Harvard economist Frank Taussig recommended that alcoholics and those
tainted with hereditary disease, as well as irretrievable
criminals and tramps, be segregated, shut up in refuges
and asylums, [and] prevented from propagating their kind,
should it not be feasible to chloroform them once and for
all.152
150

Annual Report of the Commissioner of Indian Affairs to the Secretary of the Interior for the Year 1872 (Washington, GPO 1872) as quoted in Sowell, supra note
113, at 31.
151

Fraternalism vs. Paternalism in Government, The Century Magazine, Vol.


55, No.5, Mar. 1898, at 781, as quoted in Sowell, supra note 113, at 31, available at
https://www.unz.org/Pub/Century-1898mar.
152

Thomas C. Leonard, Eugenics and Economics in the Progressive Era, Journal


of Economic Perspectives, Vol.19, No. 4, (Fall, 2005), at 221, as quoted in
Sowell, supra note 113, at 32. Waldron himself notes a similar sacrifice the

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These are but three examples of a host of similar


statements153 that today would likely be classified as libelous
under Waldrons scheme. Nevertheless, they were politically
orthodox among elite intellectuals in the United States and
Britain154 in the late nineteenth and early twentieth centuries,
lower orders (Chinamen or negroes) so that the higher races can flourish argument by the reverend Hastings Rashdall in a 1907 book on Ethics. Jeremy
Waldron, Dignity, Rank, and Rights, Tanner Lectures on Human Values (Apr.
21-23, 2009), available at http://tannerlectures.utah.edu/_documents/a-toz/w/Waldron_09.pdf, at 251-52.
153

Of immigrants from eastern and southern Europe, Frank Walker also, said:
[t]hey are beaten men from beaten races; representing the worst failures in the
struggle for existence. Methods of Restricting Immigration,Discussions in
Economics and Statistics, Volume II: Statistics, National Growth, Social Economics,
Davis R. Dewey, ed., (New York, 1899), 430, as quoted in Sowell, supra note
113, at 31. Of the same immigrants decked-out in their finest, Progressive sociologist, Edward A. Ross said: they belong in skins, in wattled huts at the close
of the Great Ice Age. These ox-like men are descendants of those who always
stayed behindTo the practiced eye, the physiognomy of certain groups unmistakably proclaims inferiority of type. E. A. Ross, The Old World in the New:
The Significance of Past and Present Immigration to the American People (New
York, 1914), 285-86, as quoted in Sowell, supra note 113, at 29. See id. at 21-43.
154

In Britain, writers on the Left such as John Maynard Keynes, H. G. Wells,


George Bernard Shaw, Harold Laski, Sidney Webb, and Julian Huxley, and on
the Right, Neville Chamberlain and Winston Churchill, were all staunch eugenicistsas was Margaret Sanger, a birth control advocate in the United
States who worried mainly about Blacks reproducing. Sowell, supra note 113,
at 27. See Jonah Goldberg, Liberal Fascism: The Secret History of the
American Left from Mussolini to the Politics of Meaning 470-74

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and they were formative, as well, of racialist views in Germany and elsewhere. Were they to have been banned during
those years, there might have been little discussion of race or
ethnicity and far fewer economists and sociologists. Nevertheless, these books, magazines and other writings can still
be found in libraries, ordered by mail, and accessed over the
Internet. In many cases, the messages of these writings are
far more hateful than Muslims Out! or Niggers Back to
Africa!; and given that the works are more literate as well,
and written by people whose academic, intellectual, and social credentials were of the highest orders, they are certainly
capable of being much more persuasive to anyone mentally
set to receive their messages as gospel than the trashy signs
Waldron frets over.
Should such writings be banned today as libels on
Jews, Poles, Blacks, Indians, or any other identity group under assault as worthy of castration, chloroform, incarceration,
or any other indignity simply because of who they are? Given
the hateful messages contained in them, Waldron should
well be asked, why not? Simply because they are old and
dated cannot be a reason, as old and dated writings became
critically important in the ascendance of the Renaissance and
various other historical periods, and, given his assumption
that old racism dies hard, there is no good reason to think we

(Doubleday 2007). See also Robert Zubrin, Merchants of Despair: Radical Environmentalists, Criminal Pseudo-Scientists, and the Fatal
Cult of Antihumanism 35-92 (Encounter Books 2012) and Thomas C.
Leonard, Illiberal Reformers: Race, Eugenics, & American Economics in the Progressive Era (Princeton University Press 2016). See also Adam
Cohen, Imbeciles: The Supreme Court, American Eugenics, and the
Sterilization of Carrie Buck (Penguin Press 2016).

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are immune today from regressions of a similar nature. Nevertheless, if we were to ban such works, not only would we
likely not be successful, but we could hardly escape the even
greater dangers brought on by the attempt itself. The way
things are today with the Internet and new technological developments taking place almost daily, one would have to establish an international police force armed with the power
and the ability to snoop which, in order to do the job, would
make the powers given to the NSA look impotent by comparison. And, again, even if we were to pursue such a project,
the fact is that many equally, or even more, plausible reasons
can be oered to explain the insecurities and status anxieties
that vulnerables experience in the United States today.
So what can we conclude about the role of hateful expression in bringing about the kind of damage that Waldron
thinks it both has and can? We can certainly agree that such
expression has played some role in bringing about such harm,
but it is not clear whether we can go much beyond such an
obvious unhelpful generality. For what we need to know besides the obvious, is exactly what role it has played, and under what conditions it has played out badly? For example,
was racism (and, thus, racist expression) historically the cause
or the eect of slavery, or did it have little or no necessary
causal relationship to it at all? While ideologues and historians have entered dierent and conflicting answers to these
questions, the answers really should be obvious. Slavery originally had nothing whatever to do with race but was the result
of conquests, with Greeks enslaving Greeks, Europeans enslaving Europeans, Chinese enslaving Chinese, and Africans
enslaving Africans. Indeed, during the Atlantic slave trade
Muslim pirates transported a million or more Europeans to
the Barbary Coast of North Africaat least twice as many
European slaves as there were African slaves transported to

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the United States.155 Inca and Aztec civilizations had welldeveloped appetites for slavery in more ways than one. And,
of course, slavery is still common in many parts of the nonWestern world.156 What is unique about the West is that it
was the first civilization to turn against slavery.157
Do the signs cause the harm, or are they simply eects
of a pre-existing condition? If Waldron enlightens us not at
all on the first, he fails to enlighten us on the second of these
questions as well.
C. Interlude: Alexander Tsesis, Charles Lawrence III, and David Matas:
Slow-Acting Hate Speech as the Cause of Holocausts

But Alexander Tsesis, Charles Lawrence III, and David Matas158 try. Were anti-Semitic writings the cause of the
Holocaust? To be sure, hateful signs obviously contributed to
shaping the attitudes, opinions, and prejudices of those Germans and their East Europe subalterns responsible for it, but
155

Sowell, supra note 113, at 119, referencing Robert C. Davies, Christian


Slaves, Muslim Masters: White Slavery in the Mediterranean, the
Barbary Coast, and Italy 1599-1800 23 (Palgrave Macmillan 2003) and
Phillip D. Curtin, The Atlantic Slave Trade: A Census 72, 75, 87 (University of Wisconsin Press 1969).
156

Ricco Villanueva Siasoco, Modern SlaveryHuman bondage in Africa, Asia,


and the Dominican Republic, Infoplease (Apr. 18, 2001), http://www.infoplease.com/spot/slavery1.html.
157

Sowell, supra note 113, at 118.

158

Hate Jurisdictions of Human Rights Commissions: A System in Need of Reform,


League for Human Rights of Bnai Brith Canada, 2008, p. 5.

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can we say, because of this, that they were the cause of the
Holocaust? Tsesis thinks so. His argument is deeply rooted
in history and social psychology but the driving force of both
is racism, and the cause of racism is the many destructive
messages that over the centuries have embedded themselves
into cultures exposed to them. These messages both create,
reinforce, and entrench racial prejudices, and these prejudices eventually come to reside deep into the social psychology of a population aected by them. Like Waldron, Tsesis
believes that these messages percolate throughout populations over long periods of time in much the same way that
slow-acting poisons work their destructive physical resultsin fact, he uses this very term to describe the process.159 Tsesis book is replete with descriptions of the workings of this process. Turn to almost any page and you will
find elaborate descriptions of how these messages insinuate
themselves into the cultural landscape of dierent countries.
Drawing on examples from Martin Luther to Hitler in Germany, the removal of Indians from their tribal lands and racism (along with slavery and segregation) in America, to slavery in contemporary Mauritania, Destructive Messages is overloaded with varied descriptions of one and the same message:
it is that misethnicity160 of one kind or another has buried
159

Destructive Messages, supra note 142, at 18.

160

Misethnicity is hatred toward groups because of their racial, historic, cultural, or linguistic characteristics. It is the irrational, unsubstantiated, and unjustified antagonism toward an entire, identifiable ethnic or racial group [and]
entails consistently disapproving, hypercritical, and oft-reiterated generalizations about groups and persons belonging to them. Tsesis says he prefers misethnicity to prejudice, racism, or ethnocentrism because it synthesizes
them and more accurately describes the context of racial and ethnic group animosity. Id. at 81.

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itself deep into the collective consciousness, sub-consciousness, or unconsciousness of whatever society it is permitted
to insinuate itself; and it will insinuate itself in any society if
authorities permit its free and open expression. Hate speech
laws are, therefore, needed to check it.
Essentially the same argument is proered by Charles
Lawrence III in The Id, the Ego, and Equal Protection: Reckoning
with Unconscious Racism. Like Tsesis, Lawrence is interested
in the way racism insinuates itself in a society, specifically,
American society. And one of the chief problems he sees in
dealing with it is the legal doctrine that it is necessary to
prove a racially discriminatory purpose to challenge a facially neutral law.161 Lawrence, by contrast, favors a disparate
impact standard in such cases, first, because a motive-centered doctrine of racial discrimination places a very heavy,
and often impossible, burden of persuasion on the wrong side
of the dispute; and second, because the injury of racial inequality exists irrespective of the decisionmakers motives.162
The reason a specific intent standard is unwise, Lawrence
says, is because racism is buried so deep in our culture that
we often do not recognize it for what it is. And we fail to recognize it because racism is both a crime and a disease, and
this illness of racism infects almost anyone.163 At the same
time, most of us are unaware of our racism, and how it af-

161

39 Stan. L. Rev. 317, 318 (1987) [hereinafter Ego], citing Washington v. Davis 426 U. S. 229 (1976).
162

Ego, supra note 161, at 319.

163

Id. at 321. To the extent that this cultural belief system has influenced all of
us, we are all racists. Id. at 322.

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fects our actions because it is not part of our conscious experience: a large part of the behavior that produces racial
discrimination is influenced by unconscious racial motivation.164
Thus, to require proof of conscious or intentional
motivation in racial discrimination cases not only ignores
much of what we understand about how the human mind
works. It also disregards both the irrationality of racism and
the profound eect that the history of American race relations has had on the individual and collective unconsciousness. Stereotypes of Blacks as lazy or unintelligent are ingrained by the media, and an individuals parents, peers, and
authority figures into the cultural unconsciousness where
they become transmitted by tacit understandings.165 To get
at this embedded racism, Lawrence says, we need a new test
to trigger judicial recognition of race-based behavior. He
calls it the cultural meaning test:
This test would thus evaluate governmental conduct to determine whether it conveys a symbolic
message to which the culture attaches racial significance. A finding that the culture thinks of an
allegedly discriminatory governmental action in
racial terms would also constitute a finding regarding the beliefs and motivations of the government actors.166

164

Id. at 322.

165

Id.

166

Id. at 324.

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Moreover, even if they are unaware of their racist beliefs,


the mere fact that the actors are themselves part of the culture, they presumably could not have acted without being
influenced by racial considerations.167 On this presumptive
logic, since the culture is racist, anyone raised in it will likely
hold racist beliefs, and will find it very dicult to elude a racial discrimination charge. Given such assumptions and despite protestations of innocence, one should expect conviction rates to run roughly 100 percent!
As I noted earlier, Lawrence is a double-standard censor when it comes to speech. Given what he thinks about
racismthat racism is all around us and is a disease that infects us all even as we are unaware of ithow can any of us
ever be said to be freed of it, including Lawrence himself?
This is, I think, an insurmountable problem for his hate
speech theory just as it is for his racial discrimination argument. But there is a deeper flaw that aects both his and
Tsesis arguments for censorship that neither seems to recognize.
Both Lawrence and Tsesis present arguments to show
that racism (Lawrence) or misethnicity (Tsesis) are so deeply
rooted in the culture, so all-pervasive in the daily and ordinary lives of people, that passing a hate speech law of whatever nature would do absolutely nothing to counteract the
problem as they see it. Both Tsesis and Lawrence find racism
(or misethnicity) reposing in childrens stories and games that
they play as well as in books, newspaper articles, court deci-

167

Id. at 324, 355.

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sions, radio programs, jokes, and even in the unintended microscopic168 slights and insults people lay on each other in
everyday life.169 Tsesis, for example, finds the communication
outlets for misethnicity in popular media, jokes, education,
and other modes of daily interactions that legitimize the deliberate maltreatment of minorities. Targeted groups are
stereotyped negatively and the negative images are passed
along from generation to generation.170 Bigots propagate
prejudices for popular consumption through everyday discourses, news items, movies, fables, and books. It is found,
as well, in folk tales, pop fiction, and comic books. Even
some classics are tainted by racism: Dostoyevskys novels,
for example, are spotted by xenophobic and anti-Semitic
Russian nationalism. Anti-Semitism abounds in mediaeval

168

The concept of microscopic racism, sexism, etc., is currently very fashionable. Indeed, there is a website called The Microagressions Project which invites and lists the complaints of people who believe they have been the victims
of unintended but hurtful statements by friends, relatives, co-workers, salespeople, and just about anyone else, as they try to negotiate their everyday
lives in safe and fuzzy spaces. Microaggressions, http://www.microaggressions.com/about/ & http://www.microaggressions.com/. Even encouraging
someone to like the music of The Beatles has been labeled a microaggression.
Katherine Timpf, Professor: Trying to Make Me Like the Beatles Is a Microaggression, National Review (Dec. 29, 2015), http://www.nationalreview.com/article/429052/the-beatles-microagression-professor. For a return to sanity, see
Heather MacDonald, The Microaggression Farce, Autumn 2014,
http://www.city-journal.org/html/microaggression-farce-13679.html.
169

Ego, supra note 161, at 317-18, 339-44.

170

Destructive Messages, supra note 142, at 86-87.

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writings that portray Jews as Christ-killers; or, as in Chaucers Canterbury Tales, as killers of Christian children, or as
ruthless money-grubbers as Shylock in Shakespeares Merchant of Venice, or simply as base and low as exemplified by
Fagin in Dickens Oliver Twist. Moreover, misethnicity can
make people despise themselves and their own: Children
learn negativism toward their own group from media, friends,
and books.171
In a sympathetic review of Tsesis book, W. Bradley
Wendell put his finger on its main shortcoming, and it is one
that applies as well to Lawrences work:
As an optimist, Tsesis believes legal institutions
can be reformed to address the problems of stereotyping, discrimination, ethnocentricity, racial
scapegoating, and intolerance. Because these pathologies have such complex etiologies, however,
an adequate legal response must end up targeting
a vast domain of expression, including childrens
books that play to stereotypes, much of the
Western canon of literature, jokes, and popular
music, movies, and television shows. Because
hardly anyone can claim not to be involved at
some level with the perpetuation of pervasive cultural stereotypes, Tsesis proposal spreads a layer
of blame that is a mile wide and an inch deep. In
moral terms, this diusion of responsibility risks
turning into a process of collective exoneration
for the genuine evils of racism. For, as Hannah
Arendt has argued, where all, or almost all, are
guilty, nobody is.
171

Id. at 96-97 and 110-11.

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In short, Tsesis may be right that racism touches everyone,


and that violence can spring from a climate of acceptance of
racist beliefs, but he is not justified in concluding that legal
sanctions ought to be applied on the basis of that complicity.172
Wendell thinks that Tsesis is right to focus on the
normative issues involved in the hate speech debate, but that
his thesis is vulnerable to the argument that the criminal law
is too blunt an instrument to deal with the diuse, nuanced,
and unconscious racism that critical race theory scholarship
has uncovered so eectively.173 The exact same criticism applies to Lawrences unconscious racism argument: when racism is so pervasive and subtle that it becomes ordinary, expected, and invisible to those who are complicit in itthe legal system is forced to regard everyone as guilty, or to focus
only on the most egregious cases of people who act on racist
beliefs. Tsesis [and Lawrence] favor the former, but the
ironic result is that by deeming everyone guilty, his [their]
conception[s] of complicity in the harms of racism excludes
everyone.174
David Matas takes a slightly dierent approach but
with similar results. He claims that there is a direct link between incitement to hatred and the worst violations of human rights:
172

The Banality of Evil and the First Amendment, 102 Mich. L. Rev. 1404, 140708 (2004)(notes omitted) (reviewing Alexander Tsesis, Destructive Messages (2002)).
173

The Banality of Evil and the First Amendment, supra note 172, at 1408.

174

Id. at 1409.

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The Holocaust did not begin with censorship. It


began with hate speech. Auschwitz was built with
words. The killing fields of Cambodia were sowed
with slogans. The genocide of Rwanda was spread
by radio. Bosnia was ethnically cleansed by television. The power of words to incite to genocide
was recognized by the Supreme Court of Canada
in the case of Mugesera v. Canada.175
But is there a direct link between incitement to hatred and
the worst violations of human rights? Certainly not in the
cases Matas lists, for in the above instances the connection is
anything but direct. In fact, at best the linkages are both
obscure and indirect. To say that the Holocaust began with
hate speech or that Auschwitz was built with words is, on
the one hand, as we have just seen, to reduce a complicated
set of historical events to only one possible cause, and, on the
other, to render the horrific banal.
The connection between hate speech and the Holocaust is, in one sense, very simple and very direct: surely,
those involved in the mass murder of millions of Jews must
175

David Matas, Bloody Words: Hate and Free Speech 6-7 (Bain & Cox
2000). Nowhere does Matas indicate what type of speech qualifies as hate
speech. He does not isolate insults, epithets, or threats, for example, and restrict the term accordingly. In fact, he chooses not to restrict the term to any
category of expression other than the catch-all: the hateful. We can assume,
therefore, that Matas argument is meant to catch any expression he believes is
hateful and directed against some minority group. Indeed, his argument about
the Holocaust demands this interpretation. See Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100.

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have had the idea of murder in their heads before they carried it out, and, surely, speech hateful of Jews was in some
way or another important to planting that idea. But what
have we learned by these observations? Not that hate speech
is the sole, primary, or even an important cause of the Holocaust only that it was in some way or other directly involved.
In and of itself, hate speech, like pornography, has no
causal powers, so it is not literally true that words built
Auschwitz any more than it is true that pornography subordinates or guns kill people.176 People built Auschwitz using
bricks and mortar. True, many of those behind the construction of the camp were inspired by and instilled with hateful
ideas they previously formed on their own or gleaned either
from books, speeches, and conversations with others, but,
again, it is dicult to say with any degree of certainty which
set of books, speeches, or conversations, or, even, whether
any books, speeches, or conversations were paramount in any
given case.
Moreover, if the Holocaust began with hate speech,
when did it begin? As mentioned earlier, Tsesis takes it all
the way back to Luthers time and Luthers texts.177 Is this
also Matas timeline?178 Perhaps not, but if it is, 400 years is

176

Although, see Chapter XI.

177

Destructive Messages, supra note 142, at 12, 25-26.

178

He appears to have at least a two year time frame in mind in his treatment of
the Rwandan genocide saying that the speech by Leon Mugesera, which he believes was the most significant agent causing the full blown genocide, occurred almost two years before the fact. Matas, supra note 175, at 18-19.

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an awful long time frame for hate speech to produce its results. If it isnt, we have every right to askas we would
about which speech, say, caused the Russian revolution or
any other world-shattering historical eventexactly which
instances of hate speech caused the Holocaust, when, where,
why, and how? Moreover, what about the many, more plausible, non-expressive candidates for causal consideration that
Matas argument (as well as those of MacKinnon, Tsesis, and
Waldron noted earlier) simply ignores, such as:
the Versailles Treaty, the hyperinflation of the
1920s, the mass carnage and traumatic impact of
Germanys defeat in World War I, the strength
of the Social Democratic Party prior to the Third
Reich, the special role of Austrians in both the
formulation and implementation of the Holocaust, the fear of communism in the wake of the
Russian Revolution, or any number of other social and economic factors that are commonly considered to have contributed to the Holocaust.179

179

Anuj Desai, Attacking Brandenburg with History: Does the Long-Term Harm of
Biased Speech Justify a Criminal Statute Suppressing It?, 55 Fed. Com. L. J. 353,
363-64 (2003). C. Edwin Baker suggests that a causal claim about racist hate
speechat least as a contributing cause within a longer chain of causation
seems intuitively very plausibleOf course, such expression is unlikely to arise
out of nothing. Material conditions and social orientations that are not themselves equivalent to the expression of racism are also likely to be a central part
of the causal chain. The operative question, for Baker, as for Bradley Wendell,
is where in this causal chaina legal order should target its interventions.
Hate Speech, in Hate Speech supra note 65, at 68.

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To which I would add the censorship policies of Imperial


and Weimar Germany which, certainly, helped to expand the
list of Hitlers congregants. As Detle Muhlberger has observed, the many bans on Hitler speaking in public in the
mid-1920s were very useful to the Nazis as they were deployed to portray an image of Hitler as a heroic martyr as
well as a victim of the Weimar Republic.180
Be this as it may, nothing other than hate speech
holds pride of place in Tsesis or Matas arguments. Hate
speech appears as the sole cause of the Holocaust in both arguments.181 One would have thought that Matas himself
would have recognized this weakness in his argument, given
that he acknowledges that hate speech was (and still is) present in Canada while nothing at all resembling the Holocaust
has occurred there.182 But he doesnt. He is adamant in his
claim that Hate propaganda laws work by attacking the root
180

Hitlers Voice: Organization and Development of the Nazi Party


110 (Peter Lang 2004).
181

Curiously enough, commentators who focus on the rhetoric of the Nazis as a


cause of the Holocaust, rarely train their sights on the writings of Marx, Engels,
Lenin, Stalin, or Mao as causes of well-over one million murders of their own
citizens by regimes bearing fealty to communism in the twentieth century. Are
we to believe that there are good and bad totalitarianisms? Stefane Courtois, et. al., The Black Book of Communism: Crimes, Terror, Repression (Jonathan Murphy trans., Harvard University Press 1999).
182

True, Matas mentions the internment and deportation of Japanese Canadians and the steadfast Canadian refusal to grant asylum to Jews fleeing the Holocaust as particularly shameful episodes in Canadian history, but he advances
no evidence to show that hate speech was the (or even a) causal factor.

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causes of individual human rights violationswhich causes,


like Waldron, he locates in the absence of anti-hate propaganda laws. Like other suppressionists, his line of argument is
that the open circulation of racist or ethnically based hate
speech causes racist or anti-ethnic attitudes which in turn
cause racial or ethnic violence; but he apparently never stops
to ask himself what causes racist speech? He simply assumes
(wrongly) that as a causal agent it is at once singular, unproblematic, and easily identifiable.183
Of course, neither Matas nor Tsesis nor Lawrence nor
Waldron are alone in focusing on the toleration of hate
speech as the principal cause of racial and ethnic violence.
Long before them, as David Kretzmer has observed, Gordon
Allport claimed to see a similar interplay between racist
speech, racist attitudes, and racial violence, identifying five
stages in the progression of racial prejudice: antilocution,
avoidance, discrimination, physical attack, and extermination.184
It was Hitlers antilocution that led Germans to
avoid their Jewish neighbors and erstwhile
friends. This preparation made it easier to enact
183

Matas, supra note 175, at 22. Catharine MacKinnon makes exactly the same
monocausal error in attributing sexist attitudes and sexually based violence to
pornographic words and images. See, e.g., Only Words, supra note 39. See also
the criticism of MacKinnons epiphenomenal approach by Nadine Strossen in
Strossen, supra note 134, at 265-79.
184

David Kretzmer, Freedom of Speech and Racism, 8 Cardoza L. Rev. 443, 463,
quoting Gordon Allport, The Nature of Prejudice 14 (Addison-Wesley
Pub. Co. 1954).

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the Nuremberg laws of discrimination which in


turn made the subsequent burning of synagogues
and street attacks on Jews seem natural. The final
step in the macabre progression was the ovens at
Auschwitz.185
Others, as well, have argued that hateful expression is the
first in a long line of steps along a pathway to violence. Way
back in 1965 the Cohen Committee issued a report on hate
propaganda in Canada which concluded that However small
the actors may be in number, the individuals and groups promoting hate in Canada constitute a clear and present danger
to the functioning of a democratic society. For in times of
social stress such hate could mushroom into a real and monstrous threat to our way of life.186 Indeed, claiming a direct
link between hate speech and racial or ethnic discrimination
and/or violence became something of a cottage industry for
speech suppressionists ever since the mid-eighties and early

185

Kretzmer, supra note 184, at 463, quoting Allport, supra note 184, at 15. Was
the culprit here antilocution as such? Or was it the fact that the antilocution
at issue was Hitlers? Whatever his view here, Allport concluded that group libel legislation was not an effective remedy against prejudice whereas more
speech was. Kretzmer, supra note 184, at 469.
186

Report of the Special Committee on Hate Propaganda in Canada, (Ottawa,


Queens printer)(1965), at 24. This is like saying we have a hate speech problem
now because we might have one in the future. For a refutation of the Committees Report, see my Gitlow Redux: Bad Tendencies in the Great White North, 48
Wayne L. Rev., 1101, 1149 (2002) [hereinafter Gitlow Redux].

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nineties.187 Nevertheless, just as has been the case with attempts to demonstrate a causal connection between exposure to violent pornography and sexual violence, no such direct link has been established between hate speech and racial or ethnic genocideat least none that turns out to be
anything other than long-term,188 indirect, and entirely speculative.
To conclude, the argument that the poison of hate
speech slowly working its damaging eects over time is the
sole or primary causal agent behind some of the most horrific
events in history suers from the problem that there are too
many non-speech candidates for the job coupled with the
fact that the likely expressive candidates are a mile wide and
an inch deep, making it impossible to pinpoint them with
any degree of exactness. Despite the uselessness of hate
speech laws when it comes to dealing with deeply rooted rac187

See, e.g., the writings of Matsuda (Public Response to Racist Speech, supra note
43); Lawrence (Ego, supra note 161); and Delgado (Words that Wound, supra
note 40).
188

Note: the United States has never had a federal anti-hate speech law,
though, after World War II a few states enacted group libel statutes (only Massachusetts, Montanas, and Minnesotas are still on the books), and the country
has never fallen prey to cataclysmic violence of the sort found in Europe in the
1930s. Nor was there ever any solid reason to suggest that Canada would fall
prey to such violence. For an expansion of this argument, see my Gitlow Redux,
supra note 186, at 1146-53. See Walker, supra note 26, at 75-100. See also Bill
Kenworthy and Beth Chesterman, Criminal-libel statues, state by state, First
Amendment Center (Aug. 10, 2006), http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state/.

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ism, to show that they care and that they are doing something, prosecutors often end up targeting poorly educated
and under-resourced folks who are reduced to sending messages either from their parents basements or from a cave of
their own choosingnot exactly the element likely to incite
a Holocaust but certainly an easy target for harassment.189
D. Hate Speech Laws of No Effect When Needed
If we dont know which expressive events, if any,
caused the Holocaust, we know, with certainty, that antihate speech laws were no antidote. Both Imperial and Weimar Germany had anti-hate speech laws which were thoroughly ineective. As the late A. Alan Borovoy has pointed
out:
Remarkably, pre-Hitler Germany had laws very
much like the Canadian anti-hate law. Moreover,
those laws were enforced with some vigor. During
the fifteen years before Hitler came to power,
there were more than two-hundred prosecutions
based on anti-Semitic speech. And, in the opinion
of the leading Jewish organization of that era, no
more than 10 percent of the cases were mishandled by the authorities. As subsequent history so
painfully testifies, this type of legislation proved
ineectual on the one occasion when there was a
real argument for it. Indeed, there is some indication that the Nazis of pre-Hitler Germany
shrewdly exploited their criminal trials in order to
increase the size of their constituency. They used
189

For more on such harassment, see Chapter IX.

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the trials as platforms to propagate their message.190


Indeed, as noted earlier, Hitler, himself, exploited these laws
to increase the size of his following.191 Are things much dierent in Europe today? Clearly, things are nowhere near as bad
as they were in the 1930s, but this does not mean Europe has
the look of a well-ordered society. In fact, Europe is awash
in hate speech lawsalmost all 47 members of the Council of
Europe have them in one form or another. Nevertheless, as
one commentator observes: While the histories of entire societies are anything but controlled experiments, the experiences of western European stateswhere anti-Semitism, rac-

190

When Freedoms Collide: The Case for our Civil Liberties 50


(Lester & Orpen Dennys 1988) [hereinafter When Freedoms Collide].
During the inter-war period, many European countries had restrictions on hate
speech, and the activities of communist, fascist, and anarchist groups, which, as
it turns out, did little good. See Walker, supra note 26, at 49-52. Though he
does not think it must be the case, Matas says There is no question that the
Weimar hate speech laws failed. Matas, supra note 175, at 86. Nevertheless,
there are still some who believe, falsely, that Weimar was a free speech paradise. See, e.g., Eric Heinze, who speaks of the unbridled freedom to utter racist
and antisemitic hate speech under the Weimar Republic. Wild West Cowboys
versus Cheese-eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech, in Extreme Speech and Democracy, supra note 87,
at 202.
191

Aryeh Neier, Defending My Enemy: American Nazis, the Skokie


Case, and the Risks of Freedom 165 (Dutton Books 1979). Matas agrees.
Matas, supra note 175, at 85.

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ism, and xenophobia are all alive and wellare certainly consistent with the hypothesis that legislation is not an eective
means to deal with hatred.192 And if we follow Tsesis argument that anti-Semitism was embedded deep within the cultural roots of the German Volk, it is no wonder that a surface
attempt to eliminate it by the use of hate speech laws would
be doomed to failure.
E. Indeed, Some Countries Were Relatively Immune
There are other problems with the slow-acting poison
argument. It seems to require a population already predisposed to its workings and not just because of hate speech.193
Just like the global claim that pornography causes discrimination and violence against women, the idea that hate speech
causes hateful outcomes ignores cross-societal comparisons.
Given that anti-Semitic literature was readily available
throughout the West, and given that various other countries
were inundated with it, in some cases as much or more than
192

Austin Dacey, The Future of Blasphemy: Speaking of the Sacred


in an Age of Human Rights 84, 95 (A&C Black 2012).
193

Matas argues, with Daniel Goldhagen, that the reason Weimars hate speech
laws failed was because Antisemitism was endemic to Weimar Germany.
Daniel Goldhagen, Hitlers Willing Executioners: Ordinary Germans and the Holocaust 82 (Knopf 1996) as quoted in Matas, supra note
175, at 87. However, like Tsesis, Matas never asks how, if it was so widespread,
hate speech laws would be of any effective use. Moreover, he never even explains why it was so virulent in Germany but not as virulent, or as destructive,
in other countries in Europe which would have had access to many of the same
materials. Nor, for that matter, does he take the argument a step further and
ask what aspects of German experience were responsible for the hate speech in
the first place.

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Germany, why was it that only some countries carried vicious


anti-Jewish policies into execution? True, there were anti-Semitic elements operative in most West European, and even
North American, societies, but it was only in Germany and
parts of Eastern Europe that the horrors of the Holocaust
took deep roots. Canada, the U. S., Britain, Denmark,
France, Holland, Belgium, Sweden, and Norway, for examples, all had fascist fifth-columnists working within them
along with ample supplies of anti-Semitic publications, but in
none of the West European countries were these elements
successful in causing serious diculties until they were conquered by the Nazis, and even then, some countries (e.g.,
Denmark) put up an active, if non-violent, resistance. So why
did anti-Semitic writings receive the reception they did in
some countries but not others, and why did some countries
resist passing laws and other measures discriminating against
and penalizing Jews but not others? More likely there were
factors at work (cultural, social, economic, political, and legal) other than hate speech, and it was these non-speech factors that made all the dierence.
Again, it is, of course, obvious that anti-Semitic writings and speeches had some part to play in bringing about
the Holocaust.194 The problem is to determine what part
they played, and how important they were in relation to
other everyday and deeply rooted, non-expressive causal candidates. Nothing that Waldron says about the slow-acting
poison of hate speech lends any help in this regard; in fact, it
makes their identification more dicult.

194

See, e.g., Destructive Messages, supra note 142.

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F. Waldrons Causality Argument:


Bad Tendency in Disguise
As noted above, the main animus of Waldrons slowacting poison argument is the clear and present danger
test or, perhaps, its current, more or less similar, Brandenburg incitement test, according to which advocacy cannot be
proscribed except where [it] is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.195 Waldrons argument against both line
drawing tests is in large part directed against their present
and imminence requirements. In terms of his preferred
metaphor, it is as if both tests ask us to wait for the slowacting poison to engulf our bodies completely before we are
permitted to attempt to administer an antidote.
G. Gitlow v. New York and the Bad Tendency Test
When considered in terms of previous arguments for
censorship, the test Waldron is urging upon us to replace the
two above is the long-since discredited Bad Tendency test,
195

Brandenburg v. Ohio 395 U. S. 444, 447 (1969). Not just the United States
has an imminence requirement, India does as well. According to the Supreme
Court of India, The anticipated danger should not be remote, conjectural or
far-fetched. It should have proximate and direct nexus with the expression.
The expressionshould be intrinsically dangerous to the public interest. In
other words, the expression should be inseparably locked up with the action
contemplated like the equivalent of a spark in a powder keg. S. Rangarajan v.
P. J. Ram, (1989) 2 S. C. R. (2) 204, 226 (India). See also Peter Molnar, Towards
Improved Law and Policy on Hate SpeechThe Clear and present Danger Test in
Hungary, in Extreme Speech and Democracy, supra note 87, at 237-64.

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enunciated most clearly by Justice Sanford in 1925 in Gitlow


v. New York.196 The case involved a conviction under New
Yorks 1902 Criminal Anarchy Act passed in the aftermath of
President McKinleys assassination. Gitlow upheld the constitutionality of the statute. In relevant part, the law made it
a felony to advocate, advise, or teach the duty, necessity or
propriety of overthrowing organized government by force or
violence or to print, publish, or knowingly circulate any written or printed matter that does. Benjamin Gitlow, a member
of the leftist faction of the Socialist Party, was convicted for
advocating the impugned doctrine by writing a tract called
The Left Wing Manifesto and, as business manager, for
printing, publishing, and knowingly circulating and distributing a paper called The Revolutionary Age which contained the Manifesto.
Gitlow was not charged with addressing an angry
crowd and inciting them to act upon the Manifestos advice.
Hence, the problem, as the state saw it, was not that there
had been, or likely would be, an immediate threat to civil
peace resulting from the Manifestos circulation. Indeed, the
Court itself conceded that [t]here was no indication of any
eect resulting from [its] publication and circulation. And
various parts of the document itself explicitly seemed to rule
out any call for urgent action of a violent sort. The revolutionary epoch of the final struggle against Capitalism, the
author(s) exclaimed at one point, may last for years and tens
of years.197 Gitlow, therefore, was not a case involving incitement in the narrow sense of inflamed rhetoric directed on
site to an audience ready and willing to act in the here and
196

Gitlow v. New York, 368 U. S. 652 (1925).

197

Id.

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now, nor was it a case which involved any such action attempted or carried out in the immediate past. It was a case
of extreme leftist rhetoric directed mainly to party members
and workers attempting to persuade them of the need to
take direct action at some date in the future, perhaps even
tens of years down the road. So, as far as Gitlow himself
was concerned what was at stake was not a revolution in the
here and now and, thus, there could be no legal basis for any
sanction.
Nevertheless, as Sanford saw it, the danger from Gitlows Manifesto was substantial: utterances advocating the
overthrow of organized government byunlawful means are
so inimical to the general welfare and involve such danger of
substantive evil that they clearly may invoke the states police powers. Such utterances threaten breaches of the peace
and ultimate revolution as their natural and inevitable tendency, and it matters not one whit that these events are both
speculative and remote:
the immediate danger is none the less real and
substantial, because the eect of a given utterance cannot be accurately foreseen. The state
cannot reasonably be required to measure the
danger from every such utterance in the nice balance of a jewelers scale. A single revolutionary
spark may kindle a fire that, smouldering for a
time, may burst into a sweeping and destructive
conflagration. It cannot be said that the state is
acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it
seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the
conflagration. It cannot reasonably be required to
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defer the adoption of measures for its own peace


and safety until revolutionary utterances lead to
actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment,
suppress the threatened danger in its incipiency.198
Even though we cannot accurately foresee the eect
of a given utterance, its danger is nevertheless immediate as
well as real and substantial. This is because utterances have
tendencies, and, again, we should look to their tendencies
to project their eects. The danger is immediate because
the potentially far o eects of utterances are contained in
these tendencies. Like the mature oak implicit in the acorn,
the bad eects (or final causes) of utterances are immanent in
the ecient causes or utterances themselves. All that is necessary to bring about their bad eects are the right conditions or circumstances. The bad tendency test is, thus, a kind
of telos which, according to Sanford, is played out over time.
Implicit in the utterance is, thus, the destructive conflagration. The process begins with the expression, or revolutionary spark, which may kindle a fire, which smouldering for a time, may burst into a sweeping and destructive
conflagration. Given this temporal progression, it would be

198

Id. at 669. See also Frohwerk v. U. S. 249 U. S. 204 (1919), where Holmes
uses the same fire metaphor to discuss the effects of circulating a newspaper: it
is impossible to say that it might not have been found that the circulation of the
paper was in quarters where a little breath would be enough to kindle a flame and
that fact was known and relied upon by those who sent the paper out. Id. at
209 (emphasis added).

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suicidal to wait until the danger was imminent to institute repressive measures against it. Far better it is to suppress it in
its incipiency.
Waldron has a similar set of speculations though he
repudiates them in some parts of his argument. Here is his
response to Georey Stones rejection of content-based restrictions as betraying a lack of trust on the part of the government that citizens will be able to make wise decisions if
exposed to hateful expressions:
Legislatures that enact such laws are fearful of the
consequences of the reception of this kind of content. They fear that members of vulnerable minorities wi! become convinced that they are not accepted as good-faith participants in social life.
They fear that isolated racists wi! secure a heightened sense of the diusion of their poisonous ideals. And they fear that ordinary people wi! think
and act on the assumption that the place of minority members in ordinary life is up for grabs. (153,
emphasis added)
Everything legislators are said to fear is the consequence of
tolerating hate speech. These consequences, said to be universally bad, all are thought to repose in a future that is given
no temporal boundary. We are not told that these bad consequences are expected to be imminent, just that pro-hate
speech legislators fear that they will occur sometime in the
future. In short, the fear is entirely speculative; there is no suggestion that anything in the here and now necessarily points
in this direction. Its just that permitting hate speech now
might, at some unspecified time in the future, lead to a socially disastrous outcome.

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Waldron recognizes that these apprehensions may seem


patronizing, for [w]hy cant government presume that the
place of minorities in social life is resilient, even in the face
of a proliferation of hate material proclaiming the opposite?
For him, the question answers itself, particularly in the context of a society that he believes has a history of racism or intercommunal conflict. Nobody knows when that heritage of
hate and conflict is really over. Old fears die hard; old nightmares are never entirely put to rest; old antipathies can
sometimes be awoken. (153, note omitted)
It would have been helpful had Waldron pointed out just
one society in human history that never had any history of
racism or intercommunal conflict. I seriously doubt there
ever was one, but even so, the idea that every society should
pass group libel laws because the end of the heritage of hate
and conflict can never really be determined seems as silly as
it is both far-fetched and utterly unwarranted. It certainly
might be true that some societiesGermany in Western Europe, some Eastern Europe countries, and many Asian, African, and Middle East countriesshould be careful lest some
old antipathies, fears, and nightmares might be
awoken, but it is not clear at all, as earlier argued, that hate
speech statutes of any kind would be preventative, and it is
ludicrous to argue that most Western Europe countries along
with the United States or Canada should restrict their free
expression guarantees on the bare possibility of such farreaching speculative outcomes. Not to Waldron, however,
who, apparently, is convinced not only that these countries
have histories they should properly deplore, but that they

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also, again apparently, are not all that farif they are not already therefrom reprising these awful histories.199 But,
again, nowhere does Waldron point us to a society that has
never had any such conflicts, so on his argument, even the
best of well-ordered societies today would inevitably fall prey
to this defect. Waldron, like Justice Sanford and the Keegstra
plurality, buys wholesale into the argument from bad tendency.
H. The Bad Tendencies of Bad Tendency
One of the problems200 with the bad tendency rationale is that, just as Waldrons causation argument, it is
grounded entirely in speculation, in possibilities heaped upon
possibilities concerning events that may or may not ever happen. In so doing, the test surrenders the free speech right in
the here and now for a future harm that may never arrive.
The idea is that if allowed to circulate openly among the general populace, the harmful tendencies (and, apparently, only
harmful tendencies) contained in certain expressions might
199

The idea that Germany today (2016) is a threat on the world stage to reprise
the racism of the Hitler years is so far from reality as to be absurd. Todays
Germany is so dominated by guilt for its past that it downplays its position in
the EU and is prepared to admit a million refugees from Syria and elsewhere in
the Middle East and Africa to demonstrate its multicultural bonafides. Smart
move, that!as indicated by the 2016 New Years rampage of sexual assaults
on women in Cologne, carried out by young Muslim males. Michelle Martin,
Cologne attacks show Germany unprepared for migrant challenge, Reuters (Jan. 28,
2016), http://www.reuters.com/article/us-europe-migrants-germany-challenges-in-idUSKCN0V6173.
200

I have spelled out various other shortcomings of the bad tendency test in
Gitlow Redux, supra note 186, at 1118-24.

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eventually culminate in social and political disaster. In this


regard, the metaphor Justice Sanford used to express the
problem is instructive: A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a
sweeping and destructive conflagration. Sanford didnt say
the spark wi! result in a destructive conflagration; he said
it may do so, and on this slender speculative reed, he concluded that it was reasonable to suppress the threatened
danger in its incipiency. In other words, we should outlaw
now expression which may never actually create a problem
just because it is possible that, given a certain set of circumstances, it might. Such a test, if permitted, would potentially
impugn just about anything one might say that governmental
authorities think potentially dangerous. Imagine a federal administration of Tendency Analysts combing through the
public discourse to ferret out all those expressive tendencies
they think bad and potentially dangerous to the public order. Does anyone seriously think they would not find such
tendencies in just about any statement the current regime
thinks harmful to its interests? Hey! Thats their job!
Theyre being paid to find those things. Indeed.
That Waldron is thinking along the same lines as Sanford is clear not only from what I said earlier but also from
his approval of what the Canadian Supreme Court plurality
in R. v. Keegstra said about the very real harm that hate
speech causes:
The derision, hostility and abuse encouraged by
hate propagandahave a severely negative impact
on the individuals sense of self-worth and acceptance. This impact may cause target group
members to take drastic actions in reaction, perhaps avoiding activities which bring them in con-

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tact with non-group members or adopting attitudes and postures directed toward blending in
with the majority.201 Such consequences bear
heavily in a nation that prides itself on tolerance,
and the fostering of human dignity through,
among other things, respect for the many racial,
religious, and cultural groups in our society.
Note the italicized weasel words here. (84-85)202 All claims
about the harms hate speech causes are rendered in the language of pure speculation: Not [t]his impact wi! cause but
201

What on earth is wrong with blending in with the majority, particularly if


many in your group are not on a path that will bring longevity and a good opportunity to grow and succeed? This is what is generally called assimilation, and
it is what permitted people from across the world to immigrate successfully to
North America.
202

Waldron might have also quoted other instances of weasel words used by the
Keegstra plurality to illustrate the very real harm that [hate speech] causes.
Asserting with absolute certainty something that ends up being entirely equivocal, it said: It is indisputable that the emotional damage caused by words may
be of grave psychological and social consequence. We are also told that words
and writings that wilfully promote hatred can constitute a serious attack on persons belonging to a racial or religious group. To use the word cause to describe any of these equivocations is just a bit off the mark. Further on we learn
that [i]t isnot inconceivable that the active dissemination of hate propaganda
can attract individuals to its cause (which essentially says, it might be conceivable that ) Still further we learn that the alteration of views held by the recipients of hate propaganda may occur subtly. And furthermore, that even if the
hateful message is outwardly rejected, there is evidence that its premise of racial
or religious inferiority may persist in a recipients mind as an idea that holds

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[t]his impact may cause; not avoiding activities, but perhaps avoiding activities; not and adopting attitudes, but or
adopting attitudes. Nothing about the harms of hate speech
is written in the language of causation; whatever is said is
nothing more than unadulterated speculation masquerading
as causation.203
But, simply because we think words may have harmful
tendencies is no good reason to think they should be suppressed as such with no consideration whatever given to the
context in which they are uttered. For Sanford, just as for
Waldron and all of the other devotees of bad tendency, content not context is the critical variable. The mere presence of
the impugned content is itself the danger. For critics of bad
tendency, on the other hand, speech suppressive laws, whatever their content, give government ocials the power to
some truth, an incipient effect, not to be entirely discounted. Keegstra, supra note
58, at 746-48 (emphases added). For more on this, see my Censorship as Free
Speech! Free Expression Values and the Logic of Silencing in R. v. Keegstra, 36 Alta.
L. Rev. 835 (1988). That any of the above, when it makes any sense at all, is anything more than wild speculation about what may, can, or might conceivably or possibly result from circulation of hate speech rather than what it actually causes is highly doubtful. Unfortunately, this is the way claims about the
harms hate speech causes are just about always expressed. Waldrons speculations are no different.
203

Michael Rosenfeld is another slow acting speculator: The chief disadvantage of the American approach [to hate speech] is that it is not attuned to
potentially serious harms that may unfold gradually over time or have their
greatest immediate impact in remote places. Rosenfeld, supra note 106, in
Hate Speech, supra note 65, at 181.

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round-up social and political undesirables, and that is their


primary purpose.
Sanfords answer to Holmes in Gitlow was that if state
ocials have some rational basis to believe that the danger
from an utterance warrants repressive measures, then no
matter how remote or speculative the danger, no matter how
impotent its contemporary advocates may be to eectuate it,
state ocials may justifiably use their police powers to suppress it. To wait until a putative danger is present at hand
would be foolhardy, for just as it is rational to extinguish a
spark before it can kindle a fire and become a full force conflagration, so it is rational to suppress revolutionary speech
before it results in full scale revolution. The basis for suppression is simply the natural tendency of the speech. Do
the words uttered, as they are ordinarily understood, have as
their natural and probable tendency the bringing about of a
substantive evil?204 If so, and if the eect is intended by the

204

Utterances inciting to the overthrow of organized government by unlawful


means...by their very nature involve danger to the public peace and to the security of the state. The Gitlow majority also says that the First and Fourteenth
Amendments do not protect publications or teachings which tend to subvert
or imperil the government or to impede or hinder it in the performance of its
governmental duties or articles which tend to destroy organized society.Gitlow, 368 U. S. at 630-31 (emphasis added). Such language attributes to words
themselves causal powers that appear to deny altogether any need for human
mental intermediation. In the event, human beings are mere ciphers through
which words work their effects; moral agency is, thereby, rendered nonexistent.
See Chapter XI for further discussion of this issue.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

speaker, then he or she may properly be punished.205


For Waldron, just as for Sanford, utterances considered
harmful down the road must be suppressed now because of
what may result from them as they slowly work their way
along their supposedly poisonous path. (154-55)206 Neither
Holmes nor Brandeis, dissenting in Gitlow, believed there
was any chance that Gitlows redundant discourse could
start a present conflagration.207 Neither, apparently, did
Sanford. The danger lay in the tendencies of the speech, and
what these might produce well into the future. Waldron,
here, is at one with Sanford.
Nevertheless, while he is wrong about speech, Sanford
is certainly right about sparks. Why would you wait until
there is a threat of a general conflagration to put out a fire
when you could have extinguished it as a spark? Unless you
had pyrotechnical tendencies, you obviously wouldnt. However, while it is true that if you let sparks kindle, and you do
205

Many courts applying the test simply inferred intent from the projected effect, as, for example, did Holmes in Schenck: Of course the document would
not have been sent unless it was intended to have some effect, and we do not
see what effect it could be expected to have upon persons subject to the draft
except to influence them to obstruct the carrying of it out. Schenck v. U. S.,
249 U.S. 47, 51 (1919). See also Debs v. U. S., 249 U. S. 211, 216 (1919); Patterson v. Colorado 205 U. S. 454 (1907).
206

In his discussion of coarse, intimidating, or demoralizing speech that might


affect vulnerables, Waldron says: The restriction of hate speech or group
defamation represents an attempt to modify public debate, inasmuch as there is a
chance of its taking on that sort of character. Waldron at 155 (emphasis added).
207

Gitlow, 368 U. S. at 673.

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Chapter IIIPornography and Hate Speech as the Cause of Vulnerability:


The Slow-Acting Poison Argument

not stamp them out, you wi! get a conflagration, it is not


true that if you leave racist, etc., speech free to circulate, you
will have a social conflagration on your hands. Once again,
human beings are not akin to the elements which must obey
the laws of nature, and, once again, the fire metaphor, deployed to express such a necessity, is profoundly misleading.208

As it was in Schenck, where Holmes analogized the metaphor of falsely


shouting fire in a crowded theater and instigating a panic to mailing leaflets to
potential draft inductees. Schenck, 249 U.S. at 52.
208

153

n
IV
State & Society:
Private Individuals as State Officials
In this chapter I shall consider what for Waldron is
perhaps the fundamental issue at stake in the hate speech debate: convincing us that private individuals and state ocials
should be required to work together to provide vulnerables
with the assurances they need to be and to act as respected
members of society. Waldron knows full-well that neither
state nor federal authorities today are free to author the kind
of hate speech that might have been characteristic of some
Southern state governments years back. Today, if we should
encounter signs that say Muslims Go Home! or Niggers
Back to Africa! we can be certain such signs are not the
states doing. Nevertheless, while Waldron knows that state
authorities today cannot legitimately sponsor the kind of
speech he wants targeted, he thinks they have an armative
duty to prevent private individuals from doing so as well.
In fact, he thinks three things which I discuss here.
First, he thinks that every private individual has a moral obligation to accord all other individuals recognition respect,
which means to respect [every]ones entitlement to have
other persons take seriously and weigh appropriately the fact
that they are persons in deliberating about what to do. (87,
note omitted) This doesnt mean, he says, we have to arm
such respect explicitly with signs saying Muslims Welcome

Chapter IVState & Society: Private Individuals as State Officials

or African Americans Allowed; we only have to arm it


implicitly, by refraining from saying or doing anything to undermine the assurance of equal citizenship for all. (87)
Second, Waldrons claim that there is a moral obligation on the part of private individuals to accord all others
recognition respect entails that the government in turn has
an armative obligation to pass group libel statutes to ensure
that members of vulnerable minorities are, in fact, accorded such respect. In short, there is an obligation on the
part of state ocials to ensure that the moral obligations on
the part of private individuals are in fact carried out.
Third, I argue that both of the above obligations further entail that to refrain from passing laws suppressing hate
speech is, implicitly if not explicitly, to promote the very
hate speech it permits. Thus, Waldron, like many other double-standard suppressionists, eectively holds that for the
government to permit speech that libels vulnerable groups
is, in fact, to accept, condone, and promote the messages
they are intended to convey.
To hold the above three positions, I shall argue, is,
first, to blur the distinction crucial to democracy between
private individuals and state ocials, rendering the former
mere handmaidens to the latter; and second, by confusing
mere permission to speak with support for what is spoken,
the argument destroys the very distinction between state action and inaction.

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A. The Moral Obligations of Private Individuals


As noted earlier, Waldron distinguishes between appraisal respect (or respect for a person because of some or
other worthwhile qualities he ostensibly possesses) which
does not create any obligation on the part of others to act towards him in any particular way, and recognition respect
(or respect for the person in deliberating about what to do)
which does. It is the latter which ensures that others are
treated with the respect to which they are entitled as equal
citizens. And while it doesnt require us armatively to do or
say anything that would actively promote the interests of minorities, it does require that we do nothing to jeopardize
their social status or recognition interests.
Anticipating objections from liberal critics, Waldron
says:
I am sure that some readers will balk at this and
say that it is a mistake for me to saddle private
citizens with what is surely a responsibility of government. Is not the manifestation of commitment by government much more important than
the manifestation of the attitudes of citizens to
one another?...Shouldnt the primary vehicle of assurance be the governments resolution to uphold
the laws?...If laws protecting people from violence
or from being driven out of their neighborhoods
are upheld, and if people are confident they will
be upheld, what does it matter if the odd cross is
burned on somebodys lawn?what does it matter
what neo-Nazis say on the placards they carry

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through Jewish neighborhoods in an Illinois suburb? It is law enforcement that matters, not the
cardboard signs. (97-98)209
According to Waldron, this is a false contrast. In no society
is the state able to oer those guarantees on its own account
without a complementary assurance that ordinary citizens
will play their part in the self-application of the laws. (97-98)
And this means that any citizen who relies upon the law is,
in the last analysis, relying indirectly on the voluntary cooperation of his or her fellow citizens. The concern about the
public expression of racist attitudes by members of the public is that they are intimations that certain members of the
public (and those they are trying to influence) will not play
their necessary part in the administration of the laws if they
can get away with it. (99, emphasis added)210 Apparently, the

209

It matters a lot what neo-Nazis say on their cardboard signs just as it matters what counter-demonstrators say on theirs; however, nothing about this requires that the state should ban the signs.
210

Its not clear what the italicized phrase should be taken to imply. Even without supposing they are in possession of the Ring of Gyges, many, if not most,
people would surely not pay all or part of their taxes if they can get away with
it. Moreover, Waldrons claim about playing their necessary parts leaves
open the question: which laws and which set of laws he is referencing? All of
them? Some of them? Which? For example, what about those who think the
First Amendment to the Constitution (a higher law) forbids lesser hate speech
laws? Arent they, by disobeying these lesser laws, playing their necessary part
in the administration of the higher laws just as much as those who obey and

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idea that state ocials can enforce a speech policy in the


teeth of strong, if not total, opposition from members of society is something someone, somewhere, once held; unfortunately, Waldron never tells us who the fool wasor does he?
I know of no intelligent person who does not think
that if it is to be successful, any societybut especially a liberal-democratic societyrequires that a significant segment
of its members support and do not actively undermine its
laws. All societies require their members to obey the law and
carry out their obligations otherwise these societies would
soon dissolve into chaos, but, apparently, according to Waldron, the late Ronald Dworkin did not agree. Dworkin, he
says, thought all this is a matter for government; that it is
the government that must show equal concern and respect
for its citizens[b]ut the citizens have no such obligation.
(99)211 Waldron allows that there is something to be said for
even actively and openly support the lesser laws? For more on this issue, see the
discussion of the Danish cartoonists at Chapter IX and Chapter X.
211

Dworkin makes this claim in Liberalism, in Stuart Hampshire et al., Public and Private Morality 125 (Cambridge University Press 1978): the government [is required to] treat all those in its charge as equals, that is, as entitled
to equal concern and respect. That is not an empty requirement: most of us do
not suppose that we must, as individuals, treat our neighbors children with the
same concern as our own, or treat everyone we meet with the same respect. It is
nevertheless plausible to think that any government should treat all its citizens
in that way. Dworkin sharpens this point in his Reply to Jeremy Waldron:
Waldron seems to assume that the government owes equal concern and respect
to all members of the political community because every member of the com-

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Chapter IVState & Society: Private Individuals as State Officials

the division of private and public responsibility in


Dworkins claim that it is reasonable for private individuals
to accord more concern and respect to their parents and children than to strangers, but as stated, it is too simple because [g]overnment is not an entity separate &om the people, not
in the formation of its policies or the enactment of its laws,
and certainly not in the discharge of its distinctive responsibilities. (100 emphasis added) So the reason why private individuals have obligations to accord recognition respect to
vulnerables is that private individuals are public persons
just like government ocials.
But in what sense are they public persons? Waldron
cant mean that private individuals are actually ocials who
run the government since that would be plainly false. In a liberal-democratic society, private individuals do not formulate
munity does, even as private individuals[but there is a] crucial difference between the rights and responsibilities of governmentour responsibilities when
acting collectively and coercively in politicsand our responsibilities as individuals operating within the structure of coercive lawBut I need not: I do not
owe you or your children the concern, when I act as an individual deploying my
own resources, that I show to my own children or to myself. Government may
not adopt any ethical convictionany opinion about the true basis of human
dignityand enforce that view against dissenting citizens. It must recognize
the right of ethical independence. But recognizing that right means that no individual citizen may be forced to accept any official ethical conviction or be
prevented from expressing ones own dissenting convictionsLiving in a just
[well-ordered] societya society whose government respects human dignitymeans that I must accept the right of others to hold me in contempt.
Hate Speech, supra note 65, at 342.

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policy; their representatives do. Nor do private individuals


execute the laws; only members of the elected or appointed
executive are charged with that responsibility. Finally, whatever Waldron means by discharge of its distinctive responsibilities, the phrase certainly cannot mean that the public at
large is responsible for discharging these responsibilities as
his own reference is to the governments distinctive responsibilities. However, before we can ascertain what Waldron
conceives to be the proper relationship between the government and the people, we must find out whether Waldrons
main thesis is correct: do private individuals have any moral,
much less legal, obligation to accord other private individuals
recognition respect?212
Again, recognition respect diers from appraisal respect, in that it does not address ones estimation of a person by their virtues, vices, crimes, views, merits, and so on.
Recognition respect does not address anything specific about
another person save that he or she is a human being in deliberating about what to do and, therefore, worthy of respect.
Such respect, Waldron says, is fundamental to the dignity of
persons and which is invariant, even governing how they are
to be treated when they are guilty of terrible crimes. So, if I
read him right, not only state ocials, but private individuals,
212

In arguing that they do, Waldron is following in the footsteps of Steven J.


Heyman: Although individuals have a right to take part in public discourse,
they also have a duty to respect other citizens as equal participants in that discourse. In other words, it is not enough that the state should view individuals as
free and equal; citizens must also view one another in this light. The word
must in conjunction with the word duty suggests that the duty is a legal requirement. Free Speech and Human Dignity 175 (Yale University Press
2008)(emphasis in original).

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are to take seriously and accord all others, no matter how


awful they behave, however nasty may be their crimes, or
how dangerous they may be to the interests of others or to
the common interests, recognition respect, simply because
they are human beings in deliberating about what to do.
For us to accord them this form of respect means that we
recognize our obligation to play our part in societys accordance of recognition respect for one another. (87)
As stated, the argument is hard to fathom. At best,
this obligation to accord recognition respect is so abstract as
to be meaningless. Given that it has nothing whatever to do
with any individual virtue or accomplishment, or any other
measure of individual worth or worthiness, and given that it
is to be given to the worst among us as well as the best, what
is there about a person that should lead us as private individuals to accord him or her any form of respect? The mere
fact that another is a member of the human race is not
enough to support the heavy load of respect this abstraction is to carry. For, on Waldrons argument, there is nothing
about another person to respect except his or her humanity,
and ones human status is nothing more than an underlying
abstract substance separate from his or her particular attributessort of like a peg on which we hang the clothes of our
individuality. However, what can command our respect
about a person without any individual attributes whatever?
What kind of person is it that has no individuality, nothing
to mark him as dierent from anyone else, and who is nothing more than a thing or substance?213
213

The same argument would apply if we considered a person strictly as a member of an identity group; in fact it would be the mirror image of the racist, etc.,

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Chapter IVState & Society: Private Individuals as State Officials

Nothing about such an abstracted person demands


respect. We respect or disrespect people because of qualities
they individually possess that we value or disvalue. In so doing, we do not detach the qualities from the person; we consider the person and his or her qualities as one; as a whole
person thick with attributes, and this is true whether we are
proering appraisal or recognition respect. Why should
the mere fact that someone is a person in deliberating what
to do require me to respect him?214 Other things being equal,
I certainly should respect his right as a person to deliberate,
but I am not under any obligation to support the conditions,
substance, or outcomes of that deliberation. Why should
recognition respect change this? Why are we necessarily
required in our public dealings with one another to refrain
from acting in a way that is calculated to undermine the dignity of other people? (60, emphasis added) Maybe the dignity of the particularized other should be undermined.
Just to name a few, I certainly wouldnt mind seeing the dignity of committed Nazis, Communists, Islamists, and pedophiles undermined. Shouldnt Waldron agree?
Moreover, it is not clear from Waldrons argument
what sorts of things undermine a persons dignity or social
and legal status. Many things I might do or say seem to fit
argument which takes as the only essential attribute about a target to be the
group to which he belongs.
214

Why anyone should be given any kind of respect because they are persons
in deliberating about what to do is puzzling. In Mein Kampf, Hitler, a fellow
citizen of Pastor Martin Niemoeller, was a person in deliberating what to do
about the Jews. Should the good Pastor have given the Fhrer recognition respect, or should he have put a bullet in his brain instead?

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into this category. Suppose I know that someone is hiding


his membership in some violent neo-Nazi group and go public with this information. Surely, this would undermine his
social status, at least among most people. The samehopefullymight be true of the outing of a member of the Communist Party. Likewise, a member of al-Qaeda or ISIS who is
outed likely would have his legal as well as social status undermined. In each case, an individual has his social and/or legal status undermined simply because he is a member of a
group and simply because I report that fact. Now suppose I
write a flyer saying that Islam is less a religion than a reactionary, politically subversive movement that treats women
as sub-human, and which, if permitted to operate freely
and openly, will attempt to undermine democracy and install
Sharia. Such is similar in many respects to what many Americans thought about Communists in the 1940s and 1950s.
Should I be prohibited from saying so? Who is to judge? The
police? The courts? It is not clear what special competences
either have to make such decisions. But if they have none,
why are these better placed than I or my auditors to make
that determination?215
215

A French court in 1995 convicted renowned Middle-east historian, Bernard


Lewis, of trivializing the Armenian genocide. The master historians on that
court concluded that Lewis was wrong to say there was no serious proof of the
Armenian genocide, and that he failed in his duties of objectivity and prudence by expressing himself without qualification on such a sensitive subject,
and that his remarks, which could unfairly revive the pain of the Armenian
community, are tortious and justify compensation of a couple of Francs and
costs. Bernard Lewis, Armeniapedia, http://www.armeniapedia.org/wiki/Bernard_Lewis. Obviously, judges have no particular competence to decide the
truth of claims about complex and emotionally charged historical events like

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There are other diculties that arise when one is


speaking about large groups of people. One is, how are we to
determine whether a statement is fact or opinion? Muslims
are evil is a statement of opinion not fact, and while it may
be derived from, and limited to, ones experience, it is still an
opinion and should be protected as such. Even statements of
factual matters that are so outrageous as to be unbelievable
are today protected for similar reasons.216 Moreover, political
discussion is often a mixture of fact and opinion making it
very dicult at times to say which is which. Still further, political discourse as such is often geared to undermining the
social and, perhaps, even legal status of ones opponents.217
Thus, to import a group libel statute into democratic political debate, especially given its group specific basis, is to
threaten anyone who dares to venture into any discussion of
matters that touch the interests or identity of these groups
with a criminal investigation, arrest, prosecution, and, perhaps, conviction. As Justice Black said about Illinois group
libel statute in Beauharnais:
genocides. Just as obviously, its better to have these things determined by
knowledge rather than power. See also Paris Court of First Instance, June 21,
1995, RP L 860, No. 12 (France), at http://www.armenian-genocide.org/Affirmation.240/current_category.76/affirmation_detail.html.
216

Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988).

217

As Justice Stevens pointed out in his review of Waldrons book, it is not


silly to treat groups of private figures similarly to individual public figures.
[A]s is the case with critical comments about public figures, comments about
groups are more likely to concern issues of general public interest than are
comments about individuals. The concern about chilling valuable speech on
such topics is significant, as it was in Sullivan. Stevens, supra note 3.

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For here it is held to be punishable to give publicity to anyprinted matter which a judge may find
unduly oensive to any race, color, creed or religion. In other words, in arguing for or against the
enactment of laws that may dierently aect huge
groups, it is now very dangerous indeed to say
something critical about one of the groups.
However, as Justice Jackson said about democratic
political discourse in the same case, When any naturally cohesive or artificially organized group possesses a racial or sectarian solidarity which is or may be exploited to influence
public aairs, that group becomes a legitimate subject for
public comment.218 Group libel statutes chill such expression; they do not encourage it, in part because they are naturally expansive in their coverage, and in part because we can
never be certain where any given authority will draw the lines
between legitimate and illegitimate discourse about protected groups.219
B. The Governments Duty to Ensure Respect:
Governors and the Governed
According to Waldron, one of the governments distinct responsibilities is to ensure that private individuals
carry out their moral obligation to accord vulnerable minorities the same recognition respect that is due any other
group. Indeed, this is the very point of passing group libel
laws in the first place. Without them, racists, homophobes,
and Islamophobes would be free to flood the public sphere
218

343 U. S. 250, 301 (1952).

219

See Chapter VIII and Chapter IX.

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Chapter IVState & Society: Private Individuals as State Officials

with their hateful publications, and vulnerable minorities


would be forced to encounter them as they go about their
daily business deliberating about what to do. The moral obligation on the part of private individuals to accord recognition respect to others would be hollow and ineective were
there not an obligation on the part of the government to enforce that obligation. Without that guarantee, minorities, on
Waldrons argument, would be, like the denizens of Hobbes
natural condition,220 open to assault at any time with only
their own wherewithal to protect them. The passing of group
libel laws is, thus, intended to take them out of that condition, and to protect them from the damage caused by allegedly libelous publications. Thus, the moral obligation on the
part of private individuals to accord vulnerables recognition
respect requires the government to act armatively to protect that right by passing such laws. Inevitably, this relationship is seen by Waldron as an agreement between the people
and the government, each to do its part to provide the respect all citizens are due.
Of course, Waldron doesnt really believe that all individuals in the not-very-well-ordered society share the same
attitudes ideas, etc., as right-thinking government ocials
because he thinks that publication of certain ideas, values,
and attitudes on the part of some individuals should be prohibited by means of group libel statutes. What he ultimately
desires is a partnership between the government and a! private individuals to work together in lockstep to attain in
practice the public good of assurance. This is what he

220

Actually, if you think of it, this is exactly the condition Waldron thinks vulnerables are in absent the protection of the sovereigns hate speech laws.

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means when he says that Government is not an entity separate from the people. Private individuals are, thus, under a
pre-existing moral obligation to work hand-in-hand with the
government to provide this assurance, or, at least, not to obstruct it:
because assurance is a low-key background thing,
the prime responsibility for its provision that falls
on the ordinary citizen is to refrain from doing
anything to undermine it or to make the furnishing of this assurance more laborious or more dicult. And this is the obligation that hate speech laws or
group defamation laws are enforcing. (93-94, emphasis in original)
So what the governmental responsibilities of private individuals actually amount to is that they should simply stand
out of the way and omit doing anything that would undermine, make more laborious, or more dicult the responsibility on the part of the government to furnish vulnerables their needed assurance. In other words, they should
partner with state ocials to oer this assurance. What
role is left here for dissent from that responsibility either in
itself or its particulars221 is not clear. Presumably, its limits

221

How far do these obligations bind? Waldron says they apply to anything that
undermines, makes more laborious, or more difficult the objective of assurance.
Waldron never says; but since it will be the government that determines the extent of the obligation, the entire business is indeterminate. Moreover, whatever
the extent of their obligations, the role of individuals in Waldrons well-ordered state is, either to cheerlead the governments efforts, or to shut up and

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Chapter IVState & Society: Private Individuals as State Officials

would be defined by how broadly or narrowly state ocials


define words such as undermine, make more laborious, or
more dicultwhere none of these terms in themselves
carry any baseline measure. But, surely, any person who challenges the recognition respect obligation by speaking out in
opposition to it in however nicety of tone may plausibly be
said to undermine, make more laborious, and more dicult the states task of providing such assurance.222
Waldrons argument here has important consequences for democracy as well as for freedom of expression.
To hold that the expressive role of private individuals is to
cooperate with the governments agenda by not undermining
it or making it more laborious or more dicult is not only to
consign the fate of speakers to the interpretive whims of
state ocials, it is also to restrict their expressive roles to
making the governments job easier. This last has the proper
let it do whatever it thinks necessary without hindrance from them. For a current example of a country that requires a individuals to partner with the state
on joint ventures in support of its policies, see Paul Joseph Watson, Coming
To America? China Introduces Credit Score For Citizens, Infowars (Dec. 21,
2015), http://www.infowars.com/coming-to-america-china-introduces-creditscore-for-obedient-citizens/.
222

As Justice Brandeis said of advocating syndicalism in Whitney v. California,


Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the probability. Propagation of the
criminal state of mind by the teaching of syndicalism increases it. Advocacy of
law-breaking heightens it still further. 274 U. S.. 357, 376 (1927) (emphases
added).

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Chapter IVState & Society: Private Individuals as State Officials

relationship between the government and the people in a democracy exactly reversed. In a democracy, the government
exists to serve the people; the people do not exist to serve
the government by furthering its agenda. Moreover, consistent with this anti-democratic and speech suppressive argument, Waldron concludes that besides a moral obligation
to accord vulnerables recognition respect, private individuals also have a legal obligation not to obstruct in any way the
governments attempt to provide vulnerable minorities the
assurance of equal citizenship. The legal obligation not to
obstruct is what he is referring to when he says that this is
the obligation that hate speech laws or group defamation laws are
supporting.
This obligation not to obstruct is certainly an odd
injunction coming from a supposed democrat; for it says
that, as far as the free speech rights of citizens are concerned,
there can be no distinction between governors and the governed, at least where the question of according vulnerables
recognition respect is concerned. For to claim, as Waldron
does, that Government is not an entity separate &om the people,
not in the formation of its policies or the enactment of its
laws, and certainly not in the discharge of its distinctive responsibilities, is, as I suggested, to claim that private individuals are actually a part of the government every bit as
much as any state ocial. However, as Steven G. Gey has argued: Without that separation [between governors and governed], democracy cannot exist because there is no group capable of popular consent to the governments exercise of
power.223 For if a government is not an entity conceptually
separate from the people, there is no entity positioned to
223

The Case Against Postmodern Censorship Theory, supra note 130, at 242.

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call it to account. How could the people turn out any government, vote in a new one, or keep the current government
in place without being an altogether dierent entity, conceptually and functionally, and assessing its work externally from
a critical distance? Furthermore, if the people and the government are one and the same, then there also can be no
private or social space separate from the public or governmental. On this argument, the interests as we! as the ideas, values, attitudes, and actions of the people must also be those of
the government. Governmental censorship of hate speech is,
thus, a form of mind control used to ensure that whatever
the people think, believe, or do is consistent with what governmental ocials believe they should think, believe, or do.224
Moreover, if state ocials are empowered to determine the legitimacy of the topics that private individuals may
discuss along with the viewpoints they may legally hold about
each other, then not only would democracy be a word without much substance, but so also would be the vaunted free
224

Waldron denies that defenders of hate speech laws [want] to get inside peoples minds (Waldron at 33), but his entire enterprise, if it is to be successful,
demands that the government concern itself with the beliefs and preferences of
its subjects, if only to make certain they are not actively hostile to the joint
partnership. A well-ordered subject is one who holds the right opinions about
assurances to minorities. Isnt this the very purpose of group libel laws? They
arent there simply to club not-so-well-ordered-subjects into submission
are they? And if you dont want to get inside peoples minds, why be concerned about the circulation of flyers etc., in the first place? Why is it important to drive hate underground? To whom are you conveying the impression that the bigots are isolated, embittered individuals (Waldron at 95) and
why even care, if you are not concerned with what they think?

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expression guarantee. The representatives of the people


would be in a position to dictate to the people at large the
boundaries of acceptable speech whether about them and
their policies or about private individuals. Democratically
speaking, this has it exactly backwards. It would allow any
particular group that managed to capture the levers of government the power to control what may be said of them or
their favorite groups whenever they believed it to be, say,
threatening, abusive, or insulting. Moreover, with such
power in the hands of government ocials, sections of the
public may well be expected to fight for the right to wield
that power in order to bring about whatever expressive regimes they happen to preferquite possibly not those preferred by Waldron or his fellow travelers. In the event, on
governmentally targeted issues anyway, there would be no
free speech at all.
Unlike illiberal societies, the free and democratic society is not one that subordinates the interests of the individual to those of the state or, for that matter, denies that individuals have any legitimate identity or other interests apart
from those considered proper by the state. Hence, it separates the obligations of private individuals from those of
state ocials. Because state ocials possess the authority to
make and enforce the law whereas private individuals do not;
because, as well, these ocials exercise a degree of power far
outstripping that of any non-state actor; and because free
and democratic societies are based on the intelligent assumption that unchecked power inevitably corrupts those possessing it, it is also unwise to empower these ocials to regulate the content and viewpoints of messages up for discussion
in the marketplace of ideas. On the one hand, the clear lesson from all this is that the temptations of oce are too
great to entrust state ocials with such power and, on the

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Chapter IVState & Society: Private Individuals as State Officials

other, that independent moral agents cannot surrender the


power to make their own choices in the market without also
surrendering their individual moral and political agency as responsible democratic citizens.
If I am lega!y required publicly to treat all other private individuals or the groups to which they belong as equals
and as equally valuable, I am, for all practical purposes, a
quasi-public ocial. I would dier from other state ocials
only in that I would have no say about any expressive matters
they may deem hateful. I would not be free in public discussion to consider members of protected groups in ways that
cast aspersions on their status as equals, even if, contrary to
governmental orthodoxy, I believe the relevant groups are
dangerous and harmful to state interests. I must not treat
protected group members in any way that impugns their status as equals, or deviates from the way the dominant state
discourse treats them.225 Given the vagueness and elasticity of
such laws, and given the inflammatory nature of the issues,
such foolishness can cause the country great danger, not the
least because such laws prevent me from speaking out against
groups that I might think are dangerous to national security.
Even apart from security concerns, hate speech legislation,
which purportedly treats everyone as equals, actually treats
both speakers and targets as lesser beings and insults the dignity of both.

225

Looked at from another perspective, I must treat them as unequals, as people


so victimized, so ground down, and so pathetic that they need paternalistic
state authorities to protect them from verbal slights.

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Chapter IVState & Society: Private Individuals as State Officials

Moreover, if the government is not an entity separate from the people, why is it that legislators have free
speech rights lacking to the people? As has been true in the
English-speaking world from 1689, legislators have the right
to speak on the floor of Parliament without any criminal liability whatever.226 While Waldron believes private individuals
may be prosecuted for undermining the assurance to be accorded vulnerable groups, it is not true that any legislator
may be criminally sanctioned no matter how nasty or libelous
his or her speech may be as long as it is made in the legislative chamber. Waldron to the contrary, government is and
must be an entity separate from the people if the society is to
be free and democratic. The idea that government ocials
and private individuals are partners in a project to rid the
world of hate speechwhatever the term is said to include
smacks more of good old German Gleichschaltung, or Soviet
Partinost applied to the entire society by the regimes respective transmission belts, than it does of liberal democracy.
Waldrons joint venture is not an uncommon recommendation in leftist circles in the United States and Europeas long, of course, as the venture is in support of the
Lefts agenda. In Europe the requirement that private individuals accord the equivalent of Waldrons recognition respect to vulnerables is called a horizontal obligation (individual to individual or group to group) as opposed to the
226

The English Bill of Rights reads: The freedom of speech and debates or
proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament. The Bill of Rights (1689), 1 Will. & Mary,
sess. 2, c.2. The United States Constitution says of Senators and Representatives: for any speech or debate in either House, they shall not be questioned in
any other place. U.S. Const. art. I, 6.

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Chapter IVState & Society: Private Individuals as State Officials

vertical obligations that obtain between the individual and


state authorities. Though expressed in dierent terms, the
idea is essentially the same as Waldrons: individuals are required to tolerate (accept and respect) members of vulnerable and disadvantaged groups and to say or do nothing
which would subvert or undermine their status as determined
by elite actors. For example, a proposed Model Statute to enforce such a venture was presented to The Civil Liberties,
Justice and Home Aairs Committee of the European Parliament. The statute holds that tolerance must be practiced not
only by governmental bodies but equally by individuals, and
that the [g]uarantee of tolerance must be understood not
only as a vertical relationship (Government-to-individuals)
but also as a horizontal relationship (group-to-group and person-to-person). Moreover, just as does Waldron, the Model
statute holds that [i]t is the obligation of the Government to
ensure that intolerance is not practised either in vertical or in
horizontal relationships.227 Exactly how far these nosy leftist

227

Yoram Dinstein, Ugo Genesio, Rein Millerson, Daniel Thurer, & Rudiger
Wolfrum, A European Framework National Statute for the Promotion of Tolerance, available at http://www.europarl.europa.eu/meetdocs/2009_2014/documents/libe/dv/11_revframework_statute_/11_revframework_statute_en.pdf
(emphases added). The authors and supporters of this Framework have a rather unusual definition of tolerance: Tolerance means: respect for and acceptance of the expression, preservation and development of the distinct identity
of a group. (1d). Accordingly, not only are we required to accept and respect
the group, but we also must respect and accept the way they express, preserve,
and develop their group identities whatever these may be or entail. However, this
tolerance requirement does not apply across the board, for in 4 (f), ii the au-

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Chapter IVState & Society: Private Individuals as State Officials

Eurocrats would go to ensure the elimination of intolerance is unclear only because, as the totalitarians they are
mimicking, they specify no limits to the endeavor.
thors announce that There is no need to be tolerant of the intolerantespeciallyas far as freedom of expression is concerned: that freedom must not be
abused to defame other groups. Thus, according to the self-identified tolerant individual, there can be no tolerance for the intolerant!
In many places, this document positively reeks of authoritarian thinking. Like
all supposedly well-meaning authoritarians who seem to have little or no understanding of the evils of censorship, these lefties, like Waldron, have a multitude of human frailties on their agenda to eliminate: racism, colour bias, ethnic
discrimination, religious intolerance, totalitarian ideologies [!?], xenophobia,
anti-Semitism, anti-feminism, and homophobiaas if all these designations
are both self-defining and self-applying. The Frameworks agenda also involves
setting up a National Tolerance Monitoring Commission to monitor the implementation of the so-called tolerance regime, and to recommend penal
sanctions, education and media coverage. [6 (c)] Victims of crimes [!] will
have standing to sue perpetrators, and will be supplied Free legal aid. [7
(e)(f)] Schools, from primary levels upwards, will introduce courses encouraging students to accept diversity and promoting a climate of tolerance as regards
the qualities and cultures of others. [8 (a)]
Finally, denying any intent to censor the media, it will establish a mass media
complaints commission to ensure that public television and radio stations devote a prescribed percentage of their programmes to promoting a climate of
tolerance; it will encourage private stations to do so as well; and encourage all
the media to adopt an ethical code of conduct to prevent the spreading of
intolerance. There you have it: intolerance forced upon us by the intolerant in
the name of tolerance! Even Orwells mind would be blown if he still had one.

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Chapter IVState & Society: Private Individuals as State Officials

How far Waldron is prepared to follow the mandates


of the Framework is also not clear; nevertheless, he, like its
authors, argues for a partnership, or joint venture, between
right-thinking governors and right-thinking individuals to
suppress the published expressions of those benighted sections of the populace that are not yet compliant with the
proper governmental directives. The goal is to get everyone
to think pretty much alike on all issues that bear on questions of equal citizenship involving vulnerable minorities,
and, given that the society currently lacks the required wellorderedness, this requires state mandated censorship until it
does. But, of course, given that old fears die hard; old nightmares are never entirely put to rest; [and] old antipathies can
sometimes be awoken, (153) this may also be never.
So the point of censorship is to get private individuals
to think the way government ocials doto the extent the
latter think rightly.228 Again, Waldron does not think the
censorial burden unduly onerous as it can be met simply by
not undermining the eorts of right-thinking people to provide assurance to vulnerable minorities, or by refraining
228

Are all government officials right-thinking? Not likely, but if some are not
and they get control of the government, what then? Waldron does not appear
to have devoted much thought to an eventuality that has in the past, and might
very likely in the future, turn the tables on the idea that we can trust the governments predilections to be the ones we want. Again, censorship with regard
to the expression of government officials is not on the table as legislators, anyway, cant be prosecuted for anything they say on the floor of the House or
Senate. That, plus their ability to pass legislation antithetical to the interests of
vulnerable minorities should it suit them are surely good reasons for vulnerables to eschew the censorial approach Waldron recommends.

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Chapter IVState & Society: Private Individuals as State Officials

from doing things that make the furnishing of this assurance


more laborious or more dicult. Of course, this burden necessarily requires that dissidents refrain from publishing anything that could be interpreted by governmental ocials as undermining the equal standing of vulnerable minorities. Put
more bluntly, Waldrons message from the government actually reads shut up, stand out of the way, let us do our jobs,
and you wont get in trouble. Such a message obviously does
not suggest to dissidents that their concerns are being
treated seriously and with respect, and Waldron does agree
that there are dignity issues on both sides of the argument.
The problem is that he does not take the free speech side as
seriously as the other. He says: [T]he right of free speech is
also an aspect of dignity. And hate speakers might also complain about the indignity of having their speech censored and
being told, like children, what they are and are not to say in
public. Nevertheless, he does not think this attests to the
indeterminacy of the concept because the dignity interests
of the vulnerables trump those of the hate speakers. Why?
Because the latter can always alter the words they use to say
what they want in more civilized tones. (139-40) Whether
Waldrons rebuttal is eective, I shall consider later,229 but,
for now, I shall consider the third reason why Waldron concludes the government has an armative duty to censor hate
speech.
C. To Tolerate Hate Speech is to Promote It
The ideas that private individuals have moral obligations to respect the equal citizenship rights of others, and to
refrain from saying or doing anything that would undermine
229

See Chapter V and Chapter VII.

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Chapter IVState & Society: Private Individuals as State Officials

attempts to ensure those rights, entail, as well, that the government has an armative duty to enforce these obligations
by means of the criminal law. This armative duty, in turn,
requires that governmental ocials must prohibit any expression which they think would undermine those rights because
to permit such expression is, eectively, to promote the message of hate.230 Prohibiting such expression sends two messages. First, it sends a message of assurance to vulnerable
minorities that their status will be protected, and second, it
informs potential hate speakers in no uncertain terms that
their attempts to undermine such assurance will not be tolerated. This set of connections follows from the claim that private individuals and governmental ocials are partners in the
governments well-ordering-through-censorship project,
which partnership, again, is a distinctly illiberal and antidemocratic notion.
Waldrons attempt to Shanghai private individuals to
partner his suppressive agenda is but the flip-side of the toleration is promotion argument. For the same reason that
government suppression of the impugned publications is said

230

Having reviewed Waldrons, Heymans and MacKinnons claims that the


state has an affirmative duty to enforce the moral obligation on the part of private individuals, Austin Dacey concludes that while there may be a moral obligation on citizens to treat their fellows as equals, to act toward another in a
spirit of brotherhood, in the Universal Declarations phrase[this fact] fails to
show that the state legitimately may intervene to ensure this. Dacey, supra
note 192, at 91.

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Chapter IVState & Society: Private Individuals as State Officials

to promote the idea of equal citizenship, government toleration of them allegedly promotes their messages of hate.231
Without being free to circulate, so the argument goes, the
publications would not be able to inflict any damage; thus,
permitting their open circulation when the government
could prevent it by law, eectively, renders the government
complicitous in the harms such speech causes. However, unless
we are prepared to say that that the argument applies only to
hate speech and not to any other exercise of a liberty the
government might permitwhich argument would likely be
ad hoc and unprincipledthen anything that people are permitted to say or publish must also be the handiwork of the
government; so that for the government to permit signs
which say Drink Bosco means that the government is promoting the sale and consumption of Bosco. How can this be?
It follows nicely from the contention that the people and the
government are one.
Just as others of this mindset, Waldron collapses the
distinction between state and society altogether by rendering
whatever is said or done by private individuals also a form of
state action simply because it is tolerated. By permitting such
231

[W]omen are entitled to ask whether official legal tolerance of pornography


and of its pervasive public display is consistent with our commitment to the
dignity and equality of women. Waldron at 92. Perhaps, depending on its
limits, pervasive public display is not consistent with such commitments, but
there are many images and ideas we permit that are not consistent in whole or
in part with our value commitments. Nor, for that matter, is it clear that any
right-thinking person is obligated to accept Waldrons (and MacKinnons) interpretation of the damages pornography causes, if for no other reason than
that the damage is said to be incalculable.

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Chapter IVState & Society: Private Individuals as State Officials

speech, the state is sending a message to vulnerable minorities that they are on their ownthat they can expect no assistance from state ocials to force private individuals to accord them the respect they deserve. Moreover, it is also to
put its ocial imprimatur on the substance of the speech;
saying, in eect, that the government approves the work of
those doing the undermining. Still further, it sends a message to those in the undermining business that they can expect no hindrance to their eorts from state authorities. As
well, to those fellow travelers who may harbor the same hateful views in private, it informs them that they can now come
out of the closet and act as cheerleaders for the hatemongers
in public.232 Finally, tolerating hate speech tells the world our
society is not very well-ordered. In short, for Waldron,
mere toleration of hate speech is a form of state action that communicates to members of vulnerable groups that their
rights to equal citizenship will not be protected, and that the
eorts of those who would undermine their security will not
be resisted. Thus, the entire tolerant enterprise can be described as a joint venture between state ocials and racists,
Islamophobes, pornographers, etc., to render minorities
even more vulnerable than they allegedly currently are.
Nor is Waldron the only suppressionist commentator
laying this claim. Here, for example, is Mari Matsuda:
The third doctrinal pillar supporting racist speech
is the refusal to recognize that tolerance and protection of hate speech activities by the govern-

232

These, of course, are the messages supposedly sent by hate speakers in the
anecdotes that open Waldrons argument. Waldron at 1-3.

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Chapter IVState & Society: Private Individuals as State Officials

ment is a form of state action. To a!ow an organization known for violence, persecution, race hatred,
and commitment to racial supremacy to exist
openly, and to provide police protection and access to public streets and college campuses for
such a group, means that the state is promoting hate
speech. If not for such support, hate groups would
decline in ecacy. The chilling sight of avowed
racists in threatening regalia marching through
our neighborhoods with full police protection is a
statement of state authorizationOpen display conveys legitimacy. The government advances this effect when it protects these marches. In addition,
the failure to provide a legal response limiting
hate propaganda elevates liberty interests of racists
over liberty interests of targets.233
Others have advanced similar claims. Bhikhu Parekh writes
that [w]hen hate speech is allowed uninhibited expression,
its targets rightly conclude that the state either shares the
implied sentiments or does not consider their dignity, self-respect, and well-being important enough to warrant action.234
Charles Lawrence has stated that the government is in a
joint venture with private contractors to engage in the business of defaming blacks.235 So convinced is Lawrence about
233

Public Response to Racist Speech, supra note 43, at 2378 (footnote omitted, emphases added).
234

Is there a Case for Banning Hate Speech?, in Hate Speech, supra note 65, at
44.
235

If He Hollers Let Him Go, supra note 42, at 446.

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Chapter IVState & Society: Private Individuals as State Officials

such ventures that he has even gone so far as to claim that


every time a husband threatens to beat his wife for contradicting him a First Amendment injury has occurred.236 And
convinced of the states complicity with pornographers in
subverting the liberty and equality rights of women, Frank
Michelman has argued:
For the state simply to disregard the subversions
of liberty and equal protection consequent upon a
choice not to regulateto set them aside as of no
accountwhen it knows about those subversions
and knows, too, how to avoid them by regulating,
is for the state to choose to incur those subversions and thereby to cause them by even the
strictest notions of legal causation.237

236

Crossburning and the Sound of Silence: Antisubordination Theory and the First
Amendment, 37 Vill. L. Rev. 787 (1992), 802-03. And Matsuda: [T]he laws
failure to provide recourse to persons who are demeaned byhate messages is
an effective second injury to that person. Public Response to Racist Speech, supra
note 43, at 2379. Lawrence never tells us what we should conclude about First
Amendment injuries when a wife tells her husband to shut up and threatens to
hit him with a frying pan if he doesnt. Oh yes, I forgothe doesnt have to because no First Amendment injury can occur since shes structurally the victim, and hes structurally her oppressor.
237

Conceptions of Democracy in American Constitutional Argument: The Case of


Pornography Regulation, 56 Tenn. L. Rev., 291, 307-08 (1988-89).

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Chapter IVState & Society: Private Individuals as State Officials

Similarly, Irwin Cotler238 has suggested that tolerance of hate


speech risks legitimizing such speech on the grounds that it
cant be all bad if it is not being prohibited. Wayne
Sumner239 has argued that tolerating hate speech threatens
our commitment to political equality: To tolerate it in the
interest of freedom of expression would inevitably be to confer upon it a certain degree of legitimacy. This is something
no society can aord to do, if it wishes to safeguard the status of minorities as equal citizens. More specifically, according to Kathleen Mahoney, the toleration of hate speech is
the Enforcement of inequality and results in injury just as
violence does.240 Even the Supreme Court of Canada has
bought into the argument.241

238

Hate Speech, Equality, and Harm Under the Charter: Towards a Jurisprudence
of Human Dignity for a Free and Democratic Society, in The Canadian Charter of Rights and Freedoms 20-69 (Beaudoin & Mendes eds., 1996). For
criticisms of this state-action-by-inaction argument as well as its companion
affirmative duty to prohibit argument, see my Censorship as Free Speech!, supra
note 202, at 880-83.
239

Hate Propaganda and Charter Rights, in Free Expression: Essays in Law


and Philosophy 172-73 (W. S. Waluchow ed., 1994). But see The Hateful
and the Obscene: Studies in the Limits of Free Expression 195, 200
(University of Toronto Press 2004), where Sumner would seem to repudiate
that position.
240

R. v. Keegstra: A Rationale for Regulating Pornography, 37 McGill L. J., 242,


248 (1992).
241

Keegstra, supra note 58, at 756, agreeing with the statement: Parliament promotes equality and moves against inequality when it prohibits the wilful public

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Chapter IVState & Society: Private Individuals as State Officials

Moreover, in the context of an argument holding that


school boards should fire K-12 teachers who hold allegedly
racist or anti-Semitic views but who never utter them in the
classroom, Raphael Cohen-Almagor contends that to retain
such teachers implies that school boards either condone242
or accept243 such views. He says that if a poisoned environment within a school system is traceable to the o-duty conduct of a teacher that is likely to produce a corresponding
loss of confidence in the teacher and the system as a whole,
then the o-duty conduct is relevant and should be taken
promotion of group hatred on [group] grounds. See also Lared Yegesse Mengistu, Shielding Marginalized Groups from Verbal Assaults without Abusing Hate
Speech Laws, in Hate Speech, supra note 65, at 359: Substantive Equality will
be violated in two distinct situations: first, when hate speech is protected like
any other speech, and second, when hate speech is prohibited across the board
to protect dominant and marginalized groups alike.
242

Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education, Amer. J. Ed., 215 (Feb. 2008) [hereinafter Hate in the Classroom]: For the
Peel Board to hire someone who publicly espouses the view that some individuals are worth more or less than others implies that the board condones such discriminatory views. Id. at 223 (emphasis added). The appellant Attis alleged
that the school board, by failing to take appropriate action against Ross, condoned his racist, discriminatory, and bigoted statements Id. at 226-27 (emphasis added).
243

Thus, the board of inquiry as well as the court accurately found that the
school boardhad discriminated in its failure to take a proactive approach to
the controversy surrounding Ross, thus suggesting the acceptance of Ross
views. Id. at 228 (emphasis added).

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Chapter IVState & Society: Private Individuals as State Officials

into account.244 Indeed, he even suggests that the mere employment of one such teacher is sucient to create a poisoned learning environment not just for a school but for an
entire school district!245
David Matas goes even further claiming that for a
school board to employ an alleged anti-Semite in any capacity whatever is to foster discrimination in society at large by
providing a haven to a hate propagandist.246 And speaking to
the symbolic importance of restrictions on racist speech,
David Kretzmer has argued that a society committed to ideals of social and political equality cannot remain passive: it
must issue unequivocal expressions of solidarity with vulnerable minority groups and make positive statements arming
its commitment to these ideals. Hate speech laws are important components of such expressions and statements.247

244

Id. at 227.

245

Id. For a critical examination of Cohen-Almagors argument, see my Hate in


the Classroom: a Rejoinder, Amer. J. of Ed. 115 (2008).
246

Matas, supra note 175, at 125.

247

Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 456 (1987). These
were ideas the Keegstra court took to heart. Canadas hate speech law is a form
of expression, and the message sent is that is that hate propaganda is harmful to
target group members and threatening to a harmonious society[e]qually, the
community as a whole is reminded of the importance of diversity and multiculturalism in Canada, the value of equality and the worth and dignity of each human person [!] being particularly emphasized. Keegstra, supra note 58, at 769.

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Chapter IVState & Society: Private Individuals as State Officials

So Waldrons version of the joint venture is neither


new nor unusual. What his, as the others, lack is an understanding that a liberal-democracy requires the very conceptual separation between state and society that their arguments deny. The government must be an entity separate
from the people not only for a liberal-democracy to function
but also for a free speech guarantee to have real bite. If the
only expression permitted on a particular political matter is
government-speak, then there is no free speech guarantee for
anyone not in accord with the governments thinking, which
is to say, there is no free speech guarantee at all because the
guarantee, to be of value, must be against government-speak
itself.
D. Is Toleration Promotion?
To what extent is it plausible to say that to tolerate
hate speech is to legitimate its message, promote hatred,
threaten core values like equal citizenship, engage in joint
ventures with racists, commit First Amendment injuries,
or communicate to the world that its targets are fair game? It
is certainly plausible to think that some target group members might feel fear and anxiety over the thought that those
they consider enemies are permitted to vent hostility toward
them or to what they represent. Many Holocaust survivors
have in the past (and still do) experience fear and apprehension when they see Nazi symbols and/or regalia that may represent the horrors they (or those close to them) experienced. Moreover, the vividness of such memories may well
suggest to them that it could happen again. Survivors and
refugees of Communist regimes as well as of other not-soperfectly well-ordered political specimens from Middle
Eastern theocracies might experience similar emotions. The
question is how reasonable are those fears and apprehensions
today?

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Chapter IVState & Society: Private Individuals as State Officials

In developed democracies such as the United States


or Canada, one would think, the likelihood of a social holocaust in which racial or ethnic groups of one kind or another
are seriously threatened by hateful expressions of opinion is,
to state the obvious, not very real. Certainly, there is no clear
and present danger of any such catastrophe and unless one is
unusually sensitive, timid, and fearful of such a catastrophe,
one shouldnt be worried. Nevertheless, I doubt very much
that my assurances against a future social disaster would be
sucient to calm the anxious seas out there. But lets unpack
the claim and see what results.
First, if to tolerate hateful expression is to promote it,
then, unless hate speech is a unique class of expression, the
state would be promoting the message of any speech it tolerates as well as signing on to the appropriateness of any act it
permits. But correct as the logic may be, the result is flatly
absurd; it entails that every time the state oers police protection to a march the state is condoning, promoting, encouraging, advocating, and legitimating the marchs message.
Permitting Stalinists to march would mean that the state is
promoting and legitimating Stalinism. Permitting the North
American Man-boy Love Association (NAMBLA) to demonstrate means it is promoting pedophilia, no less than permitting veterans to march on the Fourth of July means, in some
peoples minds, it is promoting war. But even this isnt ridiculous enough to satisfy those like Matsuda, who would go even
further and argue that simply not banning a disapproved
groupi.e., to permit its legal existenceentails that the
state is promoting or legitimating its impugned message.248
Cohen-Almagor even takes the argument into the classroom,
248

Public Response to Racist Speech, supra note 43, at 2358.

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Chapter IVState & Society: Private Individuals as State Officials

arguing that the mere fact that school boards employ teachers who hold racist views but never utter them in the classroom indicates that the Board condones or accepts such
views.249
The point is that if toleration means promotion, etc.,
then the state is promoting, condoning, and even enforcing250 etc., everything it tolerates, from Aunt Gussies apple
pies to lesbianism or Trotskyism, and this is absurd. At its
root, the toleration is promotion argument fails; first, because it conflates the behavior of private individuals with
that of state ocials, and second, because it assumes the
state is (and perhaps should be) responsible for everything
that is done on its watch.

249

Nor, as I wrote in reply to Cohen-Almagors argument, even if students


or their families felt uncomfortable with the views of a certain teacher or believed that the mere fact of his employment legitimized these views, should immigrant group membersor anyone elsebe in a position to silence his offcampus political expression. To allow someone to silence a teacher because he
is offended by what the teacher says, is to endow that person with a hecklers
vetoan off-campus control over a teachers expression and, perhaps, over his
livelihood. In a liberal democracy those who take offense at a teachers offcampus political activities are free to oppose them with expression of their
own. In any event, they should understand that in a society that subscribes to
liberal-democratic principles the proper way to counteract ideas you despise is
with more speech not censorship. Hate in the Classroom: a Rejoinder, supra note
245, at 174.
250

R. v. Keegstra: A Rationale for Regulating Pornography, supra note 240, at 248.

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Chapter IVState & Society: Private Individuals as State Officials

Liberal-democratic societies must distinguish between the behavior of public ocials and private individuals.
Private individuals are not state ocials (unless ocially authorized in some capacity to act as such), and their expressions legally carry no authoritative weight for any other person. Were the toleration is promotion argument correct,
then every time any private individual said anything at all, it
would also be the voice of the state; for by permitting the expression the state is assumed responsible for it. This argument completely ignores the critical liberal-democratic distinction between ocial and unocial acts, between acts of
public ocials and acts of private citizens and ends up treating expressions of the latter as if made by the former.251
Moreover, the very logic of the toleration is promotion argument assumes that the state is legally responsible for every
251

Critical because it is the very basis upon which the distinction between ruling and being-ruled in liberal-democratic societies is drawn. Legislators, for example, both make the law in their official capacity and are subject to it in their
capacity as ordinary citizens. See, e.g., Jean-Jacques Rousseau, The Social
Contract, Bk I Ch. 6. See also Joseph Tussman, Obligation and the
Body Politic (Oxford University Press 1960). See also Steven G. Gey, who
argues that the entire project of postmodern censors (the Delgados, Matsudas,
MacKinnons, etc.) is to transform the politics of liberal democracies by changing the mindsets of its citizens. For this to occur, the very distinction between
state and society would have to disappear and along with it the public-private
distinction critical to both liberalism and democracy. In fact, Gey argues, if the
postmodern censors get their way, there would be no private sphere at all; nor
could they be said to miss itat least insofar as others might be thought to benefit from it. Waldrons argument in this respect suggests that, at least as far as
hate speech is concerned, he is at one with them. The Case Against Postmodern
Censorship Theory, supra note 130, at 233.

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Chapter IVState & Society: Private Individuals as State Officials

bit of human behavior within its purview and perhaps even


beyond. On this logic, the fact that we are permitted to do
something is simply due to the fact that the state has decided
not to ban it. This view accords with the totalitarian view
that whatever liberties we have we owe to the fact that the
state has not yet decided to prohibit them. It suggests as well
with the positivists that we have no rights that are not specifically granted by the state; much less that we have any rights
against the state at all. Such logicwhich is the logic of the
toleration is promotion argumentis obviously hostile to
human freedom as a default position. It is also paternalistic,
for we are free to do only what we are permitted to do. Such
an argument insults our dignity and whatever level of autonomy we might be thought to possess.
Furthermore, given that the toleration is promotion
argument assumes that state ocials along with pornographers and racists are engaged in joint ventures, it also assumes (somewhat contradictorily) that state ocials have an
armative duty to end such ventures along with the toleration of expression which is said to promote them. Taking the
umbrella of protection away from such expression is, of
course, to criminalize or sanction it in some other way. Thus,
the argument goes; unless they are to be complicitous in the
harms and wrongs caused by hate speech and pornography,
state ocials have an armative duty to ban such expression.
A duty of this sort not only repudiates any distinction between private and public, it also runs foursquare against the

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separation of rulers from ruled that is at the heart of a democracy, and without which the very idea of a democracy
makes no sense.252
Why should anyone the least bit conversant with
Western guarantees of liberty assume that toleration is also
authorization, legitimation, or promotion, etc., of the views
or conduct impugned? The very idea of freedom of expression, for example, entails that everyone is free to publicly express their opinions and the fact that they are, carries no implications that state ocials necessarily share the same views.
In Western societies it is assumed that many people hold
views antithetical to the interests, views, and feelings of others, and having the freedom to utter them is what free speech
guarantees are all about. Many oensive and potentially dangerous things are said daily, often heatedly, in the rough and
tumble of political debate. The idea that one should be encouraged to run to the state to shutter opinions which are
hurtful, opposed to ones own, or hostile to ones (or ones
group) interests, is contrary to the very meaning of freedom
of expression. In a society which subscribes to this principle
it should be taken for granted that everyone has the right to
vent their opinionseven hateful onesas long as there is
no imminent danger of violence to a person or group directly
252

The Case Against Postmodern Censorship Theory, supra note 130, at 242. The
central flaw in the feminist and critical race critiques of the public-private distinction is that these critiques cannot be reconciled with democracys basic
need for some separation between the governors and the governed. Without
that separation, democracy cannot exist because there is no group capable of
providing popular consent to the governments exercise of power.

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caused by those opinions. Anything less is a frontal assault on


liberty.
Finally, the obvious weakness of the logic involved in
arguing that to tolerate is to promote coupled with the
equally obvious fact that a regime of free expression can carry
no torch for any particular set of political messages,253 raises
the question: why have so many otherwise intelligent scholars
fallen prey to the argument? Why have they assumed that the
mere toleration of extremist expression is in fact the condoning or promoting, or even, the inciting to action, of
the cause of the speaker? One possible reason is that it suits
their suppressionist purpose; it is a useful rhetorical device
for shifting the focus of the argument from a principled procedural case intended to protect expression irrespective of its
content or viewpoint to one which is intended to suppress
the hateful or pornographic utterances at issue. The rhetorical question to the civil libertarian, then, is: Are you really
arguing for free speech or are you simply shilling for hatemongers and pornographers? Or how can you support the
rights of racists, Islamophobes, homophobes, or pornographers to pour their filthinto the culture in which we
must all live[?] (176)
To those whose minds are attuned to the substance
rather than the procedural aspects of the issue and who are
suspicious of anyone claiming the reverse, the question answers itself. It answers itself also to those who simply cannot

253

C. Edwin Baker, takes the position that legal toleration implies neither
state neutrality [n]or complacence towardevil views. Hate Speech, in Hate
Speech, supra note 65, at 72.

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believe that anyone could take issue with a cause so obviously just as preventing hatemongers, pornographers, etc.,
from speaking, writing, or filming, and, thereby, undermining
the status of vulnerables as equal citizens bearing equal dignity, possibly even to the extent of destroying the social order. As Holmes said, if you have no doubt of your premises
or your power and want a certain result with all your heart
you naturally express your wishes in law and sweep away all
opposition. Naturally is the key word here. Censorship
ridding the world of the speech you hateis as natural to the
human mind as swatting a pesky fly.
And this is what those for whom toleration is promotion count on. The argument for censorship is concrete,
straightforward, and obvious whereas the argument for tolerance is abstract, complex, and learned. As Holmes said, the
practice of a principled toleration requires an ability to think
beyond the issue and the moment. It requires that we suppress our short-term natural urges to censor what we fear or
hate in the here and now in favor of adopting a longer-term,
more complicated, and principled view of the matter. This
not an easy thing to do; it is far easier simply to give in to the
natural urge and swat the annoying fly. Nevertheless, and despite the natural attraction of the suppressionist argument,
after many fighting faiths have seen their day, some, though
hardly all of us, have come to realize that rather than employ
the power of the state to censor speech we hate, it is better
to leave it to the test of the market. The suppressionist cure
is much worse than the disease.
To sum up, the claim by Waldron and others that private individuals have a moral obligation to accord vulnerables recognition respect, coupled with the claim that the
state has a legal obligation to enforce this moral obligation by

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prohibiting the publication of materials which defame said


vulnerables, leads to the conclusion that failure to ban such
publications indicates that the state armatively approves,
supports and promotes the messages and agendas of those
who publish them. Thus, the bare fact that such materials are
permitted means that state ocials are working in league
with hate speakers to deny vulnerables recognition respect.
If they werent engaged in a joint venture, the objection
goes, they should ban materials which undermine the core
value of equal citizenship.
Nevertheless, the mere tolerance of expression in a
regime committed both to equal concern and respect for all
and to a strong commitment to free expression of opinion
carries no implications whatever of support for any particular
group or cause tolerated any more than would a library that
contains Stalins, Marxs, Hitlers, or Waldrons writings be
promoting communism, Nazism, or group libel statutes.
Moreover, as I have argued, the toleration is promotion argument threatens to deny altogether the separation between
public and private domains which is at the heart of a liberaldemocracy and which has also been an important target of
the radical Lefts agenda for years. Thus, those who would
deny the public-private distinction are not without their own
joint venture; in their case it is to partner private individuals with state ocials in order to enforce the Lefts identity
politics agenda.

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V
On the Wisdom of Partnering With
State Officials About What We May
See, Hear, or Read
The only speech interests Waldron takes seriously are
those of hate speakers or their targets. In all his expressive
conflicts it is the speech interests of hate speakers against
the security and speech interests of the vulnerables. Nowhere in his book does he seriously consider the free speech
interests of auditors, third parties, who have an interest in
hearing what speakers have to say in order to deliberate on
the merits of the expression for themselves.254 Nevertheless,
the dignitary slap in the face that Waldrons group libel
statute delivers is not only, or even primarily, as he suggests,
to speakers but, more importantly, to those who are prevented from hearing what some speaker has to say. In this
254

The only concerns he seems to have about third parties are those of closet
racists, etc., who are possibly encouraged by racist, etc., speakers to keep the
faith and maybe take the expressive leap sometime themselves. Apparently, for
the rest of us, in the case of speech the government brands as hateful, deliberating what to do does not include reading or listening to unapproved marketplace utterances.

Chapter VOn the Wisdom of Partnering With State Officials


About What We May See, Hear, or Read

sense, censorship of the sort Waldron is recommending is an


attack on the very foundations of deliberative democracy.
Citizens deliberating what to do when thinking about who
to vote for or what policies to support, need relevant information to make intelligent choices. Preventing them from
gathering such information is to prefer the wisdom and the
judgment of state ocials to those of the people who elect or
appoint them. It is to assume that state ocials know best
what you should be permitted to see, hear, or read, that you
are not capable of making that decision on your own, and
that the state should make that decision for you. But this is
to turn the arguments for democracy and free expression on
their heads.
A. On the Wisdom and Virtues of State Officials
What reasons have we to believe that state ocials
are any better placed than ordinary citizens to resist being
overcome by corruption, hostility, emotion (or, for that matter, even their own self-interest) in the process of determining which expressions are harmful and which are not, and
which should be suppressed? State ocials come from the
same milieu as other citizens and cannot be expected to be
immune from any of the day to day passions (or interests)
that aect any significant segment of society. Indeed, since
their elective and appointive lives depend on the level of
agreement with their particular constituencies, we can expect
most state ocials to mirror these same passions and interests. To assume otherwise, without any argument supporting
their unique suitability for the task, seems at once both nave
and overly rationalistic.
But surely, even granting that individuals often are
mistaken in their judgments, why should governments be

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thought any more capable? Indeed, given the history of governmental eorts in this regard, they should likely be considered much less capable. As Frederick Schauer argued:
[T]he focus on the possibility and history of error
makes us properly wary of entrusting to any governmental body that authority to decide what is
true and what is false, what is right and what is
wrong, or what is sound and what is foolish. As
individuals are fallible, so too are governments fallible and prone to error. Just as we are properly
skeptical of our own power always to distinguish
truth from falsity, so should we be even more
skeptical of the power of any governmental authority to do it for us.255
Nothing we know about state ocials suggests that
their intelligence is any greater, their motives less cynical,
their characters less corruptible, their love of command any
less firmly established, their inclinations towards zealotry any
less pronounced, their penchants for quick and easy solutions
to complex problems as well as their beliefs that they know
the true, the right, and the good, any less unshakeable than
those of private individuals. But if they are not any better situated with respect to these qualities, why should we grant
state ocials the authority to determine what we are permitted to see, hear, or read? Legislators can be said generally to
be experts at two things: campaigning for oce and getting
elected, neither of which singularly qualify them to make intelligent speech discriminations. Indeed, skepticism about
255

Free Speech: A Philosophical Enquiry 86 (Cambridge University Press


1982).

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governmental competence in this regard is an important part


of the very rationale of free expression.256
That Waldron nowhere oers any arguments about
the natural fitness and/or intellectual, emotional, or moral superiority of state ocials that would justify giving them such
authority should not unduly surprise since such arguments
would be entirely contrary to democratic principles. As Sir
James Stephen put it in 1883 when speaking about the contradiction between the principles of self-government and the
crime of seditious libel:257
If the ruler is regarded as the superior of the subject, as being by the nature of his position presumably wise and good, the rightful ruler and
guide of the whole population, it must necessarily
follow that it is wrong to censure him
openly...and that whether mistaken or not no
censure should be cast upon him likely or designed to diminish his authority.
If on the other hand the ruler is regarded as the
agent and servant, and the subjects as the wise
256

Freedom of speech is based in large part on a distrust of the ability of government to make the necessary decisions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders,
and a deeper distrust of governmental power in a more general sense. But even
absent any judgments about the corrupting influence of power, simple human
fallibility is enough to lead us to be skeptical about any claim, governmental or
otherwise, to censorial omnicompetence. Id. at 86.
257

The following closely tracks my argument in Gitlow Redux, supra note 186, at
1120-21 and 1136-41.

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and good master who is obliged to delegate his


power to the so-called ruler because being a multitude he cannot use it himself, it is obvious that
this sentiment must be reversed. Every member
of the public who censures his ruler for the time
being exercises in his own person the right which
belongs to the whole of which he forms a part.
He is finding fault with his servant. If others
think dierently they can take the other side of
the dispute, and the utmost that can happen is
that the servant will be dismissed and another put
in his place.258
Heres the problem: as Alexander Meiklejohn said, it
is not our representatives who govern us. We govern ourselves, using them. And we do so in such ways as our own
free judgment may decide.259 They are our agents, not our superiors. In order to exercise our electoral function, we need
access to as wide a range of materials as possible and cannot,
consistent with this function, permit state ocials to prohibit what we shall see, hear, or read without at the same
time elevating them to positions of intellectual, moral, and
political superiority.

258

A History of the Criminal Law of England 299-300 (Macmillan


1883), as quoted in Michael Kent Curtis, The Peoples Darling Privilege: Struggles for Freedom of Expression in American History 38889 (Duke University Press 2000).
259

Political Freedom: The Constitutional Powers of the People 3536 (Oxford University Press 1960) [hereinafter Political Freedom].

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Moreover, to authorize state ocials to decide which


speech is or is not dangerous is, in eect, to empower them
to decide controversies to which they are parties.260 State ocials are generally not Mannheims free-floating intellects,
or Mills instructed Minority,261 without partisan interests
of their own to push or with no corrupting connections; just
as anyone else, state ocials have interests they want satisfiedafter all, thats why they entered political life in the
first place. In government they act as political representatives of specific social groups in competition with other social groups, and, thus, they constitute a microcosm of a larger
societal macrocosm. To empower them to decide what
speech may be censored is inevitably to empower the political agents of one segment of society to suppress the expression of another.262
260

Federalist No. 10 (James Madison) at 56.

261

Karl Mannheim, Ideology and Utopia 153-64 (Mariner Books 1955); J.


S. Mill, Considerations on Representative Government (Bobbs-Merrill 1958). Indeed, we are constantly reminded by civic republicans that special
interests are the bane of our politics.
262

Hate Speech, in Hate Speech, supra note 65, at 76: Baker notes that in both
Ethiopia and Rwanda, anti-hate speech laws have been used to punish minorities for simply criticizing dominant groups. Closer to home, no better recent illustration of such corruption can be found than that of the IRS scandal of
2010-14 in which IRS agents from Washington, California, and Cincinnati
abused the powers accorded them and selectively audited Romney supporters
along with Tea Party and other conservative groups in order to refuse or delay
their applications for tax-free status and to protect and serve the interests of
the Obama re-election effort. Kimberley A. Strassel, The IRS Scandal Started at
the Top, The Wall Street Journal (May 19, 2013), http://online.wsj.com/article/SB10001424127887324767004578487332636180800.html. See Gregory

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One way, of course, to avoid the unpleasant consequences that might be thought to attend this situation is to
argue that state ocials as a group are unique embodiments
of morality and wisdom enabling them to rise above everyday
partisan politics, and because of this ability, ought to be
given a free hand to rule. But, again, this argument from superior wisdom and rationality might reasonably be oered by
a Platonist, but it is not available to the committed democrat. And so, to grant state ocials the authority to censor
expression based on its putatively dangerous content eectively stands the free expression guarantee on its head. The
guarantee exists to protect unpopular minorities from the ex-

Korte, IRS list reveals concerns over Tea Party propaganda, USA Today (Sept.
18, 2013), http://www.usatoday.com/story/news/politics/2013/09/17/irs-teaparty-target-list-propaganda/2825003/. See also George Will, The IRS has a onesided interest in politics, The Washington Post (Mar. 7, 2014),
http://www.washingtonpost.com/opinions/george-f-will-the-irs-has-a-onesided-interest-in-politics/2014/03/07/a545366a-a56c-11e3-84d4e59b1709222c_story.html. As if to highlight the adage that justice should not
only be done but should be seen to be done, consider the appointment of a
fox (Obama campaign contributor of $7,000 Barbara Kay Bosserman) to investigate charges that there was something amiss in the Obama IRS henhouse. Matthew Clark, Obama Donor Investigation of Obama Political Scandal is
Scandal Unto Its Own, American Center for Law and Justice (Jan. 9,
2014), http://aclj.org/free-speech-2/obama-donor-investigation-obama-political-scandal-scandal-unto-its-own. Heres more: Stephen Dinan, IRS under fire:
Vote for Obama stickers, campaign cheerleading commonplace, The Washington
Times (Apr. 9, 2014), http://www.washingtontimes.com/news/2014/apr/9/dallas-irs-office-plastered-pro-obama-stickersscr/.

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cesses of social and political majorities, not to allow such majorities operating through their political representatives to
suppress the expression of (and thus oppress) these self-same
minorities.263
If expression can be censored because it undermines, makes more dicult, or more laborious the governments responsibility to assure the equal status of vulnerables, then, as noted earlier, we could reasonably predict a
witch-hunt for (and the censorship of) a broad range of ideological tendencies deemed pernicious by current majorities.
For if it is widely believed that state ocials may rightfully
suppress expression deemed noxious, without any check on
their power to do so other than that they possess an electoral
mandate and have a rational basis for their decisions, then interested groups have every reason to seek to convince state
ocials of the importance of proscribing expression they
find hostile to their perceived interests. Thus, the more the
public becomes aware that state ocials may suppress expression with alleged bad tendencies, the more it is rational
for them to press state ocials to suppress their favorite disfavored candidates. And unless any individual or group
adopted a principled position on free expression refusing any
such censorship across the board, not doing so would be irrational.
To grant state ocials the power to suppress expressions they think dangerous is inconsistent with the principles
of moral agency and responsibility central to the concept of a
free and democratic society. In Thomas v. Co!ins Justice Robert Jackson said:
263

Ronald Dworkin, Taking Rights Seriously 140-44 (Harvard University Press 1977).

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It cannot be the duty, because it is not the right,


of the state to protect the public against false
doctrines. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through
regulating the press, speech, and religion. In this
field every person must be his own watchman for truth,
because the forefathers did not trust any government to separate the true from the false for
us...[T]his liberty was protected because they
knew of no other way by which &ee men could
conduct representative democracy.264
However much suppressionists pay lip service to the concept
of a free and democratic society, they clearly reject the argument Jackson sets forth. They do so because they cannot
abide the risk inherent in the claim that each person is his
own watchman for truthviz., that he or she might conclude wronglyand they believe they can reduce this risk by
regulating what each person sees, hears, or reads. But can
they do so consistent with any valid notion of individual
moral or political agency? The answer, I think, is no.
A free and democratic society presupposes at a minimum that each individual citizen functions in two capacitiesa public capacity as ruler (or voter/citizen) and a private
capacity as the ruled (or subject).265 From this it follows that
264

65 S. Ct. 315, 329-30 (1945) (emphasis added).

265

The argument of this paragraph tracks the self-government approach taken


by Meiklejohn in Political Freedom, supra note 259, though it is worth noting that a roughly similar approach can be found in Jean-Jacques Rousseau,
The Social Contract, Bk. I Ch. 6, and even in Aristotle, Politics, Book

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those state ocials elected by us in our governing capacities


(or appointed by those we elect) are but subordinate agents,
chosen directly (or indirectly) by us to do our bidding rather
than their own. But if this is true, then as individual moral
and political agents performing our governing functions, we
cannot consistently surrender to state ocials (or even to our
fellow citizen-rulers)266 the authority to determine what we
will be permitted to see, hear, or read without also, pro tanto,
surrendering to them both moral and political agency. For to
possess moral and political agency in the context of performing our democratic functions is necessarily to be individually
responsible for what we think, what we say, what we do, and,
as far as we can control it, what is done in our names. To
III. It is implicit in the quote from Free Speech: A Philosophical Enquiry
noted earlier at supra note 256.
266

It is perhaps the single greatest weakness of Meiklejohns overall argument


that his strong communitarian animus against individualistic premises leads
him, as Bollinger notes, to decry censorship on the part of state officials (our
mere agents) while effectively, if perhaps unintentionally, permitting it on
the part of the sovereign collectivity (the community). To be consistent, Meiklejohn should have denied it to the sovereign demos as well as to state officials
because, as he, just as Rousseau (who made the same mistake), well knew, the
sovereign body, even if it is to be guided by the general will, is still, on the one
hand, composed of individual voters not always responsive to it, and, on the
other, in need of all information necessary to make up individualnot collectiveminds. For Meiklejohns thoroughgoing hostility to individualism, see
Political Freedom, supra note 259, at 51-77. See also Lee C. Bollinger, The
Tolerant Society: Freedom of Speech and Extremist Speech in America 50-51, 151-53 (Oxford University Press 1986).

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grant state ocials the authority to permit or suppress material based solely on the message it communicates is, thus, to
endow our agents with the plenary expressive power that
properly belongs to each one of us in our citizen functions.
And by denying us the moral and political agency necessary
to perform these functions, this grant not only stands the
free expression guarantee on its head, it turns the free and
democratic world upside down as well.
If the idea that state ocials should possess such censorial power is antithetical to the concept of self-governing
individuals, so also is the reasoning behind the idea. One important reason why suppressionists like Waldron believe
state ocials should possess the authority to determine
which ideas individual citizens should be permitted to consider is that under the right circumstances a significant segment of opinion might be persuaded by expression harmful
to democratic values.267 Against this view, Thomas Scanlon
has invoked what he calls the Millian Principle:
There are certain harms which, although they
would not occur but for certain acts of expression, nonetheless cannot be taken as part of a justification for legal restrictions on these acts.
These harms are: (a) harms to certain individuals
which consist in their coming to have false beliefs
as a result of those acts of expression; (b) harmful
consequences of acts performed as a result of
those acts of expression, where the connection
267

Hence, Waldron suggests at one point that it is good if hate speech laws
drive hate underground because then the bigots cannot contact and coordinate with one another in the enterprise of undermining the assurance the
laws are there to prevent. Waldron at 95.

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between the acts of expression and the subsequent harmful acts consists merely in the fact
that the act of expression led the agent to believe
(or increased their tendency to believe) these acts
to be worth performing.268
To claim that such harms are valid reasons to suppress the
expression that allegedly caused them is not only, as earlier
noted, to question the ordinary method of democratic policy determination, it is also to question the very possibility of
citizen autonomy and agency.269 The claim treats citizen/auditors as if they were but ciphers through which causes work
268

A Theory of Freedom of Expression, in The Philosophy of Law 160-61


(R.M. Dworkin ed., 1982). According to Scanlon: the powers of a state are limited to those that citizens could recognize while still regarding themselves as
equal, autonomous, rational agentsTo regard himself as autonomous...a person must see himself as sovereign in deciding what to believe and in weighing
competing reasons for action...an autonomous person cannot accept without
independent consideration the judgment of others as to what he should believe
or what he should do. Id. at 162-63. In Freedom of Expression and Categories of
Expression, Scanlon modified his theory but not in any way which importantly
affects the principle as it pertains to the category of political expression. David
Copp & Susan Wendell, Pornography and Censorship 139-65, 151 (Prometheus 1983).
269

Many of the arguments against Scanlon are grounded in some or other form
of paternalistic reasoning: We should give the state censorship powers because
under certain conditions we, or the most gullible among us, may fall prey to
harmful or dangerous statements. The problem with this argument, as Eric
Barendt has noted, is that It could be employed to undermine any argument
for freedom of political speech, because it can always be said that the people
cannot be trusted properly to assess the claims made to them. Incitement to,

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their specific eects unimpeded by any intermediate force.


It thus denies the proposition that individuals possess the
requisite filter or judgment necessary to act as responsible
moral agents. For unless individual auditors are assigned responsibility for what they believe and act upon, they are no
better than mere vessels through which the harmful eects
of ideas naturally flow. Such a fluid conception of individual agency might have some practical meaning in an emergency, but it can have no part whatever to play in the ordinary politics of a free and democratic society.270
Nevertheless, what the heavy hammer of censorship
tells dissidents, whether speakers or auditors, is that they are
aliens, outliers, as well as marginal and not worthy of respect
or of being treated as equalsnot exactly messages consistent with arguments for equal citizenship. Nor, for that
matter, does Waldron, personally, appear to accord them
and Glorification of Terrorism, in Extreme Speech and Democracy, supra
note 87, at 451.
270

Ronald Dworkin has argued a similar point: morally responsible people insist on making up their own minds about what is good and bad in life or in politics, or what is true and false in matters of justice and faith. Government insults
its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions. We retain our dignity, as individuals, only by insisting that
no oneno official and no majorityhas the right to withhold opinion from
us on the ground that we are not fit to hear and consider it. The Coming Battles
Over Free Speech, New York Review of Books, 56-57 (1992) (book review, reviewing Anthony Lewis, Make No Law: The Sullivan Case and the
First Amendment (1991)), available at http://www.nybooks.com/articles/1992/06/11/the-coming-battles-over-free-speech/.

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that status. As we have seen, his basic argument is that rightspeaking peoplethose who utter the approved messages
should ally with right-thinking state ocials to censor the
unapproved utterances of the benighted among us. Whatever
could be said on issues aecting assurances given to vulnerable minorities, then, could only be that given clearance by
state authorities. To the extent the censorial project were
completely successful, any position taken on any such issue
would be one ostensibly shared by both a! private individuals
and a! state authorities. In the event, in this version of the
well-ordered society, there would be no separation whatever between state and society and no dissent either.

210

n
VI
Waldrons Civility Argument
Waldron says his group libel law would not criminalize slander (spoken insults, epithets, and name-calling) because the spoken word while hurtful is generally not longlasting. (116-117, 34-35, 37)271 His real interest, as he states
throughout his book, is with publications, particularly with
signs and postings that attack the public good of assurance
and wish to replace it with a rival public good of fear, suspicion, and hostility to the interests and status of vulnerable
minorities. Publicly displayed writings, he argues, generally
cause greater harm to the interests and status of minorities
than the spoken word.
Nor does Waldron think group libel statutes threaten
free speech interests in any serious way. Instead, he tells us
throughout that whatever hate speakers have to say they can
say in more civilized language which, apparently, would avoid
prosecution. He says that we want to catch only hate speech
that is expressed in an insulting, or threatening way, and
that means we must attend to the content of the words or
written material itself, rather thannon-content-based

271

Though, as noted earlier, he hints that under certain conditions verbal expressions may be targeted because the echo of an epithet can linger and become a disfiguring part of the social environment. Waldron at 117.

Chapter VIWaldrons Civility Argument

elements such as tone, volume, shrillness, or other aspects of


expression. (151-52) Waldron agrees with C. Edwin Baker
that being asked to trim ones rhetorical sails is an assault on
ones autonomy because it requires hate speakers to alter
their preferred, but much more abusive, words which they
believe more precisely capture the message they wish to convey. However, he says that being prevented from posting
leaflets libeling Muslims as terrorists orpublic portrayals of
people of other races as apes or gibbons does not mean that
they themselves are silenced. They can still say what they wish
on innumerable other topics of public concern, and they
are also free to re-state their racism or their contempt for
Islam in more moderate terms. (149-50)272
Nor does Waldron think that his balancing argumentweighing the importance of the autonomous self-disclosure of the speaker against the compromised social and individual values aected by his speechnecessarily requires
speech suppression:
That balance ought not require the suppression
of every word or epithet that counts colloquially
as hate speech. It may require us to attend to the
most egregious forms of group libel, particularly
when the threatening or abusive form in which it
is presented makes the destructive intention of
the self-disclosure more or less explicit. And, on
272

Emphasis in original, referencing Baker, Autonomy and Free Speech, in Extreme Speech and Democracy, supra note 87, at 143. Unfortunately, Waldron never tells us what this more moderate racist expression might look like,
nor how it differs from less moderate or more extreme forms of racist expression. However, see Chapter VII for some possible examples.

214

Chapter VIWaldrons Civility Argument

the other hand, it may require us to ensure that


there are legally innocuous modes and forms of
expressionwhere similar views can be aired
(similar values and attitudes disclosed) in ways
that minimize the damage to social values and individual dignity. (172)273
So, on Waldrons argument, words can be suppressed if they
are threatening or abusive; or on the basis of how virulently they are expressed; or if they are expressed as vituperation. (190)
I must say, I do not understand the logic of those, like
Waldron, who press the case for group libel statutes, but
then limit consideration only to the most egregious forms
of libel. As I see it, these most egregious forms are also
some of the most outrageous and, also, because of that fact,

273

This last sentence is truly astonishing. Even assuming they were identifiable
with some precision, how would we go about ensuring these legally innocuous
modes and forms of expression were protected? Would we list them and post
them somewhere so that all could know exactly what they may say? I can see it
now: Here is the list of legally innocuous modes and forms of expressions you
are free to use, you racist and phobic bastardsnow go to it boys! Even more
absurd is the apparent blessing Waldron gives to the airing of similar views
and similar values and attitudes (compare the odd discussion between judge
and prosecutor, below at pp. 276-79)whatever these may bewhere the
views, values, and attitudes freely unleashed can only be those of alleged racists
or phobics! Given the greater persuasiveness of moderate speech, one is left
wondering whether Waldron is trying to promote hatred or prevent it.

215

Chapter VIWaldrons Civility Argument

some of the least persuasive.274 Consider the following bit of


welcoming language taken from a posting by the Klan:
You God Damned, stinken [sic], filthy, blackskinned monkeys do not belong among an [sic]
White Human Society. You shit colored animals
will eventually be phased out. In plain English
eliminated.275

274

As does Ronald Dworkin in his Reply to Waldron, in Hate Speech, supra


note 65, at 343. Commenting on the case of three Muslim men who circulated
crude anti-homosexual leaflets to passersby outside a Mosque in Derby, Josie
Appleton writes: they might as well have been posted in the bin. No minds
were changed. Nobody was incited to acts of violence or discrimination. The
gay community of Derby suffered no actual harm. The very hatefulness of the
of the speech was also the thing that condemned it to irrelevancy, since it was
so far from general public opinion and so crude that nobody would have been
convinced or swayed by it. There Aint No Harm in Hate Speech, Spiked (Oct.
26, 2012) (book review, reviewing Jeremy Waldron, The Harm in Hate
Speech (2012)), http://www.spiked-online.com/review_of_books/article/13028#.VrK3lMcng5g. See also Tom Slater, No words: student calls for LSE
free-speech society to be banned, Spiked (Feb. 3, 2016), http://www.spikedonline.com/review_of_books/article/13028#.U9PZ8EBeKDg.
275

As quoted in Thomas David Jones, Human Rights: Group Defamation,


Freedom of Expression, and the Law of Nations 76 (The Hague 1998),
from R. A. Jordan, The Racial Hate Fires Must Be Extinguished, Boston Globe,
(Nov. 18, 1980) at 15. Jones says he would be appalled were any theorist to suggest [the quoted statement] is protected by the First Amendment. More important, what would be the moderate form of this Klan posting?

216

Chapter VIWaldrons Civility Argument

Pretty egregious, eh? Almost Hitlerian? Perhaps even Progressive?276 I certainly think so, but, absent some non-content-based reason, I do not think it should be suppressed any
more than a substitute version which denigrates Whites rather than Blacks. The Klans statement is so egregious as to
be ridiculous and more illuminating about the poster than his
intended targets. It is true that there was a time in certain
parts of the country when such a statement might have had
the eect of making everyday life dicult for Black folks; but
not today. As noted earlier about an anti-Muslim posters
persuasive chances in parts of New Jersey, posting something
like the above anywhere other than the posters basement
would be more likely to bring hordes down on his head than
the Blacks he was trying to defame. Like the Nazis in downtown Chicago or Marquette Park, he would be running for
his life.
No doubt such statements would anger many black
people as well as most Whites, but that is all the eect they
likely would have which is at all publicly significant.277 They
276

See notes 148-54 and accompanying text at pp. 117-19.

277

Indeed, the case is almost the reverse today. Black mobs have been brutalizing Whites throughout the country in the past few years, and it is difficult to
get any racial component to the beatings from the mainstream press. Indeed,
these incidents are rarely reported, and if they are, the perpetrators are generally described as youths or young people rather than the racist thugs they
are. Even more astonishing, it is rare for the victims to report the race of their
tormentors. The fear, of course, is that if they do, they will be thought racists.
For a run-down on the beatings and the reactions of the media and the victims,
see White Girl, supra note 111. Things have gotten so bad that even one of the
countrys premiere race hustlers has found it necessary to condemn the knockout game. Sharpton, Other Civil Rights Leaders Launch Fight Against Knockout

217

Chapter VIWaldrons Civility Argument

would not undermine the public order as Waldron considers


it. Almost no one today would be very much impressed by
such expression; indeed, most right-thinking people would
probably think the perpetrator should be committed. True,
there would likely be a few outliers, or crazies, as Waldron
would have it, that would view the signer with awe and aection, but that would be because they are outliers, if not
downright crazy themselves, not because they are dangerous.278
Henry Louis Gates Jr. puts the point well. He compares the epithet Out of my face Jungle Bunny spoken to a
freshman at Stanford University to the following circumlocution:
LeVon, if you find yourself struggling in your classes, here, you should realize it isnt your fault. Its
simply that youre the beneficiary of a disruptive
policy of armative action that places underqualified, underprepared, and often undertalented
black students in demanding educational environments like this one. The policys egalitarian aims
may be well-intentioned, but given the fact that
aptitude tests place African-Americans almost a
Game, CBS New York (Dec. 4, 2013), http://newyork.cbslocal.com/2013/12/04/sharpton-other-civil-rights-leaders-launch-fight-againstknockout-game/.
278

You cannot libel someone by saying I despise you, which seems to be the
essential message common to most racial epithets. Henry Louis Gates Jr., War
of Words: Critical Race Theory and the First Amendment, in Speaking of Race,
Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties 30
(Robert Gates Jr. et al., 1994).

218

Chapter VIWaldrons Civility Argument

full standard deviation below the mean, even controlling for socio-economic disparities, they are
also profoundly misguided. The truth is, you
probably dont belong here, and your college experience will be a long downhill slide.279
As Gates sees it, in American society today, the real power
commanded by the racist is likely to vary inversely with the
vulgarity with which it is expressed.280 Ironically, then, the
most eective defamation would come from exactly the type
of speech Waldron would protectthe moderate or the
civilwhile the least eective would be the type he urges
us to criminalize.
Like Waldron, fellow suppressionist Erik Bleich
thinks that we should target only the most egregious forms
of racist expression but, at the same time, inadvertently reveals a serious problem with this strategy: for in many cases
the uncivil expression is the evidence for the moderate or
civil. Bleich begins by arguing the speech protective case that
statements or organizations which are designed to contribute to public debate about state policieshave to be protected, even if they may have potentially damaging side effects; but then he says:
Determining which forms of racism undermine
social cohesion, perpetuate discrimination, and
disadvantage, or foster violence will depend a
great deal on context. To some extent, this turns
on the manner in which the words are spoken.

279

Id. at 46-47.

280

Id. at 47.

219

Chapter VIWaldrons Civility Argument

Saying, I think this country has too many immigrants and they are hurting our country, has to be
protected speech; but saying, Immigrants are
thieves, rapists, and murderers and they should be
herded back across the border, does not. The
first is a comment on policy coupled with a concern about quality of life. The second is an attempt to stir up hatred and possibly violence,
even if couched in public policy concerns. The
first leads to debates about whether a country
should have permissive or restrictive immigration
policies. The second calls upon citizens or the
state to engage in human rights violations.281
Apart from the fact that Bleich has no way of knowing the intent of the imaginary persons in his hypothetical
and, thus, what they are attempting to do (stir up hatred,
foment human rights violations) there are two diculties
with his argument. First, his hypothetical culprit fingers immigrants per se, not the sub-class of i!egal immigrants which,
if the hypothetical is to be convincing, must obviously be
those being targeted. In the real world, most of those who
are concerned with the robberies, rapes, and murders by immigrants would center their attention mainly on immigrants of
the i!egal variety.282
281

The Freedom to be Racist? How the United States and Europe


Struggle to Preserve Freedom and Combat Racism 149 (Oxford University Press 2011).
282

Surely, Bleich is not really asking us to believe that the animus here is against
just any old immigrants? If he is, his example makes no realistic sense. Few, if
any, would think legal immigrants from, say, Sweden, should be chased back
home because they are thieves, rapists, and murderers. Obviously, the class of

220

Chapter VIWaldrons Civility Argument

Second, even accepting the unrealistic claim that it is


immigrants as such that the hypothetical speaker is targeting,
the moment one moves beyond the general and protected
public policy assertion that too many immigrants are hurting
our country to get to the evidence advanced to support it, we
are likely to find sentiments similar to those voiced in the unprotected version: it is immigrants who are hurting the country because they are thieves, rapists, and murderers, and the
country would be better o deporting them. Bleich believes
the latter two assertions should be unprotected, but these
likely are the speakers evidence for his otherwise unexplained, but protected, general assertion.283
Why should a person who truly thinks the above be
prohibited from saying so? Should he or she be prevented
from presenting evidence to support the protected statement
simply because it is considered uncivil, or because we think it
immigrants to which his example refers is illegal immigrantslikely, given
the border context, Mexicansbut he resists so identifying them for reasons
about which we can only speculate. Nevertheless, his hypothetical is persuasive
only if the complaint is against illegal immigrants.
283

Perhaps Bleich believes the culprits assertion should be unprotected because it targets the entire class of immigrants whether legal or illegal and would
be protected if he targeted, say, either many, most or some of them irrespective of their legal status. Of course, this is not generally how people speak
politically in heated controversies, certainly not those who lack lawyers standing by to coach them on the proper expressive etiquette necessary to protect
them from running afoul of hate speech statutes. Moreover, which of the listed
subsets (many, most or some) in either category would satisfy the tests of
prospective regulators? For some thoughts on the matter, see Chapter IX (cartoon controversy).

221

Chapter VIWaldrons Civility Argument

false? The First Amendment can have no civility or political


truth tests; for if it did, our politics would showcase scant
discussion of controversial issues.284 Thus, to protect the first
statement but not permit expression of its supporting evidence, however crudely expressed, is absurd. In politics,
many uncivil expressions lay just beneath the protected
civil surface and would, likely rise to the top in any truly dialogic setting. To protect the one but not the other would be
to force people to tell lies in order to stay clear of the law.

284

There are other reasons why we should protect this speech even if we think
it wrong and uncivil. For one thing, voicing it permits us to point out its falsity
and, in the process, correct widespread misconceptions. For another, it might
contain some element of truth that is worth considering. One truth it certainly
contains is who holds such views and why? As Daniel A. Farber, noted: The
truth is that racism in our society isoften characterized by the ugliest of emotionsWe obtain an important truth from these speakers, although it is not a
truth they mean to convey. Civilizing Public Discourse: An Essay on Professor
Bickel, Justice Harlan, and the Enduring Significance of Cohen v. California,
1980 Duke L. J. 283, 301 [hereinafter Civilizing Public Discourse]. See also
Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the
Subordination of Groups, 1990 U. of Ill. L. R. 95, 103 n.25: what was it that
galvanized northern white opinion in support of the desegregation of public
schools? Not a committee report; not a paper read to a conference of social scientists. Rather, Northern white opinion took a decisive turnbecause millions
of television screens pictured a scene in Little Rock: white adults, their faces
contorted with rage, screaming at black children who were entering school under armed guard.

222

Chapter VIWaldrons Civility Argument

Indeed, some have argued that is precisely what standards of


civility are all about.285
Moreover, unless they are exceptionally dull-witted,
those who, in the face of punishment, are either careless or
unconcerned about the consequences of expressing their evidence in politically incorrect ways, would surely search about
for expressions to make their point in more acceptable language and, therefore, more, not less, persuasive to mainstream auditors. Indeed, this is precisely what happened in
Britain after the Race Relations Act was passed in 1965, and
it is exactly what Waldron urges them to do as well.286
As Franklyn S. Haiman observed: Those who are verbally skilled enough will express their hatred in more indirect
and sophisticated ways. This was true of a racist British
journal: When the law went into eect the racist journal
285

For example, Jean-Jacques Rousseau, Discourse on the Arts and Sciences (1750).
286

[W]e want to catch only hate speech that is expressed in an abusive, insulting, or threatening way (Waldron at 150); Balancing speaker and target interests may require us to ensure that there are legally innocuous modes and
forms of expressionswhere similar views can be aired (similar values and attitudes disclosed) in ways that minimize the damage to social values and individual dignity (Waldron at 172); Most hate speech laws bend over backwards
to ensure that there is a lawful way of expressing something like the propositional content of views that become objectionable when expressed as vituperation (Waldron at 190); As long as their speech maintains a decent and moderate mannerthe racist and the Islamophobe [can] speak, to mount the challenges that they want to mount; they just have to take care with the mode and
manner in which their challenge is expressed. Waldron at 199.

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Chapter VIWaldrons Civility Argument

kept the same message but cleaned up its language. Moreover, noting that a scrubbed-up version of David Duke came
frightening close to being elected governor of Louisiana,
Haiman concluded that coded messages of group hatred
that steer wide of what could be outlawed by any conceivable
ban on hate speech are potentially far more harmful to disadvantaged groups than anything a ranting and raving racist
might say.287 In the event racists are not so stupid as to persist in using expressive instances banned by Waldrons group
libel statute, the end result of cleaning up their language
would more than likely be just the opposite of what he
thinks: their prescriptions for the evils they see would become more, not less, attractive to potential supporters. So
much for the attempt to protect vulnerable minorities by
banishing ugly expressions!
Despite these rather obvious objections, Waldron
thinks that as long as there are legally innocuous modes and
forms of expressions which can substitute for the threatening, the abusive, the virulent, or the vituperative, then
287

Speech Acts and the First Amendment 33 (Southern Illinois University


Press 1993). Hate speech statutes that allegedly target only the most nasty insults, epithets, and name-calling because of the harm they allegedly do, and
which can easily and obviously be circumvented by circumlocutions that are
much more persuasive, should logically lead their proponents to propose even
broader reaching statutes in an attempt to enforce broad political agendas dictating what may be said by whom to whom. See e.g., Public Response to Racist
Speech, supra note 43, at 2356-79; cf. Civil Libertarian, supra note 93, at 352-63.
Nevertheless, despite its decent and moderate tone, Waldron says that Religious hate speech[i]n our daycan include proclamations that the followers
of Islam are inclined by their faith to be supporters of terrorism. Waldron at
209.

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Chapter VIWaldrons Civility Argument

there is no serious free speech issue. Without group defamation restrictions, public discourse would be coarser, more
intimidating, more demoralizing to the members of vulnerable groups. Moreover, according to Waldron, such contentbased restrictions do not, as Georey Stone has argued,288
distort public debate. They are designed to have an eect on
public debate in circumstances where it is reasonable to believe that, without some sort of restriction, public debate will
have an eect on peoples lives that government has an obligation to be concerned about. (156)289
Censoring threatening, virulent, abusive, vituperative, etc., public expression directed at members of
vulnerable groups is, in Waldrons eyes, a relatively harmless restriction on the free expression right which does not
distort but moderates and civilizes public debate by ensuring it will be frequented only with the type of language
one would encounter in something resembling an academic
debate.
In response to the charge that such restrictions distort public debate, Waldron says:
Such a description presupposes a privileging of
what public debate would be like without intervention. But why should we privilege that? At any
given time, public debate consists in an array of
millions of contributions of various sorts, interacting and snowballing in various ways. At any
given time, this heaving array has various eects
288

Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987), citing Political Freedom, supra note 259, at 27.
289

Hence, to tolerate hate speech is to promote it. See Chapter IV.

225

Chapter VIWaldrons Civility Argument

on the beliefs held and attitudes adopted by millions of people, making some more enlightened
and sophisticated, trivializing or degrading others,
and so on. Is there any reason to suppose that this
interaction or its eects are more valuable when
they are not altered in any regard by legal regulation? (155)290
So, Waldron says, given that this heaving array of individual
contributions interacting and snowballing at the societal level
aects our beliefs and attitudes dierently and dierentially,
the debate is already distorted with the result that some individuals are more enlightened and sophisticated than others.
Thus, Waldron argues, if the debate is already distorted and
the results are mixed, why presume these results are better
without legal regulation? Yes, censorship distorts the debate, but the debate is distorted anyway; moreover censorship is not necessarily baleful, it can alter the debate for the
good, and where it can, as with hate speech, it should be permitted to do so.
Waldrons belief that because the debate is distorted
in the first place, we should not worry unduly about the distortion state censorship may bring is remarkably nave. Legal regulation is state censorship by another, much nicer
sounding name, but it is subject to the same criticisms and

290

Is the value of an expression the test of whether the government should be


permitted to censor it? Just off the top of my head and by way of answer to the
question why should we privilege that? I would say that while that heaving
array can certainly affect what one may say or do, only governments can throw
you in prison for violating one of their interventions.

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Chapter VIWaldrons Civility Argument

ugly history nonetheless. But Waldron and his fellow censors, apparently, are dierent from past censors. Their censorial eorts are not intended to silence political opposition;
instead, they are intended to civilize public discourseto
make it more intelligent, civil, and enlightened.291 In contrast
to those who would undermine eorts to secure a more
well-ordered society, their censorial eorts would be directed to producing more well-ordered subjects. All of this
assumes, of course, that those in authority will wield the censorial power in the way Waldron and his enlightened followers presume, but there is little in the history of censorship
that would permit such sanguinity,292 and there is, apparently,
291

In my view, the entire argument from civility has something malodorous


about it. If those such as Waldron were truly concerned about civility in public
discourse, we should find them railing about loud and aggressive or obscene and
vulgar expressions no matter who or what is targeted, or whether such expressions target anyone at all. But suppressionists rarely do; for, as with harm itself,
the real burden of double-standard suppressionist concerns is not with incivility as such but, instead, with those to whom it is addressed, and only when the
uncivil expression is of a supposed racist, sexist, homophobic, or Islamophobic
nature. In other words, their civility concerns are essentially political. Like
other incivility suppressionists, Waldrons civility argument says nothing about
the increasingly common use today in public discourse of the seven dirty words
George Carlin listed as verboten in his comedy act. George Carlin - 7 dirty words
(best part), YouTube (July 6, 2011),
http://www.youtube.com/watch?v=vbZhpf3sQxQ.
292

Nor is there anything at work in the society-at-large today that suggests


censorship policies will be at all useful in helping us to navigate the intricacies
of democratic debate. For an account of the way educational institutions are
failing us in this regard, see Lukianoff, supra note 6. The extent to which uni-

227

Chapter VIWaldrons Civility Argument

nothing by way of checks on the censorial power that Waldron contemplates. He seems simply to assume that things
will work out the way he wants.
Moreover, those, such as Waldron, who believe that
the state has an armative duty to censor speech containing
harmful tendencies, are also those who likely would find such
speech in many otherwise harmless precincts. Moral certainty, arrogant self-righteousness, and zeal armed with the
power of the state to back it up are not things that either
counsel caution or restraint on the part of those armed with
them; nor should these comfort the heart of todays liberal.
They call to mind the image of little Anthony and the Comstockings going about the business of nosing into peoples
mail to ensure that nothing obscene or pertaining to sex,
such as anatomy books or birth control information, would
elude their censorial grasp.
As argued earlier,293 while Waldron has asserted great
harm can come from the publications he wishes to censor, he
has not shown any such harm alleged to have come from
them that is not equally, indeed, better, explained on grounds
other than expression. So his argument for censorship is not
only without the needed basis, it is also dependent on distorting the public debate.

versities are poking their noses into matters having nothing to do with their educational missions is nicely captured in USCs requirement that students answer questions about their sexual practices prior to being permitted to register
for classes. Anthony Gockowski, USC students required to detail sexual history before registering for classes, Campus Reform (Jan. 12, 2016), http://www.campusreform.org/?ID=7155.
293

See Chapter II.

228

n
VII
Ending Debate in the
Marketplace of Ideas
Nevertheless, answering his own question whether an
open but distorted debate is better than a state censored debate, Waldron proceeds to launch an attack on the marketplace of ideas as a rationale for preventing censorship. In so
doing, he distorts the rationale itself. He seems to believe
that proponents of the marketplace rationale contend that
open debate will inevitably yield the truth,294 but apart from
John Milton,295 it is dicult to find any other person who
294

[W]e do not buy into the assumption that truth will inevitably prevail in
the marketplace of ideas Waldron at 157.
295

[S]o Truth be in the fieldLet her and Falshood grapple; whoever knew
Truth to be put to the wors, in a free and open encounter. Areopagitica: A
Speech for the Liberty of Unlicensed Printing (1644) available at http://www.dartmouth.edu/~milton/reading_room/areopagitica/text.shtml. Contra The dictum that truth always triumphs over falsehood is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces,
but which all experience refutes. History teems with instances of truth put
down by persecution. J. S. Mill, On Liberty 28 (Norton 1975). Frederick
Schauer says that Mills assumption that the removal of persecution will allow
truth to triumph in all cases is every bit as much a pleasant falsehood. Free

Chapter VIIEnding Debate in the Marketplace of Ideas

thought (or even thinks) this way. Holmes, the originator of


the marketplace metaphor, never said that truth will necessarily result from the free play of market forces. Indeed, it
would be odd if he did since he was a skeptic with regard to
truth.296 But then, if he was a skeptic, why did Holmes speak
about truth at all? To answer this question, it is useful to
quote Holmes marketplace comments at length.

Speech: A Philosophical Enquiry, supra note 255, at 27. However, no evidence is advanced to support Schauers claim that Mill assumed this. Some
commentators are ambivalent; for example, Rosenfeld, supra note 106, in
Hate Speech, supra note 65, at 261, 351, says both that the American assumption [is] that truth will ultimately prevail, and that it is more likely to prevail
if the marketplace is left open. Nor do I, but that is not a strike against the marketplace of ideas. As D.F McGowan & R.K Tangri argued: A market does not
fail because people decline to adhere to a given set of ideas that the market
makes available. A market does fail when it is prevented from making available
certain ideas to which people might wish to adhere. The function of a market
is to provide choices, not compel them. A Libertarian Critique of University
Restrictions of Offensive Speech, 79 Cal. L. Rev 825, 873-74 (1991).
296

He once wrote: I dont believe or know anything about absolute truth.


Letter to John Wu (June 16, 1923), in Justice Oliver Wendell Holmes: His
Book Notices and Uncollected Letters and Papers 164, 165 (Harry C.
Shriver ed., 1936), as quoted in Vincent Blasi, Holmes and the Marketplace of
Ideas, Sup. Ct. Rev. 1, 14 (2004).

232

Chapter VIIEnding Debate in the Marketplace of Ideas

Dissenting in Abrams v. U. S.,297 Holmes said:


Persecution for the expression of opinions seems
to me perfectly logical. If you have no doubt of
your premises or your power and want a certain
result with all your heart you naturally express
your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate
that you think the speech impotent, as when a
man says hes squared the circle, or that you do
not care wholeheartedly for the result, or that you
doubt either your power or your premises. But
when men have realized that time has upset many
fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct
that the ultimate good desired is better reached by a &ee
trade in ideasthat the best test of truth is the power of
the thought to get itself accepted in the competition of the
market, and that truth is the only ground on which their
wishes safely may be carried out. That at any rate is
the theory of our Constitution. It is an experiment as all life is an experiment. Every year if not
every day we have to wager our salvation upon
some prophecy based upon imperfect
knowledge.298
What is Holmes saying here? First, he says that if we
are certain that were right and have the power to enforce
our opinions, it is natural for us at first thought to call on
state authorities to censor opposing viewpoints. Not to do
so, he suggests, indicates we doubt either our premises or our
297

250 U. S. 616 (1919).

298

Id. at 630 (emphasis added).

233

Chapter VIIEnding Debate in the Marketplace of Ideas

power. Yet, if we think clearly and look to history, we will realize that many past truths (certainties men have died for)
have been dethroned over time, and that the better way to
reach whatever ultimate good we desire is not by means of
state power but by the free trade in ideas. The last two
clauses of this sentence convey his meaning. He says the
best test of truth is not mere dictates issued by the power of
government ocialsfor these have no more (in fact, likely
less) claim to truth than any derived from market outcomes299but instead the power of the thought to get itself
accepted in the competition of the market. What is critical is
not the power of a person or some institutional authority to
dictate truth, but the power of the thought to become accepted by market participants. Holmes apparently believed
that thoughts could be powerful enough to command assent. A thought that powerful is what he meant by truth,
and a truth that has commanded assent against all other
competitors in an open market is the only assurance we have
that what has been assented to actually is the truth as we
now know it. This does not mean that what we now call
truth in political or social life is necessarily true for all
times or places.
Having said that truth is an outcome of competition
in the market, Holmes says marketplace competition is the
theory of our Constitution, and that like all life itself, it is
also an experiment. Experiments test truths; life itself is a
299

Unlike Mill, Holmes was driven by skepticism and pessimism and expressed
grave doubts about the possibility of truth. Because of this, Holmes justified his
free marketplace approach on pragmatic grounds. Given that most strongly
held views eventually prove false, any limitation on speech is most likely
grounded in false ideas. Rosenfeld, supra note 106, in Hate Speech, supra
note 65, at 251.

234

Chapter VIIEnding Debate in the Marketplace of Ideas

continual testing of truths. Why is it so? Why must we daily


have to wager our salvation upon some prophecy based on
imperfect knowledge? The question answers itself: because
we do not have perfect knowledge. Our knowledge of things is
imperfect; there are no absolute truths. Thus, time upsets
fighting faiths because fighting faiths are certainties
grounded in the chimera of an absolute truth that admits no
other competitors. The market is but a process of truths displacing truths time over time; it must be open to new competitors and untainted by the heavy hand of government diktats. Government censorship stops this process in its tracks
by declaring truth once and for all. For Holmes, however, it
is the market alone that should determine which thought
carries the day as truth; for it is market determination alone
which guarantees that the process is left open and the result
has not been pre-ordained and foreclosed simply by government fiat.
Holmes was a fallibilist. He believed all our
knowledge was uncertain and temporary.300 He was also imbued with the scientific method, well-expressed by Antony
Flew, who following Karl Popper argued that the search for
300

Holmes focus on fallibilism indicates that the absolutism he rejected with


such vehemence is that which places certain ideas and practices beyond the
need for ongoing evaluation and modification in the light of criticism, evidence,
experience, changing conditions, and changing felt necessities. Blasi, supra
note 296, at 21. Moreover, as Justice Holmes Abrams dissent implicitly recognized, the marketplace theory is, at bottom, a process-driven theory. It is an experiment in ascertaining truth and achieving the good society. As a process,
however, it offers no view on the ultimate question of what constitutes objective truth other than to say that such truth, whatever it is, is more likely to
emerge from this process than from any other. A Libertarian Critique of University Restrictions of Offensive Speech, supra note 295, at 836.

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scientific truth requires that we attempt to falsifynot verifyour respective conjectures:


Honest inquirers...though they will naturally want
their own theories and their own hypotheses to
turn out to have been correct, must to the extent
that they are indeed sincere truth-seekers necessarily
labour to show that all theories and hypotheses
proposedmost especially their ownare after
all false. Suppose that one nevertheless survives
the most rigorous and comprehensive criticism.
Then, however temporarily, the hopes of its sponsors are fulfilled. On the other hand, when a
promising theory or hypothesis is falsified its
sponsors can console themselves with the thought
that the strenuous testing culminating in this
conclusion must surely have advanced research.
So the successor theory or hypothesis should be,
if not the final truth, at least significantly nearer
to it.301
301

Anthony G.N. Flew, Thinking About Social Thinking: Escaping


Deception, Resisting Self- Deception 1415 (London 1991) (emphasis
added); see Karl Raimund Popper, Conjectures and Refutations: the
Growth of Scientific Knowledge (London 1963). Compare Flews and
Poppers views on how science proceeds with those of global warming alarmists
such as Al Gore or David Suzuki. At one point in a lecture in which he railed
against politicians who ignore the science behind climate change, Suzuki said:
What I would challenge you to do is put a lot of effort into trying to see if
theres a legal way of throwing our so-called leaders into jail because what they
are doing is a criminal act. Craig Offman, Jail Politicians who ignore climate science: Suzuki, National Post (Feb. 7, 2008). Suzuki repeated the claim that
deniers should be jailed in a 2013 interview in Australia. David Suzuki bombs

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on Q&A, knows nothing about the climate, JoNova (Sept. 24, 2013), http://joannenova.com.au/2013/09/david-suzuki-bombs-on-qa-knows-nothing-aboutthe-climate/. As far as I am aware, Gore has yet to recommend prison for
global warming deniers but he has linked them to racists and, though he refuses to debate anyone who contests his charges, he is absolutely certain the
planet is warming at an alarming scale. Climate change deniers will be despised just
like racists one day, says Al Gore, The Daily Mail (Aug. 30, 2011),
http://www.dailymail.co.uk/news/article-2031278/Climate-change-deniersseen-racists-day-says-Al-Gore.html. Moreover, an assistant professor of philosophy at the Rochester Institute of Technology, Lawrence Torcello, has also
jumped on the jail them: theyre criminally negligent bandwagon. Is misinformation about the climate criminally negligent? The Conversation (Mar. 13,
2014), https://theconversation.com/is-misinformation-about-the-climatecriminally-negligent-23111. Here he is again, along with Adam Weinstein, in an
even more ridiculous pose: Adam Weinstein, Arrest Climate-Change Deniers,
Gawker (Mar. 28, 2014), http://gawker.com/arrest-climate-change-deniers1553719888. For Torcello, as the others, the science is settled and, therefore,
like Gore and Suzuki, scientific progress requires they block the way of any
future scientific inquiry that doesnt confirm what they currently believe is certain. One fine European scholar has even gone so far as to say that an appropriate punishment for those who reject the alarmist message might be death: Prof.
Richard Parncutt: Death Penalty for Global Warming Deniers?, Tallbloke (Dec.
24, 2012), http://tallbloke.wordpress.com/2012/12/24/prof-richard-parncuttdeath-penalty-for-global-warming-deniers/. And heres the latest jeremiad
from one of the more ridiculous members of our Kennedy clan: Marc Morano,
Robert F. Kennedy Jr. Wants To Jail His Political OpponentsAccuses Koch
Brothers of TreasonThey ought to be serving time for it, Climate Depot
(Sept. 21, 2014), http://www.climatedepot.com/2014/09/21/robert-f-kennedyjr-wants-to-jail-his-political-opponents-accuses-koch-brothers-of-treason-

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On this view, there is never any good reason to block the


way of inquiry,302 but this is precisely what censorship does;
they-ought-to-be-serving-time-for-it/. Then theres the attempt by The Climate Accountability Institute to use the Racketeer Influenced and Corrupt
Practices Act (RICO) to punish corporations they imagine are responsible for
global warmings alleged disasters. Shub Niggurath, Rico-teering: How Climate
Activists Knew They Were Going To Pin The Blame on Exxon, Shub Niggurath Climate (Nov. 2, 2015), https://nigguraths.wordpress.com/2015/11/02/rico-teering/. Finally, on the sane side, heres Ted Cruz
eviscerating the settled science argument of the president of the Sierra Club,
Aaron Mair, who claimed global warming was cooking the planet even
though there has been no significant warming for eighteen years. Oliver Darcy,
Ted Cruz Repeatedly Grills Sierra Club President With One Simple Question
Watch the Answer He Gets, The Blaze (Oct. 6, 2015),
http://www.theblaze.com/stories/2015/10/06/ted-cruz-repeatedly-grills-sierra-club-president-with-one-simple-question-watch-the-answer-he-gets/.
Apart from the hysteria (and money) created by climate alarmism, a less scientific way of proceeding would be hard to find. For a more intelligent and farless hysterical discussion of climate change, see Anthony Watts, Monctons Schenectady showdown, WUWT (Mar. 10, 2012), http://wattsupwiththat.com/2012/03/10/moncktons-schenectady-showdown/.
302
C.S. Pierce, The Scientific Attitude and Fallibilism, in Philosophical Writings of Pierce 54 (Justus Buchler ed., 1955). Upon this first, and in one sense
this sole, rule of reason, that in order to learn you must desire to learn, and in so
desiring not to be satisfied with what you already incline to think, there follows
one corollary which itself deserves to be inscribed upon every wall of the city of
philosophy: Do not block the way of inquiry. In his gloss on this passage,
Thomas Landon Thorson notes: The principle of fallibilism does not say that
we can never know the truth, but rather that we are never justified in behaving
as if we knew it. That is to say, we are never justified in refusing to consider the

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it forecloses options, cuts o and distorts debate, and,


thereby, declares truth rather than leaving the market open
for thought to command assent on its own.
But Waldron disagreesat least with respect to hate
speech. He says:
Suppose someone puts up posters conveying the
opinion that people from Africa are nonhuman
primates. No doubt, if this opinion were scientifically true, it might have implications for public
policy. And maybe there was a time when we
needed to have a great national debate about
raceabout whether there were dierent kinds of
human beings, inferior and superior lines of human descent, ranked in hierarchies of capability,
responsibility, and authority, and, if there were,
what the implications would be for justice, morality, and public policy. (194-95)
Maybe there was a time, he says, when we couldnt debate
social policy without raising the whole issue of race in this
sense. But that is not our situation today. We are not in
the throes of such a debate right now, and, with a nod to
Holmes, he says it would be fatuous to say that the importance of engaging in such a debate requires us to endure
the ugly invective of racial defamation in the marketplace of
ideas. Why? Because the fundamental debate about race is
overwon, finished.303
possibility that we might be wrong. The Logic of Democracy 122 (Holt,
Rinehart and Winston 1962).
303

One reason one might agree with Waldron here is that others of his leftist
mindset have tried to bully it to an end. As some commentators noted: No

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There are outlying dissenters, a few crazies who


say they believe that people of African descent
are an inferior form of animal; but for half a century or more, we have moved forward as a society
on the premise that this is no longer a matter of
serious contestation. (195)304
mainstream publisher could be found for Phil Rushtons (1994) Race, Evolution and Behavioreven the mail-order house Transaction pulped its 1999
abridgment of Rushtons book after threats from the U.S. social science community; Wiley withdrew The G Factor: General Intelligence and its
Implications (Brand 1996), and Jensen found his own The G Factor: the
Science of Mental Ability (Praeger 1998) rejected by Wiley and several
other mainstream publishers and given only a mail-order publication. Christopher R. Brand, Denis Constales, & Harrison Kane, Why Ignore the G Factor?
Historical Considerations, in The Scientific Study of General Intelligence: Tribute to Arthur Jensen (Helmuth Cyborg ed., 2003), as quoted in
James Kalb, Against [Inclusiveness]: How the Diversity Regime is
Flattening America and the West and What to Do About It (Angelico Press 2013). See also the bowdlerization of Jyette Klausens book on the
Danish cartoon crisis by the mainstream Yale University Press, along with
the host of academics, journalists, religious figures, and politicians who treated
Salman Rushdie as a pariah after the Islamist cleric Khomeini put a fatwa on
him, and who also, like Waldron, condemned the Danish cartoonists for offending Islamists in the first place. The Cartoons That Shook the World
(2009).
304

But, again, if the fundamental debate about race is overwon, finished,


why worry about a few crazies putting up ugly signs? A few crazies? Apparently, Waldron is not aware that Professor William D. Shockley, a Nobel
Prize-winning physicist, became a cause clbre at Stanford in the 1970s for arguing that Blacks were intellectually inferior to Whites. Mark S. Campisano,

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For Waldron the race debate305 has been won; a truth has
been established. Its settled science. Anyone who dissents
is crazy. Nothing of any serious importance is left to be
Note: Group Vilification Re-considered, 89 Yale L.J. 308, 329 (1979). Nor, apparently, has he heard of Professor J. Philippe Rushton, a Psychologist at the University of Western Ontario, who has argued a similar case, with the added twist
that Orientals are intellectually superior to both. J. P. Rushton, Evolutionary
Biology and Heritable Traits (with reference to Oriental-White-Black differences),
A paper prepared for the Symposium on Evolutionary Theory, Economics,
and Political Science: An Emerging Theoretical Convergence, American Association for the Advancement of Science, San Francisco, Ca. (Jan. 1989). Then
there is Professor Charles Murray, who, along with co-author Professor Richard Herrnstein, wrote The Bell Curve: Intelligence and Class Structure in American Life, parts of which discuss the controversial connection and importance of
race and intelligence in America. (Free Press 1994). Of late, Harvard Ph.D. Jason Richwine resigned from his post at the Heritage Foundation after it was
discovered that his doctoral dissertation, I.Q. and Immigration Policy, said
unpopular things about Hispanic immigrants. His mistake was to provide statistical evidence that Hispanic immigrants, even after several generations, had
lower IQs than non-Hispanic Whites. David Weigel, The IQ Test, Slate,
http://www.slate.com/articles/news_and_politics/politics/2013/05/jason_richwine_hispanics_and_iqs_the_heritage_foundation_scholar_began_researching.html.
305

Waldron never says what he takes to be the substance and/or boundaries of


this debate. Is everything said about race pass? If not, what is debatable and
what isnt? And who or what determines the debates boundaries? State authorities? Waldron? Or Matsuda, who also proclaimed the race debate over? See
Public Response to Racist Speech, supra note 43, at 2359; cf. Civil Libertarian, supra
note 93, at 350-51.

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said on this issue. We know what is true so there is no need


for any competition of the market.
By declaring an end to the debate, Waldron is at one
with Brian Dickson CJC in Keegstra who said the greater the
degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth.306 However,
even if Waldron were right to say the debate is over,307
whether or not some ideas are thought to be pass can hardly
be a test for determining whether they should be given protection. If this were an acceptable test, free speech principles
would protect only those who utter statements confirming
things we already knew, and only those ideas that were not
yet universally condemned. The free expression guarantee
would be limited to protecting only what we are certain we
know.
Holmes would surely remind Waldron that todays
truths might very well be tomorrows falsities, and it is altogether contrary to the search for truth to legislate an end to
it. The fact that you are certain does not mean that what you
306

Keegstra, supra note 58, at 762-63.

307

Despite the finality of his language, one gets the strong feeling that Waldron
is ambivalent about the debate being over at least as a factual matter. As Robert Post pointed out, Waldrons admission elsewhere that the fundamental
principles of the race debate are only more or less settled, likely suggests
such principles should be fundamental and beyond dispute. Post suggests:
That amounts to the proposition that persons should be prevented from communicating because in our view they have nothing to say. Interview with Robert
Post, in Hate Speech, supra note 65, at 27; Waldron, Hate Speech and Political Legitimacy, in id. at 336.

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believe is certain.308 Moreover, there is reason to think that


those who think the debate about race is over think so because they see it only in terms of genetics.309
Those such as Waldron are convinced that the only
reason race is a factor in politics today is because racists
make it a factor. Racists, he says, construct the world that
vulnerables must live in by means of their racist publications. But this view, as we saw, ignores a host of non-ideological and non-genetic, cultural, factors that compose this
world ranging from geography, demography, education, attitudes toward education and work, work histories, marital
practices, family stability, welfare availability, drugs and addiction rates, levels of and attitudes toward violence as well
as various other cultural and historical factors that are much
more likely creators of the world Waldron rightly deplores.310
Moreover, Theodore Dalrymple311 has found the same debilitating cultural qualities present in lower-class Whites in England which are also present in the Black underclass in America, so the explanation that racism and racist expression must
be the cause of the plight of Blacks in America is as false as it
is simplistic. Just as Waldrons MacKinnonite argument that
308

As Holmes said, Certitude is not the test of certainty. We have been cocksure of many things that were not so. Natural Law, 32 Harv. L. Rev. 40
(1918), as quoted in Blasi, supra note 296, at 20.
309

See, e.g., Sowell, supra note 113.

310

Id. See Dinesh DSouza, The End of Racism: Principles for a Multicultural Society (Free Press 1995). See also Stephan Thernstrom & Abigail Thernstrom, America in Black and White: One Nation Indivisible (Simon & Schuster 1997).
311

Dalrymple, supra note 113.

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pornography causes women to be treated in a sub-human


fashion is wide of the mark, so also is his claim that racist
speech is the cause of the diculties vulnerables have negotiating their betterment.
Moreover, as noted above, there is something puzzling about Waldrons claim that a group libel statute is necessary to monitor a debate he believes is essentially over. In
Hate Speech and Political Legitimacy he tells us that it is
over in the sense that intelligent opinion has settled the
matter, and it is inconceivable that public policy could proceed on any other basis.312 But, if this is true, the question
still obtains: what, then, is the need for any hate speech law if
intelligent opinion is more or less settled? His answer:
banning hate speech should not be understood as a way of
influencing a great national debate about racial or sexual
equality or religious tolerance, nor should it be seen as a way
of contributing to the ending of that debate (as though without the intervention of these laws the racists might win.)
Well, then, if the national debate is not influenced by a ban
on hate speech, and if the ban is not a contribution to end
the debate, and if the racists cant win any of these debates,
why are speech suppressive laws, supposedly enacted to prevent them from winning the debate, at all necessary? Because, Waldron says: the evil that hate speech legislation seeks to
remedy is not the evil of racists thinking or believing certain things.
Rather, it is the evil of these racists attempts to create the impression
that the equal position of vulnerable minorities in a rights respecting

312

Didnt intelligent opinion settle the matter once before as well? See notes
148-54 and accompanying text at pp. 117-19.

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Chapter VIIEnding Debate in the Marketplace of Ideas

society is less secure than is implied by the societys actual foundational commitments.313
Really? What a letdown! After all this discussion of
the harm in hate speech, we are told not that censorship is
necessary to protect vulnerables and society from any immediate or, even, short-term serious danger; nor that there is
any danger that anyone with half a brain in his head will be
convinced by Vulgarmans message? No: everyones free expression rights are to be regulated, Waldron tells us, just so
Vulgarmans attempts to infect his targets with fear and insecurity by exposing them to the rabid spittle dripping o his
tonguesomething most likely to infect only its hostwill
be unsuccessful! Like others in its genre, this argument fails
because it simply assumes that without regulation the attempt, however unlikely, might succeed!314
313

Hate Speech, supra note 65, at 337 (i.e., the second and third narratives
Waldron presents at the beginning of his book. Waldron at 2-3. So I should be
censored now because if I am not, someone might come to believe what I say!
Good old bad tendencyalways a fine example of how not to treat people as
equals!
314

And that is precisely why the debate must be shut down. In this Waldron is
not alone. For many progressive liberals any debate about issues they are certain are settled must be settled as well for everyone else. For unless the participants have the correct positions on issues such as homosexuality, gay marriage, climate change, smoking, illegal immigration, Islam, terrorism, female circumcision, honor killing, and rape culture, to name but a few, they should
shut up altogether or speak about something else.
In what are undoubtedly some of the finest examples of legislative linguistics, progressives have declared that debates on such matters are now
settled. Homosexuality is an unmixed good and its sexual practices should be

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Chapter VIIEnding Debate in the Marketplace of Ideas

Given this argumentative letdown, one wonders why Waldron went out of his way to attack his former teacher, the
late Ronald Dworkin. Dworkin says hate speech laws create
legitimacy problems because they suppress the expression of
a select group of people on the basis of their political content, thus, denying them315 a voice in democratic decisiontaught in K-12 classes. And who, other than homophobes, could be against gay
marriage? For the arguments of three intelligent people who are, see Sherif
Girgis, Ryan T. Anderson & Robert P. George, What is Marriage?
Man and Woman: A Defense (Encounter Books 2012). Global warming is, as
we have seen, settled science, and those who deny it and its anthropogenic basis should, perhaps, be fined or imprisoned, or even, perhaps, killed. Borders
should be open to all, and those who oppose open borders are xenophobes or
racists or both. Islam is clearly a religion of peace and, despite the many excesses of its radical adherents, its good name must be protected from the rantings of Islamophobes. Islamic terror is the terror that does not dare to be identified by name. Female circumcision is a something they do in other cultures
and who are we to judge? The same is true of honor killing, and if it happens
in North America, it is to be called domestic violence. Finally, that there is a
rape culture in our universities is also settled science. Anthony Furey, The
settled science of rape culture, Toronto Sun (Apr. 18, 2014), http://www.torontosun.com/2014/04/18/the-settled-science-of-rape-culture. In all of these matters, unless you hold the correct positioni.e., the same position as those
who are progressiveyou should hold your tongue.
315

As noted earlier, Waldron says that a properly designed hate speech law
would not prohibit expression of their views because the law would only punish
the most threatening, abusive, and insulting instances of hate speech. Haters
would still be free to say their pieces in more moderate language. However, as
Waldron himself recognizes, whether, for the speaker, the more moderate language would be a satisfactory stand-in for the preferred invective is another

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making. Drawing on the metaphors of upstream (hate


speech laws) and downstream (laws against discrimination,
violence, etc.), Waldron writes:
Those who support the upstream laws often say
that they are necessary in order to address the
causes of violations of downstream laws. They say
that if we leave hate speech alone, then we are
leaving alone the poison that leads to violence and
discrimination downstream. Dworkin turns the
tables on this argument by saying that if you interfere coercively upstream, then you undermine
political legitimacy downstream. (178)
This might perhaps be true, if Dworkin actually believed that
upstream hate speech laws were needed to check the causes
of downstream ills; but it is not clear that he does, and
matter altogether. As Ivan Hare has argued: It is no answer to say that the
speaker can re-phrase their (sic) contribution in more civil terms and avoid
liability. The topics covered typically by hate speech laws (race, religion, homosexuality) engender strong emotions and speakers should be entitled (as in
other areas of public debate) to express themselves forcefully. The harm of hate
speech legislation, supra note 93, at http://www.eurozine.com/articles/2012-0424-hare-en.html. See also Ronald Dworkin, The Right to Ridicule, New York
Review of Books, Mar. 23, 2006, at http://www.nybooks.com/articles/archives/2006/mar/23/the-right-to-ridicule/. Moreover, whether the sanitized
version would accurately convey the ugly emotions underlying the reality of
racist thought is also highly doubtful. Letting racists, etc., rant in their preferred hateful ways communicates most vividly the ugliness of their messages
without the likelihood of many converts. See, e.g., Civilizing Public Discourse, supra note 284, at 301. See also Karst, supra note 284 (a civility requirement is bad
news for Blacks, gays, and women).

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Waldron never shows that he does. All we know is that Waldron thinks hate speech and pornography are important
causes of discrimination and violence, but that Dworkin
thinks we need not censor hate speech or pornography to
protect against these. Moreover, by permitting hatemongers
to speak, Waldron says Dworkin is saying that no majoritarian laws can be legitimate unless there is some provision for
this important debate to continue, so that the losers (the racist and the bigots) have a chance to persuade the majority of
the truth of their position the next time around. (196)316
However, as Waldron should know, this is not Dworkins position; it is but a caricature of it, as is this description as well:
if you want to be tough on crime, legitimately tough on offenses like racial violence and discrimination, then you have
to be tolerant of the causes of crime; that is what Dworkins
position amounts to. (179) No, this is not Dworkins position either; it is, again, what Waldron says is Dworkins position.
The only evidence Waldron advances to support
either of these claims is from a passage in Freedoms Law
where Dworkin speculates that even if it could be shown, as
a matter of causal connection, that pornography is in part responsible for womens alleged economic diculties or that it
contributes to an unequal economic or social structure, banning pornography would still be unconstitutional:
It would plainly be unconstitutional to ban
speech directly advocating that women occupy inferior roles, or none at all, in commerce and the
professionsSo it cannot be a reason for banning
316

As a criticism of Dworkin, this charge is puzzling given that Waldron himself


says he does not believe Vulgarmans speech will ever bear productive fruit.

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Chapter VIIEnding Debate in the Marketplace of Ideas

pornography that it contributes to an unequal economic or social structure, even if we think it


does.317
In his gloss on this passage, Waldron says Dworkin is suggesting that the delegitimizing eect of laws suppressing
free speech should lead us simply to dismiss from consideration propositions about the harm hate speech causes. (180)
However, nothing in the passage quoted suggests that
Dworkin believes pornography has any serious connection to
the actual downstream problems women face. As the qualifier even if leading o the quoted passage obviously suggests, he is simply granting, arguendo, that it may be in part
responsible for or, perhaps, contributes to these problems;
hardly a ringing endorsement of full-blown causation even
under the purely speculative terms of the hypothetical. Waldron tries to make something out of the last sentence in the
quote by saying that Dworkin is suggesting that the social
and economic eects of pornography are simply not worth
being considered as reasons for censorship (180), but
Dworkin is not saying that. All he is saying is that since
speech directly advocating and, perhaps, resulting in the
subordination and silencing of women is constitutional, so
also must be speech that simply contributes to these results.
Indeed, nothing in the entire quotation amounts to
anything more than speculation on Dworkins part about the
constitutionality318 of these feminist arguments; it says nothing
317

Dworkin, supra note 92 at 180.

318

That Dworkin is focusing his argument strictly on the constitutionality of


this argument is also supported by his contention a few paragraphs on that

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Chapter VIIEnding Debate in the Marketplace of Ideas

whatever about the actual causal connections, if any, between


pornography and womens alleged economic and social diculties, and so provides no evidence either that Dworkin
thinks there are any. Waldron may believe, as he clearly does,
that pornography and hate speech are the causes of the
downstream evils of violence and discrimination, but this
does not give him license to distort Dworkins argument to
force a faux agreement.
Nevertheless, having settled the so-called race-debate
for everyone, and for all time, and having called Dworkins
blu,319 Waldrons hate speech argument encounters two
line-drawing diculties. First, while he is aware that it is not
a simple matter to draw the line between hate speech and all
other expression, it is not at all clear that he can either draw
Judge Easterbrooks claim that even granting for the sake of argument all the
harmful effects supporters of the Indianapolis Ordinance believe pornography
causes, the government must leave to the people the evaluation of ideas because [a]ll of these unhappy effects depend on mental intermediation [and]
[t]hat is right as a matter of American constitutional law. Id. at 221.
319

Hate Speech, supra note 65, at 339-40. Waldrons bluff claim is that
Dworkin retreated from his original view that democratic legitimacy was entirely destroyed by any suppression of a speakers expression to a much more
moderate claim that hate speech laws do not spoil the legitimacy of these
[downstream] laws altogether. Dworkin responded by saying, first, that he
never held the view Waldron attributes to him, and that he said in Is Democracy Possible Here? 97 (Princeton University Press 2006) that legitimacy
was a matter of degree (a view which he believes Waldron also holds), and
that not every law that is spoiled by a defective democratic process justifies
citizen rebellion. Second, he says, We can hardly justify a defect in political
legitimacy by arguing that it might have been worse. Reply to Waldron, in Hate
Speech, supra note 65, at 341.

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the line or tell the dierence. Second, though he himself appears unable to tell the dierence in any practical way, he attributes to government the ability to do so, ignoring the fact
that government ocials, to say it again, are not always the
open, honest, transparent, disinterested, and knowledgeable
souls they must be if they are to perform the task Waldron
would assign them.

251

n
VIII
Hate Speech Versus Good Speech:
Line Drawing and Application
Problems
Lets assume that, contrary to everything here said,
Waldron has convinced us of the moral value and urgent
need for a group libel statute. Weve bought into his argument that such a statute is necessary to protect the ever-expanding class of vulnerables. We believe that inserting even
the smallest amount of defamatory expression into the public
discourse may eventually compromise the social standing of
any number of vulnerable minorities. We believe, with him,
that private individuals, no less than state ocials, have an
obligation to refrain from publishing anything that threatens
the social standing of vulnerables; that private individuals
must partner with state ocials in this project; and that for
the government to tolerate the impugned expression is, in
fact, to promote hatred against its targets. Finally, lets assume, as well, that there is no valid reason why people must
use vulgar and harsh language and cannot moderate their discourse and say similar things in a more civilized tongue.
Nevertheless, even if we grant all this, even if we accept the
moral premises of Waldrons argument for a group libel statute, there still remain ever-present practical and political
problems of application.

Chapter VIIIHate Speech Versus Good Speech:


Line Drawing and Application Problems

Defamatory expression is neither self-evident, nor


self-identifying, nor self-interpreting. Identifying examples of
expression which may or may not be considered defamatory
often varies from person-to-person, group-to-group, and context-to context. What one person or group might find defamatory another person or group might not, and what at
one time or place might be considered defamatory, may not
be so considered at another.320 The problem for good faith
speech suppressionists is that defamatory expression is not
self-identifying; it must be interpreted, and the emotions and
experiences as well as the ideologies and interests of the person or group doing the interpreting or allegedly being targeted are critical factors in the identifying process. Identifying instances of group defamation, then, is an inherently subjective aair with winners and losers at both ends of the censorial process. Moreover, dierent sets of social, economic,
and political interests stand to benefit or lose depending on
how broadly or how narrowly the law is applied. The same, of
course, is true of their respective expressive interests. How
narrowly or extensively a group libel law is applied will tell us
how far free expression rights reach as well as how important
they are considered to be.
Which expressive instances does Waldron believe fall
within the rubric of group defamation to be punishable by
the criminal law? This is not an easy question to answer because he never explicitly identifies the expressive instances to
be banned, and so it is not clear whether every example he
lists as hate speech is also one he believes should be criminally liable. However, in the absence of any clear guidance, I
shall assume that every example he lists of hate speech is also,
320

As, for example, was much of the expression of the Progressive Movement
in the early twentieth century. See Chapter III.

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caeteris paribus,321 one that should be subject to serious investigation, if not always to criminal prosecution. What follows is
a list of such instances drawn from pages in Waldrons text.
1.
2.
3.
4.
5.

6.
7.
8.
9.
10.
11.

A sign that says: Muslims and 9/11! Dont serve


them, dont speak to them, and dont let them in. (1)
A photograph with the slogan: They are all called
Osama. (1)
A poster on the outside wall of a Mosque saying: Jihad Central. (1)
A sign saying: Jews and Dogs Prohibited (2)
Islamophobic blogs, cross-burnings, racial epithets,
bestial depictions of members of racial minorities,
genocidal radio broadcasts in Rwanda in 1994, and
swastika blazoned Nazis marching in Skokie, Illinois,
with placards saying Hitler should have finished the
job. (34)
Muslims are terrorists. (57)
Jews created the Holocaust to gain sympathy. (57)
Depicting vulnerable minorities as insects or animals. (58)
Signs saying Muslims Out! or No Blacks Allowed!
(59)
[R]acist or homophobic or Islamophobic slogans.
(65)
[P]osters proclaiming that members of racial minorities characterizing them as bestial or sub-human or
proclaiming that members ofminorities are criminals, perverts, or terrorists, or leaflets saying that followers of a certain religion are threats to decent people and that they should be deported or made to dis-

321

Subject, of course, to evidentiary results, mens rea satisfaction, legitimate


defenses, etc.

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12.
13.

14.
15.
16.

17.
18.
19.

appear. [B]anners and swastikas celebrating or excusing the genocidal campaigns of the past. [s]igns
indicating [minorities] are not welcome in certain
neighborhoods or in polite society generally, and
flaming symbols intended to intimidate them if they
remain. (66)
[S]igns saying Christians only or Churches
Nearby. (68)
[A]ttempts to advocate publicly for the exclusion or
subordination of a given group, or their disenfranchisement, segregation, enslavement, concentration,
deportation, or whatever. (70-71)
[Demonizing] a minority as cockroaches and vermin,
day after day. (72)
[S]porting American flag decals. (88)
[a]dvertising billboards, subway placards, and innumerable television screensin ways that demean one
large class of its citizens, ways that convey a degrading message about their sexuality, ways that highlight
a particular range of opportunities and activities presented as appropriate for them to the exclusion of a
large number of other activities and opportunities, or
ways that portray as normative a kind of subordination in relationships that is at odds with the idea of
an autonomous person working out her own destiny
under conditions of justice and dignity. (89).
Niggers Go Back to Africa! [A] burning cross or
noose placed on someones door. (118)
[A] claim that Tea party politicians cannot be
trusted with public funds or that they are dishonest.
(121)
[L]eaflets libeling Muslims as terrorists orpublic
portrayals of peoples of other races as apes or gibbons. (149)

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There are likely more instances of expressions Waldron


would target that I might possibly cite, but the above should
be sucient for the point I want to make, which is that the
range of examples he oers up as possible candidates for
prosecution is so broad that it would cast a pall over debates
about immigration, slavery, segregation, armative action,
education policy, voting rights, public washrooms, Black or
women only colleges, hiring policy, discrimination in housing, the workplace, and the schools, welfare policy, welfare
recipients, food stamps, drug use, police investigations, arrests, prosecutions, capital punishment, prison populations,
concealed carry laws, The Holocaust, other holocausts, religious liberty, religious practices, religious beliefs, gay marriage, homosexuality, bigamy, polygamy, polyandry, bestiality,
Two-Spiritedness, Intersexism, Queers, Questioning, Aboriginal claims and status, energy policy, pornography, budgetary policy at the local, state, and federal levels of government,
certain government policies and practices, and many more
hot button issues too numerous to list.
Lets look first at the specific examples he lists; by
these I mean the actual words that he singles out as uncontroversial group libel. These include numbers 1-9 on the list
along with 12, 14, 15, and 17-19. All of these are specific utterances which, if expressed in print and displayed publicly,
would likely constitute group libel on Waldrons reading.
Some of them, for example, Niggers Go Back to Africa! or
signs saying No Blacks Allowed! or Jews and Dogs Prohibited! are pretty standard fare for your basic confused neoNazi wannabe working out of his or her parents basement;
though it does not seem likely that such expressions would
gain many adherents who were not similarly described. Nevertheless, assume for a moment that such expressions were to
be targeted and that there were no real speaker related First
Amendment issues at stake, what would be the eect of pun-

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ishing such obviously hateful expressions with criminal liability? As argued in Chapter VI, the most vulgar would be the
least eective, and the more intelligent racists, etc., would
clean up their language to avoid punishment. Again, doing so
would likely persuade more peopleexactly what Waldron
says he does not want to happen.
Second, the above list contains generalized statements
about the types of speech that would constitute instances.
These can be found in numbers 5, 11, 13, and 16 on the list.
These dier from the specific linguistic examples, just considered, which easily may be evaded by changing the words
and tenor of the expression. Such more generalized instances, unlike the specific linguistic expressions we have just
considered, constitute umbrella-like categories which include
any number of instances, and which, therefore, require a fair
bit of interpretation to locate and to cabin their proper application. Such instances raise vagueness issues because they
do not clearly indicate which expressions in particular are
targeted by the law, and, as a result, they do not give speakers
fair notice as to what the law forbids. On the administrative side, such vagueness raises overbreadth concerns in
that the speech captured by the statute may include speech
that ought not to be targeted, and, thus, state ocials are inevitably permitted too much enforcement discretion. The
first raises problems for speakers, the second, for state ocials as well as everyone else.
For example, the categories racist, or homophobic or
Islamophobic slogans lack identifiable boundaries and, thus,
leave open for interpretation just which specific expressions
are to be included within each category. Expressions do not
enter the linguistic world pre-packaged as racist, homophobic, and Islamophobic; unless they are meant simply as
epithets, they need definitions to establish their respective

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boundaries and to delineate clearly and unambiguously expressive instances to which they are to be applied. However,
even if they are meant to be more than mere epithets, terms
such as these are bound to be highly contentious, politically
loaded, and potentially infinitely expansive. Christopher
Caldwell tells us that in an inquiry into the murder of a black
man in London by the British Home Oce, a racist incident was defined as any incident which is perceived to be
racist by the victim or any other person. Caldwell remarks
that the idea that racism was whatever anyone says it was
became the working norm in many European countries.322

322

Reflections on the Revolution in Europe: Immigration, Islam, and


the West 89 (Doubleday 2009) [hereinafter Reflections]. Commenting on
the London inquiry into the murder of Stephen Lawrence, a black male, Robert Skidelsky said the Report defines racism as anything that is perceived to be
racism, and calls the notion that the perception of a fact makes it a facta legal and philosophical monstrosity. The Age of Inequality, in Institutional
Racism and the Police: Fact or Fiction 3 (David G. Green ed., 2000). See
also the 1999 Report on the murder by Sir William Macpherson of Cluny, The
Stephen Lawrence Inquiry, which at one point says that any collective police dissent from the racist explanation of the 1993 stabbing death of Lawrence is a
manifestation of their ownunwitting collective racism. at 19: 38. Sir William,
meet Charles Lawrence III! The causes and consequences of such slovenly but
politically correct thinking are well spelled out by Roger Scruton in his discussion of the 1997 to 2013 Rotherham scandal, in which the responsible authorities did nothing for fear of being labeled racist while 1400 young girls were
raped and enslaved by males, the majority of whom were from Pakistan. Roger
Scruton, Why Did British Police Ignore Pakistani Gangs Abusing 1,400 Rotherham
Children? Political Correctness, Forbes (Aug. 30, 2014),
http://www.forbes.com/sites/rogerscruton/2014/08/30/why-did-british-po-

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Surely, it needs no great eort to conjure up the many


dierent things which have been labeled racist in recent
years. Arguments of opponents of welfare reform, armative

lice-ignore-pakistani-gangs-raping-rotherham-children-political-correctness/print/. The 2014 Report by Alexis Jay on which Scruton bases his analysis:
Rotherham Metropolitan Borough Council, Independent Inquiry
into Child Sexual Exploitation in Rotherham (19972013), 2014
(U.K.), available at http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham. For an expos on the Rotherham case
from the whistleblower herself, see Jayne Senior, Broken and Betrayed
(Pan 2016).
Here at home, on the other hand, colleges are doing their parts to
fight against such traumas by issuing trigger warnings designed to ensure sensitive individuals are not exposed to uncomfortable subjects. Colleen Flaherty, Trigger Unhappy, Inside Higher Ed (Apr. 14, 2014), https://www.insidehighered.com/news/2014/04/14/oberlin-backs-down-trigger-warningsprofessors-who-teach-sensitive-material. At Portland State University, for example, a student who sent out flyers purporting to create a murder-free zone
to counter the colleges gunfree zone was prevented from doing so because
the flyers were thought by the administration to be libelous, triggering, and
even dangerous. Robby Soave comments: When a college deems it necessary
to prevent some students from expressing mildly controversial ideas because
other students are emotionally incapable of handling themand could even react violently!its no longer collegeIts an insane asylum. Portland State University Will Shut Down Political Activity If Its Triggering, reason (July 16,
2015), http://reason.com/blog/2015/07/16/portland-state-university-will-shutdown.

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action, immigration policies,323 along with a welter of other


programs and policies, no matter how careful their propo323

While the use of the term illegal immigrant as yet hasnt quite been officially banned, the University of California (Berkeley and UCLA) student unions have decided it is racist, offensive, unfair, and derogatory to label someone as such. Student senators at U.C. (Berkeley) unanimously declared that
the word illegal is racially charged, dehumanizes people, and contributes to
punitive and discriminatory actions aimed primarily at immigrants and communities of color. Jennifer Kabbany, UC Berkley Student Government Bans
Term Illegal Immigrant, The College Fix (Nov. 8, 2013), http://www.thecollegefix.com/post/15260/. Oh yes, and in case you havent yet been informed,
peanut butter and jelly sandwiches, long a staple in school kids lunch-boxes,
have now also been determined to be racist! Nathan Harden, Peanut Butter and
Jelly Sandwich is Racist, Says Portland School Official, The College Fix (Nov.
21, 2013), http://www.thecollegefix.com/post/15414/. Then theres Duke University where speech suppressionists have decided that any language that delegitimizes homosexuality, such as phrases like Man Up, Thats So Gay, or
Dont Be a Pussy, and words like Tranny and Bitch should be banned
just part of the progressive You Dont Say movement. Claire E. Healey, Man
Up, Dont Be A Pussy Labeled Offensive Language at Duke University, The College Fix (Apr. 28, 2014), http://www.thecollegefix.com/post/17212/. As
MSNBCs Ed Schultz sees it, opposition to raising the minimum wage is also
obviously racist, as is any reduction in food stamps, opposition to Obamacare,
or Medicaid expansion. MSNBCs Ed Schultz: GOP not raising minimum wage is
racist, Examiner (May. 2, 2014), http://www.examiner.com/article/msnbc-sed-schultz-gop-not-raising-minimum-wage-is-racist. For more examples, see
Andrew Stiles, Whats Racist, Whats Not (As of Friday, Oct. 3, 2014), The Washington Free Beacon (Oct. 3, 2014), http://freebeacon.com/blog/whats-racist-whats-not-as-of-friday-oct-3-2014/.

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nents may be to avoid falling afoul of the oense, have commonly been assailed as racist, so often that, as noted above,
the word carries no precise meaning other than as a weapon
in the so-called culture wars. The same is true of homophobia. Simply opposing same-sex marriage has led people
to be targeted as homophobes, as has even the most anodyne opposition to any part of todays gay agenda. Even
changing the lyrics in a Christmas song has been declared to
be homophobic.324 Traditional arguments for heterosexual
relationships have been labeled heterosexist and homophobic. Lukewarm supporters of gay rights have been charged
with mere toleration, as opposed to active support. Apparently, the former signals insucient enthusiasm for the
identities and agendas of LGBTers. Similar claims have been
leveled against Islamophobes, whose expressions may question the idea that Islam is a religion of peace, link Islamic
texts or Muslims to terrorist acts, or simply suggest cutting
back on immigration from Muslim-dominated countries.
Such speech is labeled hate speech by those who are often either Islamophiles or simply fearful of being labeled Islamophobes themselves.325 The long and the short of this is that
324

Hallmark Faces Backlash For Changing Lyric From Gay To Fun in Deck The
Halls, CBS St. Louis (Nov. 1, 2013), http://stlouis.cbslocal.com/2013/11/01/hallmark-faces-backlash-for-changing-lyric-from-gay-tofun-in-deck-the-halls/.
325

Films screening sparks religious controversy, CBC Manitoba (May. 29, 2016),
http://www.cbc.ca/news/canada/manitoba/film-s-screening-sparks-religiouscontroversy-1.600325. Moreover, unlike homophobia, which obviously is not
rooted in fear of violence by homosexuals, the only thing phobic about Islamophobia is the very real fear generated by just over 28, 758 terrorist attacks
by denizens of that religion since 9/11. That this fear should be called irrational by Waldron and others of the same mindset is nothing short of absurd.

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terms such as racist, homophobia, or Islamophobia


have become so contested as to have little or no utility in political debate other than as weapons on the part of leftist
identity groups to silence anyone not in accord with their
particular political agendas.326
Consider also the possible reach of types of advocacy
that would be outlawed in number 13 on the list: attempts to
advocate publicly for the exclusion or subordination of a
given group, or their disenfranchisement, segregation, enslavement, concentration, deportation, or whatever. Outlawing the advocacy of excluding or segregating a group could
See, e.g., Mark Durie, Islamophobia Comes to Canberra, Middle East Forum
(May 31, 2013), http://www.meforum.org/3523/islamophobia-australia. See also
What Makes Islam So Different?, http://www.thereligionofpeace.com/ and
List of Islamist terrorist attacks, Wikipedia, http://en.wikipedia.org/wiki/List_of_Islamic_terrorist_attacks.
326

Mozilla CEO Brendan Eich was forced to resign in 2014 after being subject
to torrents of abuse from gay rights activists, many of whom were among
Mozillas workforce. His crime? He donated $1,000 in support of Proposition 8
in California which outlawed gay marriage. He obviously was unaware that the
gay marriage issue was settled science. In any event, this was another fine example of libertarian fascism: intolerance in the name of tolerance, exclusiveness in the name of inclusiveness, and uniformity in the name of diversity.
Abby Ohlheiser, Mozillas CEO Resigns Following Criticism of his Anti-Gay Marriage Donation, The Wire (Apr. 3, 2014), http://www.thewire.com/technology/2014/04/mozillas-ceo-resigns-following-criticism-of-his-anti-gay-marriage-donation/360132/. And then there was that same kind of tolerance
LGBTers displayed in their Chick-fil-A actions in 2012. Chick-fil-A same-sex
marriage controversy, Wikipedia, http://en.wikipedia.org/wiki/Chick-filA_same-sex_marriage_controversy.

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possibly label anyone who advocates black or women-only


schools or universities, or even segregated washrooms or dormitories, as racist and/or sexist, or, even, transphobic! As
well, it would arguably label as racist anyone who advocates
the disenfranchisement of convicted felons, a large portion of
whom is either Black or Latino. The same might befall anyone who would advocate the imprisonment or deportation of
i!egal immigrants or who might advocate changing the Fourteenth Amendment to prevent the phenomenon known as
anchor babies. A bit more thought would certainly produce
more examplesparticularly given that or whatever at the
end of the statementbut the above is certainly enough to
indicate the range of currently protected expression that
would be threatened by such a statute.
Moreover, the problem with not knowing exactly
what will pass muster doesnt only aect what you or I actually say; it also aects what we dont say for fear of the social
opprobrium that may descend on our heads or the political
investigation and/or prosecution that may follow. Though
the fear of saying something that might conceivably lead another to call one a racist, etc., is real and definitely speech
suppressive, it is not something that necessarily should silence anyone, and it pales into insignificance next to the fear
that a criminal investigation and/or prosecution creates; it
lasts only as long as those who are attacked remain fearful.327
However long it lasts it is no fun to be mobbed by the righteous and driven into silence.
327

Of course, if we follow Waldrons reasoning, labeling people as racists, sexists, homophobes, or Islamophobes these days surely should constitute an assault on their claims to equal citizenship. However, despite the assault, dont
count on him agreeing that that sort of speech should be suppressed. Again, as a
double-standard suppressionist, it all depends on who says what to whom.

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Moreover, the problem created by these open-ended


terms is not only that they permit almost boundless interpretive possibilities, but also that they are to be applied by state
ocials who are themselves often advocates and parties to
the causes they are called on to determinewith all the possibilities of corruption this situation permits. Again, Waldron gives no indication that he is either aware of or cares
about the problem Madison addressed, much less that there
is the distinct possibility that his hate speech statute might
well be used to target groups and individuals that state ocials dislike for partisan political reasons.328 Indeed, he seems
oblivious to such corruption, seeing instead, like all nave
leftist-liberals, only good intentions in government attempts
to provide assurance to vulnerable minorities.
Furthermore, except for one instance where he actually anticipates the dangers of identity politics for the argument he is proposingnamely, that such politics makes it
dicult to distinguish between an attack on a belief and an
attack upon a person (131-136)the bulk of what he says
about censorship depends for its acceptability on a conception of state ocials acting more on the model of enlightened statesmen than on Madisons judges and advocates.
But even if state ocials in charge of interpreting and
prosecuting oenders were as pure as Caesars wife, the
vagueness and overbreadth problems would remain. Speakers
would still have no clear guidelines as to what may be said
328

As happened, for example, when low and high ranking officials in the IRS
targeted the applications of Tea Party and other conservative groups for tax
exempt status while permitting pro-Obama organizations applications a quick
OK. Many of the questions these corrupt officials wanted answered directly infringed the free expression rights of those targeted.

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without running afoul of the law, and so they would reasonably tend to avoid saying anything on controversial issues that
even remotely could be interpreted as hateful. Moreover, the
same vagueness that troubles the speaker also troubles law
enforcement ocials. They have to make the same judgments as speakers as to whether any particular statements violate the statute. And how are they to do so? Presumably, in
considering any particular putative oense, they must first
decide whether the words uttered breach the statute, and if
so, whether they were intended by the speaker to create the
problem the law was designed to rectify. In this light, Waldron seems particularly enamored of the United Kingdoms
Public Order Act 1986 which, in his words,
prohibits the display of any written material
which is threatening, abusive, or insultingif its display is associated with an intention to stir up racial hatred. No oense is committed if the same
material is not presented in a threatening, abusive, or insulting manner, or if the person concerned did not intendthe written material, to
be, and was not aware that it might be, threatening, abusive, or insulting. (190, emphasis in original)
This statute is certainly more speech protective than the various human rights statutes that dot the provinces of the Canadian landscape,329 but it is not without serious inroads on

329

But see Chapter IX, which suggests that recourse to such commissions is becoming a useful substitute for prosecutions under the Criminal Code. See, e.g.,

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freedom of expression. For example, what is a threatening


manner?330 And how is it to be distinguished from predictive or cautionary manners? Is the statement You Muslims better leave now, or else! a threat, a prediction, a
warning, or even simply a wish? A moments thought will
suggest the choice is not easy, but it matters greatly what is
meant since the wrong interpretation could land you a visit
from the police and maybe a full-blown investigation, prosecution, and conviction. Add to this the fact that determining
the question is both person and context dependent.331 For example, Some people, as Franklyn Haiman suggested, feel
intimidated by a nasty look or mildly critical comments; others would not budge if a bulldozer were about to plow into

Ezra Levant, Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights (McClelland & Stewart 2009)
[hereinafter Shakedown].
330

In Britain, apparently, a threatening manner consists of reading in public


Winston Churchills assessment of Islam in his The River War. Lizzie Parry,
Arrested For Quoting Churchill, The Daily Mail (Apr. 28, 2014),
http://www.dailymail.co.uk/news/article-2614834/Arrested-quoting-WinstonChurchill-European-election-candidate-accused-religious-racial-harassmentrepeats-wartime-prime-ministers-words-Islam-campaign-speech.html.
331

Some might here object that we could use a reasonable person, or even
something like a reasonable victim standard, but such standards, though ostensibly objective are notoriously subjective. See, e.g., Mayo Moran, Who is the
Reasonable Person?, 14 Lewis & Clark L. Rev. 1233 (2010). See also Mayo Moran, Re-thinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford University Press 2003).

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them.332 Nor would a threat necessarily be productive of


harm if issued by someone who was incapable, for whatever
reasons, of carrying it out. Of course, one might say, you
must intend what you say to be a threat. True enoughin
some venues;333 however, on what basis is the determination

332

Speech Acts and the First Amendment, supra note 287, at 17. To determine the obscene from the not obscene, Canada has rejected the average person standard of American courts in favor of a community standards of tolerance test in which What matters is not what Canadians think is right for
themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it. R v Butler [1992] 1 SCR 452 at 577,
595, quoting Towne Cinema Theatres v The Queen, [1985] 1 SCR 494 at para 34.
Unfortunately, this test not only heaps paternalism on top of subjectivity; it
also adds a strong dose of incoherence as well since on its logic all Canadians
may conclude an expression is both obscene and not obscene.
333

In Canada, human rights tribunals can convict alleged hate speech offenders
on a basis far less strict than specific intent. The test is whether a reasonable
person, aware of the context and circumstances, would view the expression as
likely to expose a person or persons to detestation and vilification on the basis
of a prohibited ground of discrimination. Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11, [2013] 1 SCR 467 at para 59 [Whatcott]. Even the
intent provision in its hate speech law (s. 319(2)), has been interpreted to be
satisfied by a showing of willful blindness, a standard much lower than, and
more easily satisfied than, specific intent. See R v Harding (2002) 57 OR (3d).
For years, some mainstream Canadian Jewish groups, and even a law commission in 1986, attempted to cashier the intent provision altogether. Moreover, it
is difficult to understand Waldrons commitment to a specific intent standard
when he believes (1) that the harm so heavily outweighs the speech interest; and

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to investigate made in the first instance, if not on basis of the


words uttered? And if a statement is determined to be a
threat, isnt it pretty much clear that it was also presented in
a threateningmanner? And, of course, why would you
threaten vulnerable group members unless you wanted to
stir up racial hatred? For many, just as with Bad Tendency, the intent lies buried in the expression itself.
Moreover, to what extent is an intent to stir up racial
or religious hatred satisfied by, say, Blacks marching and
shouting anti-White power slogans in predominantly white
communities ostensibly to create enough political tension to
forward their claims of racial grievances? As A. Alan Borovoy
put it, hatred is a nebulous and, therefore, dangerous concept:
Our experience tells us that freedom of speech is
often most necessary when it creates some level
of tension or unrest. The late Martin Luther
King, Jr., for example, referred to his own tactics
(2) that he speaks fondly of the requirement of Article 20(2) of the International Covenant on Civil and Political Rights which, according to him, says
that expressions of hatred likely to stir up violence, hostility, or discrimination
must be prohibited by law. Waldron at 29 (emphasis added). Waldrons version of the Article is a paraphrase. Actually, it reads: Any advocacy of National, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law. United Nations Human Rights
Office of the High Commissioner (Dec. 1966), available at
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (emphasis
added). My point is neither the Article nor Waldrons gloss on it says anything
about an intent requirement, much less, whether it should be general or specific.

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as an exercise in constructive tension. The problem, then, is: how does a blunt instrument like
the criminal law distinguish between destructive
hatred and constructive tension?334
An intent to stir up hatred is not something that is obvious, unambiguous, and unidirectional. Even the most evenhanded application of hate speech laws will inevitably produce investigations and prosecutions that might seem reasonable to the police but are contrary to the laws true purpose.335
Nor does the term abusive do anything other than
exacerbate the vagueness problem. Whether or not an expression is abusive or uttered in an abusive manner is so
utterly subjective as to render the term almost boundless. Is
334

When Freedoms Collide, supra note 190, at 42. In terms of the vagueness
surrounding the term hatred, Borovoy recently writes nothing has changed.
A. Alan Borovoy: Still no clarity over what constitutes hate speech in Canada, National Post (Dec. 15, 2014), http://fullcomment.nationalpost.com/2014/12/15/a-alan-borovoy-still-no-clarity-over-what-constituteshate-speech-in-canada/.
335

Borovoy lists examples such as the arrest of two young men in Toronto for
yelling Yankee Go Home at a Shriners parade; the prosecution and conviction of two French Canadian nationalists who had distributed anti-French
material in order to create pro-French sympathy; the investigation of Toronto libraries for carrying Leon Uris The Haj, because of its depiction of Arabs; the attempt by Canadian border officials to prevent admission into Canada
of a film sympathetic to Nelson Mandela; and the investigation of the anticommunist film Red Dawn! When Freedoms Collide, supra note 190, at 4243.

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it abusive or informative to say that gay males often have a


liking for young boys? Or that Gay men who practice unprotected sex are ticking time bombs[?] Or that Sodomites
are 430 times more likely to acquire AIDS & 3 times more
likely to sexually abuse children!336 Is it abusive or informative to say that Mohammed was a pedophile? Or that in
Europe the number of Muslims is expanding like mosquitoes?337 Or that Many Muslims are terrorists? Is it necessarily abusive, as Waldron believes, to put a sign on a Mosque
saying Jihad Central? What if the Mosque is, in fact, home
to Jihadists?338 Is it abusive to say that Jews exaggerate the

336

As was stated in a flyer by a man charged with violating Saskatchewans Human Rights Code. Whatcott, supra note 333.
337

As did writer Mark Steyn for merely quoting the good Norwegian Mullah,
Omar Kreker, and getting taken to a human rights tribunal for doing so. Andrew Bolt, Dont quote the mullah. Or else, Herald Sun (Jan. 29, 2008),
http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/dont_quote_the_mullah_or_else/desc/P0/. See Mark Steyn, Lights
Out: Islam, Free Speech And The Twilight Of The West (Stockade
Books 2009) [hereinafter Lights Out]. For more on the Steyn case, see
Chapter IX.
338

For example, the Dar al-Hijrah Mosque in Church Falls, Virginia (The Investigative Project on Terrorism, at http://www.investigativeproject.org/case/417) recently accorded commendation by the Virginia Legislature
for promoting cooperation, tolerance, and mutual understanding among different faiths. Robert Spencer, Virginia State Legislature commends mosque with
jihad terror links, Jihad Watch (Mar. 17, 2014), http://www.jihadwatch.org/2014/03/virginia-state-legislature-commends-mosque-with-jihadterror-links.

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Holocaust? That would depend on what we mean by exaggerate. Moreover, many Blacks, Ukrainians, Armenians, and
even Aboriginals have said so, not just anti-Semites, in their
attempt to get their own alleged Holocausts recognized as
just as real and important as that of European Jews.339
Again, abusive is a term that is so encompassing you
could drive a truckload of Kiwis through it. And what about
distinguishing an abusive manner from one that is not?
How is one to determine this? According to the standard of
civility of a Mary Whitehouse? Or that of a Dan Savage? Or
even that of a fiery Jew-hating Imam? As Justice Potter Stewart said about the attempt to determine hardcore pornography: I shall not today attempt to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly
339

See Graeme Hamilton, Canadas human rights museum was meant as a unifying
force, but, so far, has only inspired criticism, National Post (Sept. 27, 2013),
http://news.nationalpost.com/2013/09/27/canadas-human-rights-museumwas-meant-as-a-unifying-force-but-so-far-has-only-inspired-criticism/. Waldron seems to favor including Holocaust denial in being covered by his statute. Waldron at 29. This, of course, would be to criminalize an opinion, and it
is interesting to note how far a statute penalizing Holocaust denial might reach.
Beginning in 1990, denying (or minimizing the seriousness of) the Holocaust
became a crime in France, GermanyAustria, Belgium, the Czech Republic,
Lithuania, Poland, Slovakia, and Switzerland. In June of 1995, Bernard Lewis,
a leading scholar of Islam, was convicted by a French court of denying that the
killing of a million-and-a-half Armenians by Turkey in 1915 constituted genocide, saying instead that they were the brutal product of war. Reflections,
supra note 322, at 91-92. Moreover, the link between denying the Holocaust
and libeling Jews is anything but direct.

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doing so. But I know it when I see it, and the motion picture
involved in this case is not that.340 The same degree of subjectivity might be attributed to abusive.
Some alleged insults may also double as compliments at least to some people. Is it an insult or a compliment
to say That nigger sure can dribble!? Depending on who
says it, a group of black ballers on a playground would most
certainly consider it a compliment.341 A white policeman unaware of black basketball lingo might well think it an insult
that requires an investigation. Is it an insult or a fact to say
that Blacks IQs are consistently 15 or so points below
Whites?342 Is it an insult, a compliment, or a fact to say
340

Jacobellis v. Ohio 378 U. S. 184 (1964).

341

Some commentators believe that it is legitimate for Blacks to refer to each


other as niggers or niggas but not for Whites to do the same. But what if a
white person is using either of these terms in a complimentary way? Nope, say
the commentators. Only Blacks can use these terms. Such commentators seem
singularly stupid, if not both proprietary and racialist. Racial tags have recently
come to the surface with the NFLs decision to assess a fifteen-yard penalty for
any player during the course of a game using the word nigger or nigga.
However, why stop there? If the end is civilizing the speech of the players, why
not include fag and its derivatives? Why not also chink, Wop, Mic,
Spic, greaser, or kike? There seems no natural stopping point for attempts at linguistic legislation on the retail level.
342

Race and intelligence, Wikipedia, http://en.wikipedia.org/wiki/Race_and_intelligence. As Samuel Walker notes, comedians like Lenny Bruce, George Carlin, Richard Pryor, and Eddie Murphy all used nasty and vulgar language in
their performances. Carlin used to open his performances by asking Any spics
here tonight? Any Kikes? Any niggers? Walker, supra note 26, at 109. It is an

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Gays like young boys like you? And what about: Islam is a
religion of war? Or The only really sympathetic and original
thing in America is the niggers, who are charming.343 The
point is that, just as with threats and abuse, what constitutes an insult to some is often not so to others; threats,
abuse, and insults are all context, as well as person, dependent, and, thus, irredeemably subjective.
Finally, what is the precise dierence between the
terms insulting and abusive? In January of 2013, the British Home Secretary announced that the government would
remove the word insulting from the oence described in
Section 5 of the 1986 Act. The reason for the action, she said,
was that the Director of Public Prosecutions could not
identify any [cases] where the behaviour leading to a conviction could not be described as abusive as well as insulting.
Thus, the word insulting could safely be removed without
integral part of Chris Rocks comedy act to distinguish between black people
and niggers. eyecoin, Black People vs N***as, YouTube (Apr. 2, 2010),
https://www.youtube.com/watch?v=51vFbsZkhXU. Even the President, apparently, is on board. At the 2016 White House Correspondents Dinner, and after
saying how happy he was that a black man was finally elected President, black
comedian Larry Willmore topped off his routine with the following compliment: Yo Barry, you did it my nigga. Matt Wilstein, Larry Wilmore Responds
to N-Word Uproar: Obama Knew What I Was Talking About in WHCD Speech,
The Daily Beast (May 3, 2016), http://www.thedailybeast.com/articles/2016/05/03/larry-wilmore-responds-to-n-word-uproar-obama-knewwhat-i-was-talking-about-in-whcd-speech.html.
343

1917 letter from John Maynard Keynes to his lover, Duncan Grant. LongRun Silence, SteynOnline (June 5, 2013),
http://www.steynonline.com/5603/long-run-silence.

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the risk of undermining the CPS to bring prosecutions.344


After all those prosecutions over the years, we are finally informed that, for purposes of prosecution anyway, an insult is
inherently abusive.
Be this as it may, Waldrons list of words that he
thinks are threatening, abusive, or insulting along with
the fact that the latter terms are so inherently abstract and
subjective, means that his arguments fail to address the problem he isolates. First, potential oenders can easily avoid
sanctions merely by deploying circumlocutions to clean up
their language, thereby making their hateful speech both
much less apparently hateful and much more inte!ectua!y and
politica!y eective. And secondly, the open-endedness of the
language used in such statutes denies speakers fair notice of
what the law permits and forbids, and permits state ocials
too much discretion in applying and enforcing the law. Hate
speech laws are, thus, notoriously vague and overbroad and
contain within their enforcement reach much speech that,
even on Waldrons own reading, should never be prohibited.
344

Phillip Johnston, Feel Free to Say It: Threats to Freedom of


Speech in Britain Today (Civitas: Institute for the Study of Civil Society
2013). Some of these arrests or prosecutions even Waldron might protest: e.g.,
that of a preacher parading with signs linking lesbianism and homosexuality
with immorality; a teen who demonstrated against Scientology by holding a
sign calling it a cult; hotel owners who engaged in a religious discussion with a
Muslim guest; and, even, get this, a student who was arrested for asking a policeman if his horse was gay. See Insulting words or behaviour: Section
5 of the Public Order Act 1986, Report, 2013, Home Affairs Section
(U.K.), available at http://www.parliament.uk/business/publications/research/briefing-papers/SN05760/insulting-words-or-behaviour-section-5-ofthe-public-order-act-1986.

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To put in bold relief everything that has been said


here about the lack of clarity, imprecision, subjectivity and
sheer arbitrariness involved in isolating the statements that
could bring one within Waldrons group libel statute, it is instructive to consider the following colloquy between the
judge, prosecutors, defense counsel, and defendant in the
sentencing proceedings involving the case of a man convicted
under Canadas hate speech statute (section 319[2] of the
Criminal Code) in 1999.345 The man, Mark Harding, a Christian Evangelist, was summarily convicted for wilfully promoting hatred against Muslims by circulating flyers containing
statements deemed by the court to be hateful. Having just
informed Harding of his prison sentence, his community service, and his additional two years of probation, Judge Sidney
Linden of the Ontario Courts Provincial Division addressed
himself to the terms of Hardings probation saying the conditions would be the usual conditions in the probation order,
in addition to other restrictive conditions that you not publish and distribute the kind of materials that are the subject of this
matter. Realizing that what the Court just said begged the
very question at issueviz., exactly what kind of materials is
the subject of this matter, the prosecutor, Mr. Blain, said:346
Mr. Blain: As well, the first term in the probation order, not
to publish and distribute
similar material, is, of course, a little vague. [a little vague?]
345

R v Harding, Sentencing Proceedings, Ontario Court (Provincial Division),


Linden J., Jan. 11, 1999, 78, at 92, 94-98, 100.
346

In the following colloquy, apart from the occasional sic and the statement
To the Defendant, all commentary enclosed in square brackets constitutes
interpolations of my own.

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The Court: Yes, it is [!]


Mr. Blain: What, I would humbly submit is that perhaps for
the period of probation he should not be publishing or distributing any material, because, otherwise, we get into having
trials. [i. e., since we dont know the boundaries of the
permissible, lets prevent him from saying anything at
all on any subject whatever. Slight overbreadth problem.]
The Court: Well, I dont want to inhibit his right to speak &eely
about matters that arent prescribed [sic]. [and these matters are?]
Mr. Blain: No, I wouldnt normally suggest that, except,
given the nature of the oence of which hes been
found guilty in this trial, perhaps in those unique circumstances, for a period of two years, he not publish
or distribute any material. I appreciate the in&ingement,
perhaps, on &eedom of speech, but I think its justified in the
circumstances, for that limited time.
The Court: I think its justified for the period of the three
month sentence. I think he should be prescribed [sic]
from doing anything during that period of time...Im
not as concerned about prescribing [sic] him from doing anything during the probation. Although, he would
be foolish to test the limit of what he can and cant do.
[What is the limit and how is he to know it?] If he
were to, youre right, he might find himself before the court
again, [so to be safe he shouldnt say anything?] but
during the three months, I think theres no question
that it should be more specific not to publish anything or distribute any materials during that period...But when hes on probation for two years, I
think it might be unreasonable to say he cant express legitimate views during that period of time. [Precisely what are
these legitimate views? Shouldnt they be identified
so he might confidently espouse them if he wishes?]

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Mr. Blain: Im just wondering, then, what the wording of that


term should be for the probationary period...
The Court: Clearly, anything directed at the Muslim community
could be prohibited... [Anything directed at the Muslim
community? e.g., Muslims are wrong about Jesus?
Muslim terrorists were responsible for the destruction of the World Trade Center?]
Mr. Blain: ...The bail order we have indicates see attached
conditions.
The Court: Is there a condition on the bail?
Mr. Blain: There was one. Ms. Klukach [Assistant Prosecutor] attended the bail hearing...
Ms. Klukach: I think its something to the eect of not to
communicate, publish or distribute material of the nature which horned [sic] the subject matter of the charges...
[And this material is?] not to communicate, publish
or distribute any statements or material...in the same nature of that which forms the subject matter of these charges.
[Again, this begs the question. What exactly is the
nature of this material?]
The Court: Thats basically what I said.
Mr. Jervis [Defense Counsel]: Just two other factors, Your
Honour, and one was the very one that you commented upon, and that is that after the three month
period your order will provide that Mr. Harding, for
two years, is not to publish any literature of the same nature, but youve also said there is legitimate expression, [Aha,
the distinction between legitimate expression and
literature of the same nature] and I think quite
rightly so, and my only concern is that it be understood clearly that that might involve, for instance, his
expression of belief that adherent [sic] to Islam or
whatever...should convert to Christianity or some
view, religious belief like that...

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Chapter VIIIHate Speech Versus Good Speech:


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The Court: So, your question is, would it be a breach of probation or would it be the subject of a new charge? Because, if he goes beyond, [Beyond what? How is the defendant to know the alleged distinction between legitimate expression and literature of this nature
when the Court itself cannot formulate any coherent
statement of it?] obviously, its a new charge...[To the
defendant] Do you understand? Its been a bit convoluted in
the conversation, [Really?] but you understand the terms?
The Defendant: I get the gist of it. [The gist of what?]
The Court: You get the gist of it.
The Defendant: My lawyer wi! explain every detail. [As far as
the distinction between protected and unprotected
expression goes, dont count on it! Youd be better o
saying nothing whatever.]
The above colloquy between the judge, the prosecution, the defense, and the defendant perfectly illustrates the
main argument of this chapter. The judge admits the conversation about the restrictions on expression was a bit convoluted and asks the defendant whether he understands it.
The defendant says he gets the gist of it and is confident
that his lawyer will be able to explain every detail. And
while it surely is true that his lawyer will be able to explain
most of the details of his probationary conditions, it is decidedly not likely that he will be able to explain precisely what
Harding is and is not free to say during his probationary period. Both the Court and the prosecution acknowledge that
the Courts directive not to publish and distribute the kind
of materials that are the subject of this matter is a little
vague.347 Perhaps understanding that any attempt to clarify
347

Compare Waldrons claim that we can legitimately substitute for the most
egregious forms of group libel views, values, and attitudes which are similar
to them. Waldron at 172.

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Chapter VIIIHate Speech Versus Good Speech:


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the boundaries of such materials is doomed to failure, the


prosecution, then, suggests that Harding be prevented from
publishing or distributing anything at all during his period of
probation. Thinking this too extreme the Court responds by
saying that that restriction should only be for the three
month conditional prison term. The Court then says that
Harding would be foolish to test the limit of what he can
and cant do even during his probationary period, though he
should be perfectly free to express legitimate views during
this period. However, having given no guidance whatever as
to the boundary between these supposed legitimate views
and the kind of materials that are the subject of this matter, Harding would be foolish in the extreme to test the waters in any way whatever, especially since the Court said that
if he did he might find himself before the court again, and
also that anything directed at the Muslim community could
be prohibited.
My purpose in reproducing this colloquy is not to
portray the Court and its ocers in a negative light. It is only
to show that neither the judge, nor the prosecution, nor the
defense are any better placed than the defendant to ascertain
the boundaries between protected and unprotected expression under Canadas hate speech law. However, if the Court
and its ocers cannot oer clear guidance but are forced to
use vague and question-begging terminology such as the
kind of materials that are the subject of this matter to describe unprotected expression and terms like legitimate expression to describe protected expression, how on Earth can
ordinary citizens be expected to be in a position to do anything but guess at the laws meaning? Of course, this is what
has been argued here all along. Hate speech laws are so vague
and potentially overreaching that they are inconsistent with
the free expression principle and the very free and democratic society the Court would uphold. Even a court that is
obviously evenhanded in its attempt to administer justice,
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Chapter VIIIHate Speech Versus Good Speech:


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cannot tell the defendantand presumably anyone else


what the dierence is between legitimate and illegitimate expression, what is prosecutable and what is protected expression.348
Waldron, as well, seems either unaware or unconcerned about the problems of vagueness and overbreadth in
group libel statutes and their attendant application problems
of fair notice and administrative overreach. Instead, he seems
to believe that the only things one might worry about are
whether state ocials are either corrupt or misguided, and
these, he says, are not real worries at all.
In the first place, he rejects the idea that mistrust of
government is a good argument for rejecting government
censorship. Those who believe that governmental interference is always likely to be motivated by ocials lust for
power, or their vanity, or their misguided insecurity, or their
undue responsiveness to majoritarian prejudice, anger, or
panic are mistaken, he says. Nor does he think it clear
[w]hy this is felt particularly in the area of speech (as opposed to government actions generally), and in the even more
particularized area of content-based restriction on speech.
348

The same inability to distinguish other than abstractly between protected


and unprotected expression is evident in what a Toronto trial court judge said
about the matter in the first trial of Ernst Zundel for spreading false news:
There is nothing in Section 177 [the false news section of the Criminal Code]
that prohibits freedom of speech. It does not prohibit back-fence gossip or
legitimate debate among Canadian citizens who strive to better the quality of life
in an imperfect world. For comments on the trial, see my Free Speech and the
Zundel Trial, supra note 141, at 844 (emphasis added). See generally R v Zundel,
[1992] 2 SCR 731.

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(201-02) Noting that there were some notorious speech prosecutions under the Alien and Sedition Acts, the World War
I Espionage and Sedition acts, and later, the Smith Act, Waldron says there is something to it [bad motivations]but
not much. In any event, he asks: why would anyone think
this was true of hate speech legislation, or laws prohibiting
group defamation? Why is this an area where we should be
particularly mistrustful of our lawmakers? Hate speech legislation, he says, is dierent from these previous censorial efforts because it is used to protect minorities, not to protect
the wounded vanity of high ocials or to suppress unpopular views. (201-02)349
349

According to Waldron, that is how such legislation is supposed to be used;


however, other than sheer hope and desire, he offers no good reasons to believe
they would not be used to protect the butts of high officials or to suppress
unpopular views. The history of such suppressive efforts suggests that something like the latter is closer to the truth.
We also learn here (Waldron at 201-02) that Waldron believes that the prosecution in Dennis v. U. S. of the top 11 Communist Party officials in the U. S.
has more to do with the unpopularity of a view held by a minority (members
of the Communist Party, for example) than with any real world danger that
that view poses to the state. For evidence, he cites the Dennis case which, of
course, held exactly the opposite!: Overthrow of the Government by force
and violence is certainly a substantial enough interest for the Government to
limit speech. Dennis v. U.S. 341 U. S. 494, 509 (1951). Whatever one might
think of the Courts Dennis decision, there have been not a few studies in recent
years that certainly would contest Waldrons Pollyannaish view about communisms real world danger. See, e.g., John Earl Haynes & Harvey Klehr,
In Denial: Historians, Communism & Espionage (Encounter Books 2005)
and John Earl Haynes & Harvey Klehr, Venona: Decoding Soviet Es-

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There are three points to be made in reply to Waldrons claims. First, no one I know has ever said that governmental interference is always likely to be motivated by
the flaws he lists above. The point, as free speech theorists
suspicious of governmental censorship historically have argued, is that permitting government ocials power to determine the content and viewpoint of political expression creates opportunities for less than pure motives to exert themselves.350 The point is not that governmental ocials are always likely to abuse their powers, but they have many times
pionage in America (Yale University Press 2000). See also Herbert Romerstein & Eric Breindel, The Venona Secrets (Regnery History 2000).
Moreover, Waldron does not consider the possibility that it was precisely because of the repressive legal and political measures taken by various U. S. administrations and court decisions that communism never got to be the danger
communists and fellow travelers surely wanted it to be.
350

Again, as I write, the IRS, Benghazi, Associated Press, Health and Human
Services, EPA, and Fast and Furious scandals from 2010 to 2013 should be
enough to validate the point, particularly the first and third which carried serious implications for the freedom of speech and the press. See generally IRS targeting controversy, Wikipedia, http://en.wikipedia.org/wiki/2013_IRS_scandal.
See John D. McKinnon, Republicans Turn Up Heat Over Missing IRS Emails,
The Wall Street Journal (June 24, 2014), http://www.wsj.com/articles/former-irs-worker-sheds-little-light-on-agencys-lost-emails-1403626641.
See also David Morgan, Another WH Scandal in HHS Fundraising?, Fox Nation (May 21, 2013), http://nation.foxnews.com/hhs/2013/05/21/another-whscandal-hhs-fundraising; Stephen F. Hayes, The Benghazi Scandal Grows, The
Weekly Standard (May. 20, 2013), http://www.weeklystandard.com/articles/benghazi-scandal-grows_722032.html; Reince Priebus, Where's Obama as
IRS, EPA compete for most bizarre scandal in Washington?, Fox News (June 7,

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in the past, and the possibility that they will also do so in the
present and future is too risky to countenance; particularly
given the importance of free expression of political viewpoints to democratic discourse, and particularly, as well,
given the threat posed to such discourse by state ocials
armed with power to intervene in areas that are as highly
controversial as they are partisan.
Second, Waldron says he is not sure why we should
worry about the misuse of government power in the area of
speech any more than in any other area of governmental action. The answer is that we should worry about it in all cases;
however, the power to censor speech is particularly odious in
a democracy because speech is the fundamental freedom on
which all other freedoms rest. If we are not free to comment
publicly and openly on the issues that are most important to
us, the legitimacy of the government, which rests on the consent of the governed, is erodedcertainly to the person being silenced, whether entirely or, as Waldron admits, certainly by degrees (191).351 As A. Alan Borovoy put it, speech
is the grievance procedure of democracy;352 it is what per-

2013), http://www.foxnews.com/opinion/2013/06/07/where-obama-as-irs-epacompete-for-most-bizarre-scandal-in-washington/; Paul M. Barrett, 'Fast and


Furious' Scandal Returns to Haunt Obama, Bloomberg (May 21, 2013),
http://www.businessweek.com/articles/2013-05-21/fast-and-furious-scandalreturns-to-haunt-obama; Curt Devine, Bad VA care may have killed more than
1,000 veterans, senator's report says, CNN (June 24, 2014),
http://www.cnn.com/2014/06/24/us/senator-va-report/.
351

See supra note 317. See also Dworkins Reply to Jeremy Waldron in Hate
Speech, supra note 65, at 341.
352

When Freedoms Collide, supra note 190, at 45.

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mits people to register their dissent from government policies, and, thereby, to distinguish a democracy from some or
other totalitarian enterprise. The liberty to say publicly what
you think is democracys answer to regimes in which no effective outlet other than violence exists to produce change.
Hence, government ocials who have axes to grind and misuse their power to eectuate a corrupt speech situation are
much more dangerous than they would be if their corruption
was limited to non-speech areas like, say, housing policy or
welfare reform where the damage they might do is restricted
by the particularity of the issue. Moreover, the danger of
placing content or viewpoint censorship laws in the hands of
corrupt or misguided ocials is not just that these laws enable such ocials to use their power to penalize dissenters
and, thereby, disable democratic legitimacy, but they permit
them to protect other non-speech interests they and their
comrades may share as well.
Third, whether hate speech laws are less likely to be
abused than sedition and illegal advocacy statutes because
the former protect allegedly vulnerable minorities is not
clear. I have already expressed my thoughts on criminal anarchy and illegal advocacy statutes and have argued that their
logical structures and rhetorical postures are identical in ways
to those of hate speech statutes.353 However, Waldrons
group libel statute diers from generic hate speech laws in
that the latter worry mostly about violence and social dislocation while the former addresses, he says, social status and assurance anxieties. Hence, he believes we should not worry
about a majority oppressing the expression of an unpopular

353

See Chapter II.

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minority by means of group libel laws because these laws exist to protect, not to oppress, minorities.354 In every advanced democracy where they are given the opportunity, he
writes, majorities legislate to put this sort of protection in
place because they care about the plight of minority communities.355 And, by and large, this legislation is administered responsibly. (202-03)356 Whether hate speech laws are truly ad-

354

[H]ate speech laws representa legislative majority bending over backwards


to ensure that vulnerable minorities are protected against hatred and discrimination that might otherwise be endemic in society. Waldron at 202 (emphasis added). Nevertheless, as Hobbes noted he that hath strength enough to
protect all, wants not sufficiency to oppress all. Thomas Hobbes, Philosophic Rudiments Concerning Civil Government, English Works 81n
(Sir William Molesworth ed.,) Given that we are relying on legislative majorities, all that is needed to turn the protection into oppression is a mere change in
the governing majority.
355

Waldron seems to believe that only if one is willing to censor hate speech
does one really care about the plight of minority communities. Waldron at
202-03. Such self-righteous nonsense is not uncommon in suppressionist academic circles today.
356

Waldron at 202-03. James Kalb discusses one of these responsibly administered cases: the High Court in Britain [in 2004] upheld the conviction and
firing of an elderly preacher who held up a sign in a town square calling for an
end to homosexuality, lesbianism, and immorality and was thrown to the
ground and pelted with dirt and water by an angry crowd. The Tyranny of
Liberalism (Intercollegiate Studies Institute 2008) as quoted in David Gordon, The Harm in Hate-Speech Laws, The Mises Review (May 30, 2012) (book
review) at http://mises.org/daily/6070/.) See Melanie Phillips, The World
Turned Upside Down: The Global Battle over God, Truth, and

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Power 289 (Encounter Books 2010). Moreover, French authorities even went
so far as to attempt to get the European Parliament to lift the immunity accorded their members so Marine Le Pen could be prosecuted for simply (if stupidly) comparing the increased presence of Muslims in France to the Nazi occupation of World War Two. Daniel Hannan, MEPs vote to have Marine Le Pen
prosecuted for hate speech, The Telegraph (July 2, 2013), http://blogs.telegraph.co.uk/news/danielhannan/100224380/meps-vote-to-have-marine-lepen-prosecuted/.
There is as well the threat of prosecution to chill expression. Three separate
times Brigitte Bardot was taken to court (counting appeals actually six times)
for making statements critical of the slaughtering of animals during the festival
of EID along with other statements construed to be defamatory of Muslims.
Commenting on the political import of Bardots travails, Erik Bleich says: It is
now illegal to argue that the large Muslim immigrant presence is bad for France
if you do it in a way deemed to provoke discrimination, hatred or violence. You
can believe it, but you cannot say it, at least not too sharply or you might be
prosecuted for it. The Freedom to be Racist?, supra note 281, at 29-34.
Again in France, author Michel Houellebecq was charged with religious abuse
and defamation for saying in an interview: the stupidest religion is Islam.
When you read the Koran youre appalledappalled. Then there is the case of
French writer, historian, and theologian Paul Giniewski, who went before
five tribunals before he was finally exonerated for saying the fulfillment of the
Old Covenant in the New, the superiority of the latterled to anti-Semitism
and prepared the ground in which the idea and implementation of Auschwitz
took seed. Pascal Mbongo, Hate Speech, Extreme Speech, and Collective Defamation in French Law, in Extreme Speech and Democracy, supra note 87, at
231.

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ministered responsibly is certainly a matter of some dispute. I have already shown that Canadas hate speech law
certainly does not qualify, and I shall later show where, as in
Canada, there are human rights commissions and tribunals,
the standard of justice is set even lower. Because it is, grievance groups find these administrative outlets a cheaper and
Nor, in France, does being a state official protect one against the deployment
of hate speech laws. Christian Vanneste was convicted of abuse directed towards homosexuals for saying, during newspaper interviews, that homosexuality was inferior to heterosexuality, and that homosexuality would be dangerous for humanity if it became universal. Id. at 230. The first is pure opinion
while the second is obviously true! Meanwhile, Edgar Morin and three other
writers were taken to court three times before finally being acquitted on racial
defamation charges for saying, inter alia, that Jews were a contemptuous people taking satisfaction in humiliating others, specifically Palestinians. Id. at
234. Dieudionne MBala, a French comedian and activist, was also taken to
court three times before finally being convicted for saying in an interview:
Jewish, its a sect, a scam. Id. at 235. Further along on the French Front, our
own Bobby Dylan has been charged with inciting hatred against Croatians for
saying in an interview: If you got a slave master or Klan in your blood, Blacks
can sense that. That stuff lingers to this day. Just like Jews can sense Nazi
blood, and the Serbs can sense Croatian blood. While his words are terminally
stupid, Dylan faces one year in prison and a fine of 45,000 Euros if found guilty.
Adam Bychawski, Bob Dylan charged with hate crime in France, nme (Dec. 3,
2013), http://www.nme.com/news/bob-dylan/74194. Responsibly administered, indeed, if your intent is to silence anyone who dares speak out on controversial political subjects by subjecting those who do to serious penalties! See
Mark Steyn, The Undocumented Mark Steyn 357-61 (Regnery 2014) for
more examples of responsibly administered police state actions. For responsibly administered instances on this side of the Atlantic, see Chapter IX.

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more eective means of getting their grievances satisfied,


much to the detriment of free expression rights.
Still, what is remarkable about Waldrons dismissal of
the mistrust of government argument is that it suggests the
only concern that civil libertarians have with hate speech
laws is that they might be transformed into vehicles for the
promotion of majority interest. (203)357 On the contrary,
those who have a general distrust of government interference are not only worried about majorities oppressing minoritiesvulnerable or not.
Indeed, one of the most important concerns free expression advocates have with hate speech laws is that even
357

[H]ate speech laws do not involve putting the interests of the majority
above those of vulnerable groups. However, what if a majority thinks it is a
vulnerable group? A majority might suppress expression simply to protect
the majoritys own feelings. For example, as I write, the Israeli coalition government has given first reading to a bill that would ban the use of the word
Nazi for any purpose other than learning, documentation, scientific study or
historical accounts. It also punishes with a fine of up to $29,000 and six
months in jail for using words that sound like Nazi and that indirectly refer
to someone as an insult. The rationale offered for the law is that the use of
such concepts in public and political discourse shows blatant disregard for the
feelings of Holocaust survivors and their descendants. Luke Garratt, Israel
moves to ban the word Nazi and other references to the Third Reich other than for
education purposes, The Daily Mail (Jan. 16, 2014), http://www.dailymail.co.uk/news/article-2540581/Israel-moves-ban-word-Nazi-referencesThird-Reich-education-purposes.html. Indeed, the idea that majorities will refrain from using any means to cement their rule is one of those pleasant falsehoods that periodically captures the academic imagination.

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well-intended state ocials will be so solicitous358 of the alleged concerns of vulnerable minorities that their suppressive eorts will end up expanding the reach of these laws,
thus, casting such a pall over social and political expression as
to render discussion and debate on controversial issues involving vulnerables almost entirely o limits. For, again, depending how broadly or narrowly one reads highly subjective
terms like threatening, abusive, or insulting found in
Waldrons own favorite, the British anti-hate speech statute,
an enormous amount of expression that should not be targeted may well be captured. Second, contrary to Waldron,
far from being motivated by undue responsiveness to majoritarian prejudice, anger, or panic, the worry is that governmental ocials will be so responsive to vocal minority
prejudice, anger, and panic that they will ignore the free
speech rights of others as well as the general interests of the
society as a whole.359 Ignoring all of the sordid aspects of the
358

Or, perhaps, so intimidated by a social media lynch mob that they would
charge a man with inciting racial hatred for tweeting I confronted a Muslim
woman in Croydon. I asked her to explain Brussels. She said Nothing to do
with me. A mealy-mouthed reply. Brendan ONeill, How about we defend European values by not arresting people who say stupid things? The Spectator (Mar.
24, 2016), http://blogs.spectator.co.uk/2016/03/how-about-we-defend-european-values-by-not-arresting-people-who-say-stupid-things/.
359

The fear of ruffling Muslim sensibilities (and, likely, damaging their own career interests) led Army officers, who knew that Major Nidal Hasan harbored
extremely hostile pro-Islamist and anti-American views, to stifle themselves
and, thus, enabled him to kill thirteen American Army soldiers and wound
thirty more at Fort Hood in November of 2009. Michelle Malkin, Major Hasans Death Spree, National Review (Aug. 6, 2013), http://www.nationalreview.com/article/355229/major-hasans-death-spree-michelle-malkin. Indeed,

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politics of minority grievance groups, Waldron evinces little


or no concern for the way such groups work the minds of legislators and administrators to cover and protect their many
non-speech interests, as well as how such lobbying can result
in expanding the reach of the expressive material to be censored.360

as noted earlier at supra, note 6, commenting on the murders, Army Chief of


Staff, General George Casey said that our diversity was a strength of more
importance than the lives of the victims. Fort hood: diversity rules, New York
Post (Oct. 29, 2012), http://nypost.com/2012/10/29/fort-hood-diversityrules/. For an indication of how someone so highlyplaced could forsake the actual duties of his military office to promote one of todays current leftist intellectual fads, see Peter Wood, Diversity: The Invention of a Concept
(Encounter Books 2003). More recently, the neighbor of the two San Bernardino terrorists who killed 14 people and wounded scores of others refrained
from reporting their suspicious movements prior to the shootings simply for
fear of being thought a racist. Katie Pavlich, Neighbor Didnt Report Suspicious
Activity of San Bernardino Killers For Fear Of Being Called Racist, Townhall
(Dec. 03, 2005), http://townhall.com/tipsheet/katiepavlich/2015/12/03/neighbor-didnt-report-suspicious-activity-of-san-bernardino-killers-for-fear-of-being-called-racist-n2088543.
360

The mainstream media plays a role here also. No better example can be offered of this corrupt spectacle than the so-called Trayvon Martin affair in
which a 17 year-old black male was shot and killed by a Hispanic male, George
Zimmerman, after Martin punched him and broke his nose, and then beat his
head on a cement sidewalk. Licensed to carry a firearm, Zimmerman said he resorted to using it to prevent Martin from killing him. Despite media reporting
biased against him, a unanimous jury agreed, exonerating Zimmerman after a
thoroughly despicable prosecution.

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Identity grievance groups, just like other lobby


groups, have an interest in capturing state power to promote
their own welfare. Having been singled out for protection,
such groups have an interest in preventing criticism of policies they favor, and state ocials, by oering such protection, are hard-pressed not to accommodate them. Speech on
immigration policy, terrorism, the Middle East, welfare, and
a host of other matters, as I have earlier argued, all touch on
the interests of alleged vulnerables, and the lobbying arms
of these groups often are employed to make sure that any opposition to their interests or their self-images is cut down at
the source by censoring what their opponents might say
about them. While Waldron might not agree, his vulnerable
minorities are not so vulnerable that they cant call on a
plethora of academics, along with an assortment of other
professional grievance lobbyists, lawyers, state ocials, and
a compliant media to deploy the power of the state on behalf
of their perceived group interests.
Moreover, despite the fact that Blacks are overwhelmingly the main culprits in
the murder of other Blacks in most urban areas in the United States, and often
murder Whites as well without much, if any, media fanfare, the Martin killing
brought out of the sewers every race hustler from the Reverends Jackson and
Sharpton to Spike Lee. Even President Obama interjected himself into the affair. See Cathy Young, Zimmerman Backlash Continues Thanks to Media Misinformation, reason (July 27, 2013), http://reason.com/archives/2013/07/27/zimmerman-backlash-continues-thanks-to-m; Heather MacDonald, Obama Strikes
Out, City Journal (July 22, 2013), http://www.city-journal.org/2013/eon0722hm.html. See also Federal Bureau of Investigation,
Murder: Race and Sex of Victim by Race and Sex of Offender (2011) at
http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.2011/tables/expanded-homicide-data-table-6.

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Finally, as noted in Chapter II,361 as a double-standard


suppressionist, Waldrons group libel statute not only directs
energies away from the actual causes of vulnerability in order to pursue preferred linguistic phantoms; it restricts its
animus only to the speech of majority group members as he
apparently believes these are not vulnerable and, therefore,
do not need protection.
The assumption behind double-standard censorship is
that majority groups are in power and, therefore, do not need
protection from racist, sexist, sexual, or religious epithets.
Only vulnerables need the states protection. So, as Nicholas Wolfson says, Harry is a honky passes, Bill is a nigger is
banned.362 However, he argues that to limit ones censorial
concerns solely to hard-core epithets, as those such as Waldron suggests, is to permit a vast quantity of more subtle,
more eective racist and sexist speech. Therefore, courts will
be tempted to extend the prohibited categories well-beyond
the simple three and four lettered epithet. And so a host of
double-standard protections and suppressions designed to
close the gap would logically follow. Some examples: Novels
or cinema scong at homosexuality will be banned; artistic
work or non-fiction critical of the heterosexual nuclear family get the green light. Speech recommending immigration
laws that favor Europeans will be banned. Speech recommending immigration laws that favor Africans or Asians will
be permitted. Speech attacking armative actionwill be
suspect as will speech advocating the death penalty if a
court determines it creates a criminal justice structure that

361

Above at p. 71.

362

Free Speech Theory and Hateful Words, 60 U. Cin. L. Rev. 1, 29 (1991).

293

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Line Drawing and Application Problems

always executes blacks more than whites. Scientific research that examines white deficiencies will be permitted.
Research that examines minority failings will be prohibited.363 Whether or not legislators and courts actually comply, such are the speech policy implications of double-standard censorship arguments.
Thus, moving away from the targeting of epithets and
hard-core insults alone, Wolfson says, involves monumental
thought control. For [u]nless we limit censorship to the
simple epithet, such as you are a Kike, and budge not a whit
from that simple category, the reach and scope of censorship
will be enormous. But no meaningful doctrine that accepts
the need to limit First Amendment protection in the interest
of chilling sexist and racist speech can be successfully limited.364 On the other hand, as I have earlier argued, censoring only the surface epithet is to leave the bulk of racist and
sexist expression which exists under the surface untouched,
and will, in any case, operate to ensure that alleged racists,
sexists, homophobes, and Islamophobes will simply clean up
and moderate their language to make it more acceptable
and, therefore as well, more persuasive.
Apart from the futility of the suppressionist enterprise, I believe Waldron has no idea how this double-standard argument grates on many people, majority as well as nonrent-seeking members of minority groups, and how destructive it is to the idea that the law should protect all persons
equally, independent of race, religion, ethnicity, sex, or sexual
orientation. It operates as a kind of preferential treatment

363

Id. at 29-30.

364

Id. at 30-31.

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Chapter VIIIHate Speech Versus Good Speech:


Line Drawing and Application Problems

policy for minorities and carries all the assumptions and resentment that such policies produce in non-speech-related
areas. The end-result, unsurprisingly, is to generate even
more cultural resentment. Of course, the remedy for this
double-standard is not to expand the protection of such statutes to everyone regardless of their statusthough if the
laws were strictly enforced, such even-handedness would certainly address the favoritism defectit is to eliminate the divisive idea of protected identity classes altogether and, thus,
to reject the very idea of group libel.

295

n
IX
Canadas Hate Speech Laws:
Responsibly Administered?
As noted earlier, Waldron believes that Western hate
speech laws by and large have been administered responsibly. (202-03) Canada is one of those advanced democracies
that have hate speech laws. In fact, depending on how expansive they are read, it has at least fifteen of them. Apart from
Sections 391(1) and (2) of the Criminal Code which permit
sentences up to two years in jail for inciting or promoting
hatred against an identifiable group,365 Canadian territories
and provinces have established 13 human rights commissions
or tribunals,366 which are empowered to protect against discrimination and to police various hate speech provisions that
365

Criminal Code, RSC 1985, c C-46, s. 318 (4). Namely, any section of the
public distinguished by colour, race, religion, national or ethnic origin, age, sex,
sexual orientation, or mental or physical disability.
366

Canadian Human Rights Commission, Government of Canada, at


http://www.chrc-ccdp.ca/eng/content/provincial-and-territorial-humanrights-agencies. The Canadian Human Rights Commission has recently been
stripped of its jurisdiction over hate speech complaints. See Michael Woods,
Hate speech no longer part of Canadas Human Rights Act, National Post (June

Chapter XThe Slippery Road From Dignity to Offense

are intended to protect various identifiable groups. Though


there are many similarities among the various Human Rights
Commissions and Tribunals, there are at least three relevant
points of dierence between them relating to freedom of expression:
1. Whether the legislation covers a broad range
of methods of communication or whether it is
limited to the display of signs and symbols.
2. Whether the legislation defines the unlawful
consequence in terms of exposure to hatred/contempt or discrimination/intention to
discriminate (or both).
3. The range of identified groups covered by the
legislation.367
The Provinces that focus on hatred and contempt in their
human rights statutes are three: Saskatchewan, Alberta, and
British Columbia, the last two of which became notorious for
their administering of cases involving Ezra Levant, Mark
Steyn, and Macleans magazine.
Levant was brought before the Alberta Human Rights
Commission in 2008 on a complaint filed by an Albertan
imam, Syed Soharwardy, who claimed that Levants publishing of the Danish Cartoons in his now defunct Western
Standard, violated Article 3 (1b) of the Alberta Human Rights
Act which forbids anyone from publishing material that is
27, 2013), http://news.nationalpost.com/news/canada/hate-speech-no-longerpart-of-canadas-human-rights-act.
367

Luke McNamara, Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada, 38 U.B.C.L. Rev. 1, 1-82
(2005).

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Chapter XThe Slippery Road From Dignity to Offense

likely to expose a person or class of persons to hatred or contempt. The claim was that Levants publishing of the cartoons depicting Mohammed in an unflattering and negative
light exposed Muslims in Alberta to hatred and contempt.
Levants defense was that the cartoons were newsworthy, and
that, in any case, the government had no right to question
him about his political beliefs.
What about the free expression of opinion? Like virtually all of the provincial codes, Albertas has a rider saying
that nothing in the Act shall be deemed to interfere with
the free expression of opinion on any subject, which might
well be true if the words free, expression, opinion, and
any subject were not preceded by the word the which effectively permits commissioners to eliminate the force of the
rider altogether: the freedom of expression is simply read
to exclude whatever expression the commissioners think is
beyond the pale.
Two years after launching his complaint, the complaining imam eventually dropped the case, however, not before forcing Levant to spend two years of his life defending
himself and paying out over $100,000 in legal costs. Soharwardy, however, never paid a cent because all of the costs of
such inquisitions incurred by government investigators and
prosecutors are, happily enough for him, borne by taxpayers.
Nor could Levant sue Soharwardy for malicious prosecution
because Albertas Human Rights codes anti-retaliation
provision prevents it!368 Levant got away primarily because he
was relatively well-o, well-known, and skilled in the use of
the media. He smartly filmed his interrogation and put it on
368

Shakedown, supra note 329, at 29.

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YouTube where, as they say, it went viral,369 exposing the


bureaucratic arrogance of the interrogator and the many irregularities and inanities of the entire process.
Mark Steyn, author, well-known columnist and media
star, also was the subject of a complaint in 2008 for an article
taken from his book, America Alone, and published in Macleans magazine as well as for other things he said in some of
his columns. Steyns experience was similar to Levants, only
he was subjected to complaints in two provincial venues (Ontario and British Columbia) along with the federal HRC as
well. (Hows that for responsibly-administered venue tourism!) One HRC (Ontario) dropped Steyns case without any
hearing on the merits because Ontarios law was read down
to cover only notices, signs, symbols, emblems, or the like,
that are intended to discriminate against a protected group.
Steyns publications were held not to qualify. Nevertheless,
the fact that the case was dropped did not deter the head of
the Commission, Barbara Hall, from taking it as her self-appointed task to deliver a verdict on the merits anyway, saying
that she thought Steyns writings promoted prejudice against
Muslims by portraying the entire group in the same negative
light as a threat to the West. This particular responsibly administered event shows how an especially judicious commissar was able to decide the merits of a complaint without the
need for a hearing!
The Canadian Human Rights Commission also dismissed the complaints against Steyn and Macleans, this time
369

Rebel Media, Ezra Levant asked: What was your intent (2008), YouTube
(July 29 2015), https://youtu.be/CUAQGqoQSrY. See also Rebel Media, Details of the hate speech complaint, YouTube (July 29, 2015),
https://youtu.be/SdaGfnE4E60 and https://youtu.be/cnFuhlWcLvg.

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Chapter XThe Slippery Road From Dignity to Offense

on the ground that the views expressed were not of an extreme nature. However, the British Columbia Human
Rights Tribunal (BCHRT) gladly took up the challenge. The
charge against Steyn was that he published flagrantly Islamophobic statements in his book and some articles which
were said to violate the human rights of British Columbian
Muslims. As one piece of evidence, the complainants alleged
that Steyn wrote that within Europethe number of Muslims is expanding like mosquitoes. Though no one should be
fined or imprisoned for saying so, the impugned words were
but a direct quote from the great Norwegian imam, Mullah
Krekar. So simply reproducing accurately the words of an Islamic authority was considered evidence of Islamophobia!
Moreover, the complaining surrogateswhom Steyn
referred to as sock puppets because they were fronting for
their principal, one Mohammed Elmasery, then Head of the
Canadian Islamic Congress (CIC)also objected that Steyn
made light of the insipid CBC television show Little
Mosque on the Prairie. Not only that, but he was also accused, inter alia, of attacking multiculturalism; of supporting
the recognized Islamophobe Oriana Fallaci; of attacking
human rights codes and other laws that are meant to protect
Muslims; of exaggerating the persecution of Christians in
predominantly Muslim countries as well as much more of exactly the same nature. The charges brought by the infamous
sock puppets were all of the same nature, and were so ludicrous as to be risible and betokened little understanding of,
or even care for, the place of free expression in a free and
democratic society.370
370

You can find their complaints at http://www.safs.ca/issuescases/Report_on_Macleans_Journalism.pdf. And you can find Steyns various responses
in Lights Out, supra note 337.

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Chapter XThe Slippery Road From Dignity to Offense

Like the CHRC, the BCHRT dismissed the complaintbut only after a five day hearingon the ground that
Steyns writing and Macleans publishing of it were not
likely to expose Muslims to hatred or contempt, though not
without claiming that Steyns article contained factual inaccuracies, that it played on common Muslim stereotypes,
and that it attempted to rally public opinion by exaggeration
and causing the reader to fear Muslims.371
Can we say that the Levant and Steyn cases were administered responsibly? Why certainly, if you believe the
phrase includes being legally hauled before tribunals where
human rights commissioners are generally human rights activists who sometimes double as investigators as well as
prosecutors or where a mere high school diploma and the
right political connections qualifies one to be an adjudicator;
or where partisan judges can also work as prosecutors, and
where human rights workers sometimes pose as racists on
extremist websites to entrap the unsuspecting into making
culpable statements; or where you are presumed guilty and
the burden is on you to prove your innocence; or where warrants are not always required for investigators to enter your
property, seize your computer and view all your papers in order to build their case; or where hearsay statements are regularly admitted at trial and discovery can be a one-way process
favoring only the complainant; or where complainants are
not required to prove harm or malicious intent; where
truth and fair comment are not acceptable defenses;
where normal courtroom rules can be suspended and surro371

News Release, Justice Centre for Constitutional Freedoms (Mar.


20, 2012), http://www.jccf.ca/images/From%20Bad%20to%20Worse%20%20News%20Release.pdf.

302

Chapter XThe Slippery Road From Dignity to Offense

gates are permitted to give evidence for the actual complainants; and where respondents may be deprived of the right to
face their accusers!372
Again, their high profile status and relatively deep
pockets were more than likely the reasons Levant and Steyn
won their cases. As a rule, Canadas kangaroo courts are more
circumspect in choosing their targets. They succeed in getting convictions because they practice their Ka,aesque justice against the poor, the downtrodden, and, yes, the real
vulnerables (the politically incorrect) among us in low-visibility settings generally well out of the media spotlight. In my
view, Levant accurately characterized the normal goings-on
of these commissions and tribunals as a turkey shoot for the
government, with poor, intimidated targets fighting against
the unlimited resources of the state.373 The one good thing
to have come out of these trials is that Section 13, the federal
hate speech section of the Canadian Human Rights Act, has
been consigned to the infamous museum of antiquities.374
372

See generally Shakedown, supra note 329, at chapter two. See Lights Out,
supra note 337. See also John Carpay & Carol Crosson, From Bad to Worse: Examining Restrictions on Speech and Procedural Fairness in Human Rights Legislation
in fourteen Canadian Jurisdictions, Justice Centre for Constitutional
Freedoms (Mar. 2012), http://www.jccf.ca/images/From%20Bad%20to%20Worse%20-%20Executive%20Summary.pdf.
For a dissenting view see Susan G. Cole, This Hero's a Hoax, NOW (May 6,
2009), https://nowtoronto.com/news/this-heros-a-hoax/.
373

Shakedown, supra note 329, at 19.

374

However, as noted earlier, the ten provincial and three territorial Human
Rights Commissions are still in place. As I write, the Canadian government is
poised to pass amendments to unveil gender protection legislation which

303

Chapter XThe Slippery Road From Dignity to Offense

No doubt Waldron would respond to these irresponsible administration charges that his group libel statute is to
be part of criminal rather than human rights law and, therefore, suers from few of the irregularities that plague the latter. For example, Britains and Canadas hate speech laws
have specific intent provisions which require that one must
specifically intend to promote hatred, a much more rigorous
standard for the state to surmount than the likely to expose
standard of human rights law; though it is worth noting that
in 2002 the Canadian Supreme Court accepted the weaker
reading of willful blindness as sucient to determine intent
to a hate speech charge.375 Moreover, Canadas hate speech
law requires the approval of the various provincial attorneys
general to launch a complaint, requires a presumption of innocence, and permits defenses of truth and fair comment, all
of which the various codes do not require.
But heres the kick: because success is easier to obtain
from human rights commissions and tribunals, it makes sense
for complainants to proceed by human rights law rather than
the Criminal Code. Referring to his own travails, Mark Steyn
would amend the Human Rights Act to make it an offense to discriminate on
the basis of gender identity and expression. It would also amend the Criminal
Code (s. 319.2) to include these as protected categories, and it would amend
hate crime provisions to make them aggravating factors in sentencing. All of
these changes rest on a conception of gender identity which is determined by
what one thinks and desires ones identity to be. Imagine all the fun (and funds)
lawyers are poised to receive as a result of such deep thinking!
375

R v Harding, [2001] OJ No 325, 52 OR (3d) 714 (Dambrot J); [2001] OJ No


4953, 57 OR (3d) 333 (Weiler J); [2002] SCCA No 95, File No 29096 (Dismissed, Oct. 17, 2002). See also the discussion at notes 347-50.

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Chapter XThe Slippery Road From Dignity to Offense

has suggested that Muslim lobby groups have very shrewdly


calculated that the human rights commissions are the quickest, cheapest, and most coercive means of applying pressure
to mainstream publications in order to put Islam beyond discussion.376 The same applies to any protected group complainants who, remember, pay nothing at all for the privilege
of launching complaints and are protected, at the same time,
from any retaliatory action on the part of their targets. To
paraphrase the words of Justice Black in Beauharnais: it is
now very dangerous indeed to say something critical of a protected group.
I would be remiss if I didnt point out that Canadas
hate speech statute, also, with the exception of one important case, has been deployed only against the vulnerable,
the marginal, the impecunious, and, thus, the relatively powerless. The one exception was the prosecution of David
Ahenakew, Order of Canada holder, former Chief of the Assembly of First Nations and the Federation of Saskatchewan
Indian Nations, for delivering himself of wildly anti-Semitic
statements in a public speech and interview. Ahenakew was
tried and initially convicted, but then, after a new trial, was
ultimately acquitted by a Provincial Court judge who held
that the prosecution could not meet the specific intent requirement.377

376

Lights Out, supra note 337, at 302.

377

Judge finds Ahenakew not guilty in 2nd hate trial, CBC News Saskatchewan
(Feb. 23, 2009), http://www.cbc.ca/news/canada/saskatchewan/judge-findsahenakew-not-guilty-in-2nd-hate-trial-1.802574.

305

n
X
The Slippery Road From
Dignity to Offense
As Waldron says throughout his book, the burden of
his argument for a group libel statute is to ensure that members of vulnerable minorities are accorded dignity, considered as their basic entitlement to be regarded as members of society in good standing. This assurance, he argues,
is not just the obligation of government ocials; the obligation extends to private individuals as well. Private individuals
and state ocials are to work together to protect minorities
from group directed attacks which proclaim that all or most
members of a given group, by virtue of race or some other ascriptive characteristic, are not worthy of being treated as
members of society in good standing. Dignity, then, is a
status sustained by law in society in the form of a public
good. (105-06)
While Waldron wishes to prevent attacks on dignity,
he says that the aim of his group libel statute is not to protect minorities from simple oense. However, whether it is
plausible, other than in theory, to distinguish attacks on dignity from those giving oenseespecially in the context of
an inflamed political climateis another matter indeed.

Chapter XThe Slippery Road From Dignity to Offense

Dignity concerns status while oense concerns feelings; the one is objective, the other is subjective. So to protect people from oense or from being oended is to protect
them from a certain sort of eect on their feelings. And that
is dierent from protecting their dignity and the assurance of
their decent treatment in society. (107) There! Thats simple, isnt it? Well, not exactly, as Waldron himself is forced
to admit, since hurt feelings occasioned by oense often accompany attacks on ones dignity and, thus, complicate
things. Of course a libel is wounding, and people are greatly
distressed when they are defamed. Nevertheless, Waldron
argues, the distress itself is not the reason for the law. The
distress is a consequence of what the law of defamation is
supposed to protect people against; it is not itself what the
law of defamation is supposed to protect people against.
(110)378
Waldron understands the complexity created by the
intermingling of oense with dignity, even as he attempts to
distinguish them. He says the emotional distress created by
assaults on ones dignity is not unimportant. Indeed, he
claims, though without any evidence to support it, or with
any particular society in mind, that minority group members
are under very considerable distress and grave fear and apprehensions about what may be done to them, what is to become of them, and how they and their family members are to

378

Unlike offense, insults to dignity are not about wounded feelings, at least
not in the first instance. Waldron at 110.

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navigate life in society under the conditions the hate speakers are striving to bring about. (111-12)379 Nor are only minorities vulnerable to attack: for, apparently, simply detailing
the subjective and emotional aspect of attacks on dignity
leaves Waldron himself open to attacks by persons critical of
hate speech laws and who maintain with studied obtuseness,
that the laws are there simply to protect against hurt feelings.
Lucky for us, he says, we do not have to decide which
speech acts are or are not unlawful on the basis of a case-bycase analysis of the emotions of particular victims. Instead, he says, we identify categories and modes of expression that experience indicates are likely to have an impact on
the dignity of members of vulnerable minorities. Though
Waldron does not specifically identify these categories or
modes of expression, I think by the latter he means printed
versions of the threats, abuse, and insults I have already discussed, and by the former he is referring to sexist, racist, homophobic, and Islamophobic expression. If I am correct in
my assumptions, I have already registered my dissent from
much of what he says about these modes and categories.
Here, however, I wish to show that while it may be easy in
theory to distinguish attacks on dignity from those that
merely give oense, it is not so in practice, and so the attempt to narrow the statute to prohibit attacks on dignity
only will inevitably fail.
Waldron begins his excursus on racial epithets by first
stating that because verbal expression may echo over time
379

Whether the difficulties minority group members face can realistically be


said to have anything at all to do with hate speakers is assumed but is certainly
not unproblematic. See Chapter II.

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to create problems for society as a whole, he is not restricting


his argument to published material alone.380 He analogizes society to an enlarged workplace and says that the hostile environment arguments that are deployed by suppressionists
in the latter case apply to the former as well. Words spoken,
wordless acts (cross burnings), printed materialanything
which is capable of becoming a permanentand thus a permanently damaging and permanently disfiguringfeature of
the environment in which people have to live their lives is
targeted by Waldrons argument. (118)381 That said, how does
his argument purport to avoid sliding from prohibiting expression which attacks dignity into one which punishes expression which gives mere oense?
The test Waldron adopts to distinguish oensive
from dignitarian assaults is intended to mark the dierence
between, say, attacks on ones religion from attacks on those

380

Though how one is to distinguish verbal expression that echoes over time
from that which might so echo is not clear.
381

It is noteworthy that Waldron never suggests how literally we are to take the
term permanently here, or how we are to determine whether any expressive
instance is capable of becoming a permanently damaging and permanently disfiguringfeature of the environment. Nevertheless, since he believes that
[n]obody knows when that heritage of hate and conflict is really over; [that]
old fears die hard; [that] old nightmares are never entirely put to rest; [and
that] old antipathies can sometimes be awoken, (Waldron at 153) there
seems no possible way to test his permanency hypothesis. Again, it is puzzling
how he can hold this permanency thesis, and, at the same time, peremptorily
state the fundamental debate about race is overwon; finished, with only a
few crazies still debating. Waldron at 195.

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who profess that religion. Thus blasphemy laws which protect religious doctrine, icons, and practices are meant to protect believers from attacks which give oense whereas group
libel laws protect them from expression attacking them personally as members of a particular religion. On Waldrons argument, it is permitted to do the first but not the second.
The question is whether the distinction holds in practice.382
Waldron notes that the politics surrounding the British Religious and Racial Hatred Act of 2006 made him doubt
whether a line could be held between attacks on dignity and
giving oense in the context of Britains laws about fomenting religious hatred; but he does not think that the blurring
of this line is inevitable: In every aspect of democratic society, we distinguish between the respect accorded to a citizen
and the disagreement we might have concerning his or her
social and political convictions. And so while we may criticizeeven ridiculethe preposterous and socially dangerous beliefs and policies of the Republican Tea Party, we
are not permitted to publish a claim that their politicians
382

Austin Dacey is doubtful. Writing about the attempt to distinguish blasphemy from religious hate speech, he says: It may seem obvious that one can
abuse an icon without thereby abusing those who venerate it, and defame a
prophet without thereby defaming those who follow him. If so, then blasphemy
could be distinguished in principle from religious hate speech. Whatever the
philosophical attractions of such a view, if you descend to the scale of specific
laws and cases, the scene changes. Dacey, supra note 192, at 84. It is also not
clear how the distinction between religious beliefs and their believers compares
even in theory to racial or ethnic issues. As far as I am aware, unless one is prepared to assign them a specific racial or ethnic perspective of some sort, neither
Blacks nor, say, Hispanics can be said to have specific beliefs attached to them
as such. Nevertheless, Blacks and Hispanics are often imputed specific beliefs
and practices by those who see some gain in doing so.

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cannot be trusted with public funds, or that they are dishonest. (120-21) On this rather odd view of personhood, I am
supposed to separate my beliefs, opinions, and values from
myself.
However, the idea that you may not suggest that politicians cannot be trusted with public funds or that they are
dishonest indicates that even Waldron has diculty distinguishing legitimate from illegitimate attacks on persons. For
if we are prevented from saying either of these things about
our politicians, or anything analogous, then our group libel
statute will have been augmented by an even more egregious
anti-sedition statute. Not a good place for any supposed liberal democrat who ostensibly deplores anti-sedition laws to
find himself!
There are more diculties. Distinguishing between
expressive attacks on a group as such from attacks on individuals as members of that group is a dicult proposition to
keep foremost in mind when what we are protecting individuals against is an attack centered around a group characteristic. (123) Nevertheless, Waldron thinks the eort is
both plausible and potentially successful as long as commentators do not distort what the law says.383 Fair enough, but
383

Waldron gets edgy over a claim by Jonathan Turley objecting to a proposed


U. N. resolution to ban religious defamation. Turley says that the British Racial and Religious Hatred Act makes it a crime to abuse religion. Objecting,
Waldron says, without the slightest bit of evidence, that by placing the term
abuse in scare quotes, Turley is engaged in a deliberate misrepresentation of
religious hate speech laws. Waldron at 124-25. Taken literally, Turley is
wrongsection 29J of the Act says that one is free to abuse any particular
religion or the beliefs and practices of their adherentsbut it is a bit of a

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distorting the law is surely not the main problem we face. For
suppose someone says that the religious beliefs of a person
are irrational and even absurd, isnt that statement a comment on the person just as much as on his beliefs, given that
it suggests he is irrational and, perhaps, less than fully fit to
be a citizen?384 Does not a statement that Blacks as a rule
have lower IQs than Whites suggest that Blacks might be
inferior intellectually to Whites? If so, why arent such indirect statements attacks on the rights of their targets to equal
dignity and, therefore, as well, to equal citizenship? Given
what Waldron says about such claims as being both bigoted
and pass, why should they be permitted? (193-196)
Moreover, as noted earlier,385 French novelist Michel
Houellebecq was charged with religious abuse and defamation for saying that the stupidest religion is Islam. At trial,
the lawyer for one of the plaintis in the case, Dalil Boubaker, exclaimed: Islam has been reviled, attacked with
hateful words, adding that his community has been humiliatedthus transforming a comment about his religion into
a comment about his identity group, and in one easy interpre-

stretch to pronounce Turleys misrepresentation deliberate. He might simply


be assuming the likely outcome of the Act. Jonathan Turley, The Free World
Bars Free Speech, Washington Post (Apr. 12, 2009), http://www.washingtonpost.com/wp-dyn/content/article/2009/04/09/AR2009040903155.html.
Racial and Religious Hatred Act 2006, 2006, c. 1, (Eng.) available at
http://www.legislation.gov.uk/ukpga/2006/1/pdfs/ukpga_20060001_en.pdf.
384

Leonid Sirota, Offence and Defence, Double Aspect (Dec. 4, 2012),


http://doubleaspectblog.wordpress.com/2012/12/04/offence-and-defence/.
385

Supra note 356.

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tative act, sliding from a charge of blasphemy into one of defamation.386 Commenting on Boubakers statement, Austin
Dacey suggests that it illustrates how a ready legal recourse
against religious abuse and defamation can invite accusations
that obscure the dierence between contempt for a text and
contempt for a community, and slip from Islam has been reviled to my community has been humiliated.387
Dacey raises an important point. Exactly how extensive is Boubakers community? Who does it include? And
who determines its boundaries and its membership?
When Boubaker told the court that his community had been humiliated, which community did
he meanthe community of French Muslims,
foreign-born French Muslims, European Muslims, or perhaps the entire umma? These are not
idle questions, but central matters of intense,
sometimes life and death controversy over what it
386

Dacey, supra note 192, at 89.

387

Id. Compare, as well, the ease of sliding from blasphemy to community in


the arguments of critics of PENs conferring a free speech award on Charlie
Hebdo for courage in defending the free speech right. See infra note 416. However, not only religion cements the strong connection between belief and identity: It is true that religions often form deep-seated identities. But, then, so do
many other beliefs. Communists were often wedded to their ideas even unto
death. Many racists have an almost visceral attachment to their beliefs. Should
I indulge them simply because their views are so deeply held? And while I do
not see my humanism as an identity with a capital I, I would challenge any
Christian or Muslim to demonstrate that my beliefs are any less deeply held
than theirs. Interview with Kenan Malik, in Hate Speech, supra note 65, at 82.

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means to be a Muslim. Is a Muslim one who follows the five pillars of Islam, or one who lives by
sharia? What of those secular citizens born to
Muslim parentswere they members of Boubakers community? Or those devout citizens who
believed that the Quran is not the literal, inerrant
word of God, or that Islam did not need help
from the force of the Republics laws to be defended from the musings of a novelist provocateur?388
Dacey is on to something here. Simply saying that someone
is a Muslim, a Black, a homosexual, etc., is not to say what
ideological aspects of Islam, Blackness, or homosexuality,
etc., that person identifies with, how strong that identification is, or, for that matter, whether he or she identifies with
any of the tenets, claims, practices or interests associated by
others as representative of the group at all. There are dierent
degrees and kinds of group identification from individual to
individual, some with greater and others with lesser attachments to the group to which they ostensibly belong just as
there are many dierent conceptions of what ideas, practices,
etc., make one a true member of that group.
Group identification is in part factual but also in large
part normative, at least insofar as it is seen from the perspective of group libel statutes and the intentions and viewpoints
of their supporters. By assuming that individuals can be considered for legal purposes solely in terms of their membership in designated identity groups, and assuming as well that
they identify strongly with their assigned group identities,
group libel laws construct individual identities according to
what state ocials and their most extreme supporters think
388

Id. at 92.

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they should be. On this view, a persons identity is what it is


depending on the group to which he or she is assigned, along
with the ideology considered appropriate to it, irrespective
of whether that assignment means anything factually at all to
the actual person. Thus, someone who may in fact think that
he has many dierent (and possibly crosscutting) identities is
assigned one particular identity for political, and, perhaps, legal purposes (e.g., Muslim, Black, Jew), and that identity is
constructed and pre-loaded for him with whatever characteristics state ocials and their supporters assign to it. In this
crude way, the defamation of the group automatically becomes the defamation of every individual in the group despite the fact that some (perhaps many, even most) individuals may deny they are defamed, arent worried that they are,
and/or believe that group defamation statutes are morally
wrong, insulting, ineective, counterproductive, and violations of free expression principles. Nevertheless, despite
these nuances, the argument of suppressionists is that the
status of the group must define the status of the individual.
Thus, you are defamed even if you dont think you are. For as
Mari Matsuda put it, when the group is subordinated, even
the lucky counterexample [i.e., the leftist minority law professor] feels the downward tug.389 In sum, group libel statutes protect all members of supposedly vulnerable
groups even if the protected individuals, for one reason or
another, eschew such protection.
For strong identifiers, comments about anything that
might conceivably be linked to ones race, ones religion,
ones sex, or ones sexual identity, easily become, as with
389

Public Response to Racist Speech, supra note 43, at 2363, citing Owen Fiss,
Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 148-49 (1976):
[W]ell-being and status of individuals is related to the well-being and status of
the individuals group.

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Boubaker, a comment about ones community and its status, thus, rendering the slide from simple oense into group
defamation a veritable avalanche. This was certainly true of
Muslim rioters during the Danish cartoon crisis of 2005. Indeed, Waldron himself says that [i]f I identify my self with
my beliefs then criticisms of them will seem like an assault
on meBetter to reserve the idea of assault on me for attacks on my person or attempts to denigrate or eliminate my
social standing. (135) Commenting on this passage, Brian
Leiter said:
If I do not identify my selfwith what I believe
about the true and the good, what should I identify it with? My height? My hair color? Surely, if
someone holds up for ridicule all my central beliefs, they are attacking me and my social standing: no one says, after all, Your world view
marks you as a fool and moral reprobate, and that
means you deserve equal standing in our community.390
The road from comments on ones community, or ones beliefs, opinions, and values, to comments on oneself is not at
all dicult to navigate.
Nor is this slide rare. As noted throughout, it is not at
all uncommon today to be charged by some commentators
with attacking the dignity and social standing of members of
vulnerable groups whenever one speaks against their particular claims, beliefs, interests, or practices. Oftentimes, such
charges are simply an attempt to deflect attention away from
internal identity group struggles as well as a means of solidi-

390

Leiter, supra note 77.

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fying and controlling a groups outward image. As Kenan Malik put it, the debates about religious, etc., defamation are, at
heart, really about power:
Demanding that certain things cannot be said,
whether in the name of respecting faith or of not
oending cultures, is a means of defending the
power of those who claim legitimacy in the name
of that faith or that culture, is the means of suppressing dissent, not from the outside, but from
within. What is often called oense to a community or a faith is actually a debate within that
community or faith. In accepting that certain
things cannot be said because they are oensive
or hateful, those who wish to restrict free speech
are simply siding with one side in the debate.391
In short, to gain control over the internal politics of their
particular identity-interest groups, suppressionists often call
on state authorities, compliant media, and sympathetic allies
to enforce their preferred self-images by controlling what
may be said of them. This is the point of hate speech laws:
their main purpose is not to protect victims from real
harm; it is to permit state policing of debate and moments
of ideological conflict.392 Suppressionists, thus, intercede in
ongoing debates in particular societies, take one side in the
391

Interview with Kenan Malik, in Hate Speech, supra note 65, at 83. More
broadly, he argues that Hate speech restriction is a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral.
It is a way of making certain ideas illegitimate without bothering politically to
challenge them.
392

There Aint no Harm in Hate Speech, supra note 274.

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debate, and then call on state authorities to silence their inter and intra-group opponents. Indeed, one possible means
of deflecting complaints about the censorship involved is to
adopt Waldrons preferred strategy in regard to race: simply
declare the debate over, and the problem of legitimate disagreement vanishes altogether.393
A. The Cartoon Crises of 2005-06, 2014 & 2015
There is, perhaps, no better illustration of the application diculties presented by group libel statutes than that
occasioned by Waldrons remarks on the Danish Cartoon
crisis of 2005-2006 during which the lives of twelve Danish
cartoonists were threatened with death by Muslim fanatics
ostensibly outraged by illustrations of their prophet, shown
among other things, with a bomb in his turban. In and of
themselves, Waldron says, the cartoons can be regarded as
a critique of Islam rather than a libel on Muslims; they contribute in their twisted way, to a debate about the connection between the prophets teaching and the more violent aspects of modern jihadism.394 But then he says They would
393

While this strategy might have some utility today in terms of an issue like
slavery, it has none whatsoever in debates concerning either race, religion, ethnicity, gay marriage, climate change, or any other issue the Left has declared
settled. See supra note 314.
394

Rosenfeld, supra note 106, in Hate Speech, supra note 65, at 280, takes a
different tack. As a fellow double-standard suppressionist, Rosenfeld would ask
whether the group whose religion is under attack was a majority or a minority
in any particular society. If the blasphemy targets a majority religion, that fact
far outweighs whatever harms blasphemy may cause to the rights of those who
are offended by it. The same, however, does not necessarily follow in the case
of a minority religion. Assuming that the Danish cartoons conveyed nothing

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come close to a libel on Muslims if they were calculated to suggest that most followers of Islam support political and religious violence. (125, emphases added) He even quotes approvingly one scholars contention that [c]artoons that associate the prophet Muhammad with terrortend to reduce

negative against Muslims as a minority group, but only that Islam is a cruel and
violent religion, he asks if Catholicism were depicted as a venal, power-hungry, and cruel religion, whether a Muslim in Denmark would be similarly situated to a Frenchman or Italian in France or Italy? He answers in the negative
because anti-Islam attitudes can easily and imperceptibly slip into anti-Muslim sentiments in a way that anti-Catholicism is not at all likely to degenerate
into anti-French in France or anti-Italian in Italy. Perhaps not, but, if we are
to use parallel terms for Islam/Muslim, the relevant comparisons are not antiCatholicism/anti-French or Italian, but anti-Catholicism/anti-Catholics!
Moreover, one would think that if he was concerned about the harm caused, he
would be interested in identifying the true culprits in the fiasco: the Islamists,
not the cartoonists. However, as a double-standard suppressionist, his concern
is primarily with the group rather than the harm, and so he concludes that it
seems more difficult to exclude slippage from anti-religious speech to hate
speech in the case of minority religions than in that of majority religion.
Hence, though he takes a different tack than Waldron, he reaches the same
conclusion. See also the hypocritical double-standard rearing its head in the reaction of Yale philosophy professor, Jason Stanley, to the attack by Islamists on
the satirical paper, Charlie Hebdo for printing cartoons mocking Mohammed.
According to Stanley, its OK to mock the Pope as Catholicism is the majority
religion in France but not OK to mock Mohammed because he represents the
religion of an oppressed minority. Jason Stanley, A Postcard From Paris, The
New York Times (Jan. 8, 2015), http://opinionator.blogs.nytimes.com/2015/01/08/a-postcard-from-paris/?_r=0.

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the social status of Muslim identity as they enforce a negative stigma, according to which terror is a part and parcel of
Islam. (126)395 But if they do what the scholar says they do,
namely, attack the social status of Muslim identity by associating it with terror, Waldron should be for banning them not
for passing them o as close to a libel on Muslimswhatever that means. For what is it to say terror is part and parcel of Islam if it is not to tar all its practitioners with a terrorist brush? Certainly, the denizens of Islam who rioted
surely thought so.
Waldron doesnt even consider a calculated suggestion that most Muslims support political and religious violence an oence. Is he, thus, saying that it is permissible to
say most Muslims support terrorism? Or, that because the

395

Quoting Meital Pinto, What Are Offences to Feelings Really About? A New Regulative Principle for the Multicultural Era, 4 O.J.L.S. 30 695, 721 (2010). Of
course, the May 3, 2015 attack by two Jihadists on the free speech cartoon contest sponsored by Pamela Gellers Freedom Defense Initiative in which both
attackers were given an all-expenses paid vacation to Paradise certainly would
seem to associate Muslims with terror and, thus, attack their social status
but obviously not because of anything the cartoonists were doing. This simple
point appears to elude many commentators who seem to believe that Geller
had it coming because if she didnt sponsor the contests, the Jihadists would not
have been forced to try to kill her along with the other attendees. Apparently,
for such folks, everyone is now subject to the dictates of Islam even if they are
not practitioners. Catherine Shoichet & Michael Pearson, Garland, Texas,
shooting suspect linked himself to ISIS in tweets, CNN (May 4, 2015),
http://www.cnn.com/2015/05/04/us/garland-mohammed-drawing-contestshooting/index.html.

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oending documents were cartoons, they were naturally suggestive and, unlike an unambiguous statement, open to different interpretations?396 If either, what are we to make of his
observation that the original publication of the cartoon panel
sought to impute to Danish Muslims hostility to the liberal
institutions under which they lived; in other words, it juxtaposed the bomb cartoon with a text stating, in eect, some
Muslims reject modern secular society. (125-26, emphasis
added) Waldron obviously sees something wrong in this, but
for the life of me, if it is as Waldron says, a question of judgment whether we should be permitted to state the obvious
truth that some Muslims are both hostile to Western institutions and reject modern secular society, our libertiesas
well as our politicsare indeed in serious trouble.
It is clear that Waldron is being ambiguous here
perhaps studiously so. For on the one hand, he gives a pass
to interpretations that attack the social status of Muslims
and link them to terror, and on the other, he thinks it a question of judgment whether one can state the obvious fact that
396

Earlier, he said that if an act (burning a cross or placing a noose on someones door) merely intimates (even if it does not explicitly convey) an assault
on a vulnerables social status, that speech is part of the target of my argument if it is capable of becoming a permanently damaging and permanently
disfiguring part of the environment. Waldron at 118 (emphasis added). Expression which intimates something requires interpretation and whatever is
to be made of it would, thus, likely vary from person to person, raising obvious
vagueness, overbreadth, and fair notice concerns. Moreover, how is it even possible to foresee whether any speech or intimating act will become permanently
damaging or permanently disfiguring in the required sense? One would think
any such determination would also require a substantial amount of political
hermeneutics.

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some Muslims reject both Western institutions and modern secular society. Nevertheless, while Waldron says it was
probably appropriate that Danish authorities did not initiate legal proceedings against the paper, he wants us to know
that he does not think that either Jyllands-Postens publishing of the cartoons or the actions of the publications in the
West that also reproduced the cartoonswere admirable.
Indeed, he says, In my view, there was something foul in the
self-righteousness with which Western liberals clamored for
the publication and re-publication of the Danish cartoons in
country after country, and forum after forum.397 In fact, he
thinks the exercise of the free speech right on the part of the
papers was unnecessary and oensive. (126)398
397

Fellow mind-reader, Stephen Holmes, couldnt agree more: It is very irritating to realize that people just want to stick their finger in the eye of a particular minority group; they want to humiliate them. That is all. They invoke
freedom of speech as an excuse; they do not actually care about freedom of
speech. (It is just like saying America went into Iraq for democracy) Waldron,
Machiavelli, and Hate Speech, in Hate Speech, supra note 65, at 347. Of course
it is! Everyone knows we went into Iraq for oileven though we could have
bought it on the spot market for billions less than it cost us in blood and money.
Oh, and how much Iraqi oil have we taken as payment for our efforts? I believe
the answer is nothing, nada, zilch, zero. In fact, the beneficiary of our generosity, at least of late, is ISIS.
398

It would be helpful if Waldron would explain why the exercise of this right
was unnecessary and offensive. Is he actually saying that there is no first or second order interest in pressing the free expression interest in the exact same
terms? Why not, other than that he, apparently, thinks that the cartoonists, not
the rioters, were the cause of the rioting. Apparently, all those outraged by the
reactions of the lunatics who went on a rampage of murder and property destruction because of what they took (or pretended to take) as blasphemous,

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In my view, there is something foul in the way Waldron dismisses the rightindeed, the dutyof the press to
defend freedom of expression from attacks by mobs of Islamic lunatics hell bent on terrorizing Western liberals into
giving up the fight for free expression altogether.399 What jihadists obviously want is to silence Western liberals to protect Islam from any negative commentary, and if Waldron is
any example, they are well on their way to succeeding in the
project. Not only Waldron but many other liberals as well as
conservatives are eager to dissociate themselves from anyone
who, in their views, gratuitously blasphemes the prophet Mohammed.400 Given that people have the right to blaspheme in

should have either shut up or protested but should not have done anything that
might cause Muslims to riot again. Actually, since we have no clear idea of
which particular expressions might perchance be taken as justifications for
Muslims to riot, the situation reprises the very vagueness and overbreadth
problems inherent in Waldrons group libel statute. By the way, the very idea
that being provoked to riot is a defense for rioting is as absurd here as it would
be to a rape or murder charge.
399

There is also something foul in dragging a newspaper publisher before a Human Rights Tribunal for re-printing the cartoons, thereby forcing him to spend
two years of his time and well-over $100,000 to defend himself against such
spurious charges. Shakedown, supra note 329. See also Chapter IX.
400

Actually, claims of blasphemous expression insulting Islam is almost routine


these days when you note that seemingly anything, from the Nike Air shoe
logo to ice cream swirls to tomato slices, can (and has) been taken as representative of it. See, e.g., Daniel Pipes, Finding Allah in Unlikely Places, danielpipes.org (July 8, 2014), http://www.danielpipes.org/blog/2005/09/finding-allah-in-unlikely-places.

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the United States401no one who is not a Muslim has any obligation, moral or legal, to follow that religions strictures
such commentators say, Yes, BUT you ought not do so for
one reason or another.
The contest organized by Pamela Gellers Freedom
Defense Initiative in May of 2015 is a good case in point.
Again, as in 2005, contestants were asked to draw sketches of
Mohammed, supposedly a no-no in Muslim doctrine. As the
event was wrapping up, two fanatical Muslims attempted to
mimic the 2014 Charlie Hebdo massacres by murdering Geller along with the contests participants and spectators.
Thankfully, unlike in the Hebdo case, both assailants were
shot by a Garland, Texas police ocer before they could
carry out their murderous missions.402
One would think that, in America, media personalities would have empathized with Geller as they, more than
most, have a vested interest in upholding freedom of speech
in the face of violent attacks such as that Geller and her cohorts faced. Unfortunately, the first response of many, if not
most media personalities to the shootings was, just as in the
2005 and 2014 cases, to blame the victims. For example, in
an editorial entitled Free Speech vs. Hate Speech the New
York Times began by granting that, however oensive they
may be to believers, images ridiculing religion, qualify as
protected free speech, and that such images do not justify

401

Burston v. Wilson 343 U.S. 495 (1952).

402

Holly Yan, ISIS claims responsibility for Texas shooting but offers no proof,
CNN (May 5, 2015), http://www.cnn.com/2015/05/05/us/garland-texasprophet-mohammed-contest-shooting/index.html.

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murder. But it then claims, bizarrely, that Gellers Art Exhibit and Contest was not really about free speech. It was an
exercise in bigotry and hatred posing as a blow for freedom.403 However, on what basis the Times claims to know
this is not at all clear since it presents no evidence other than
that Geller fought against the ground zero Mosque, allegedly
runs a venomous blog, and organized the event in Garland!
On this basis, it claims her motive was hatred and her goal in
organizing the contest was simply to be provocative. Protesting violent Islamist attacks on the free speech right was
apparently not her intention; which, apparently, was to provoke Islamists to kill her and all others at the gathering.
Moreover the Times claim that Gellers Draw Mohammed
contest was not a form of speech belies just about every free
expression court decision since the 1960s.
Linda Stasi of the New York Daily News went even
further alleging that Gellers wish was to bring about more
dead Americans at the hands of radical Muslims. She even
likened Geller to the killers of al-Qaeda and Isis!404 Then, on
403

Contrary to the Times, the drawing which won the contest depicted Mohammed wielding a sword at a cartoonist, saying You cant draw me! with the
cartoonist answering back: Thats why I draw you. So, the cartoon was clearly
a free speech protest against requiring everyone to obey a particular religious
requirement. Also, I do not, for a moment, think that Gellers contest was an
exercise in bigotry and hatred, but even if it were, it would still be an exercise
in speech protected by the First Amendment.
404

Linda Stasi, With Pamela Gellers Prophet Muhammad cartoon stunt in Texas,
hate rears its ugly face again, New York Daily News (May 5, 2015),
http://www.nydailynews.com/new-york/pamela-geller-sows-seeds-hate-texasarticle-1.2211845.

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Twitter, CNN commentator Chris Cuomo oered us the


howler that Gellers contest was an exercise in hate speech
which, apparently, is excluded from protection under the
Constitution.405 Moreover, the liberal Washington Post headlined its Garland story saying Event organizer oers no apology after thwarted attack in Texas as if Geller, not the terrorists, was responsible for the attack!406
Even some conservative commentators joined the
lefties attacking Geller. Greta Van Susteren claimed Gellers
contest was an unnecessary provocation which put the lives
of police ocers at riskas if their lives are not always at
risk.407 Fellow FOX news commentators Bill OReilly408 and

405

Kemberlee Kaye, The medias struggle with free speech: CNNs Chris Cuomo
Edition, CNN (May 6, 2015), http://legalinsurrection.com/2015/05/the-medias-struggle-with-free-speech-chris-cuomo-edition/.
406

Sandy Somashekhar, Event organizer offers no apology after attack in Texas,


The Washington Post (May 4, 2015), http://www.washingtonpost.com/politics/event-organizer-offers-no-apology-after-thwarted-attack-intexas/2015/05/04/f0926fb4-f28e-11e4-84a6-6d7c67c50db0_story.html.
407

Billy Hallowell, Greta Van Susteren Chastises Muhammad Cartoon Contest Organizers for Recklessly Luring Police Into Danger, The Blaze (May 6, 2015),
http://www.theblaze.com/stories/2015/05/06/greta-van-susteren-chastisespamela-geller-for-recklessly-luring-police-into-danger-at-muhammad-cartoon-contest-knowingly-putting-others-lives-on-the-line/.
408

Ahiza Garcia, Bill OReilly and Megyn Kelly Tangle Over What Prompted The
Texas Shooting, Talking Points Memo (May 5, 2015), http://talkingpointsmemo.com/livewire/megyn-kelly-bill-oreilly-garland-shooting.

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Laura Ingraham409 agreed that the contest was unnecessarily


provocative and harmful to the cause of fighting Islamists.
Meanwhile, Donald Trump accused Geller of taunting everybody, and asked What is she doing drawing MuhammadIsnt there something else they could be doing?410
The idea that Gellers actions were unnecessarily
provocative and, therefore, the cause of the attack is an almost exact reprise of the charges of many commentators on
the 2005 cartoon and 2014 Charlie Hebdo events. The argument assumes that without some provocation there would
have been no attack. This claim is obviously correct insofar
as the Texas event is at issue, for if the contest was not held
at the Garland Curtis Culwell Center, there likely would have
been no attack at that venue. But that does not mean there
would be no such attacks, and it certainly does not mean that
Gellers standing up for free expression was gratuitously provocative.411 No cartoons provoked the 9/11 attacks. Nothing

409

Josh Feldman, OReilly Tackles Texas Shooting: Insulting the Entire Muslim
World Is Stupid, Mediaite (May 5, 2015), http://www.mediaite.com/tv/oreilly-tackles-texas-shooting-insulting-the-entire-muslimworld-is-stupid/.
410

Josh Feldman, Trump on Garland Shooting: Terrible, but Why Are You
Taunting Muslims?, Mediaite (May 4, 2015), http://www.mediaite.com/tv/trump-on-garland-shooting-terrible-but-why-are-you-tauntingmuslims/.
411

Geller, herself, said that the contest was a reaction to the many demonstrations by Muslim elements across the world that supported the shootings in
Paris. Pamela Geller, Muslims Celebrate Attack On Headquarters Of French Sa-

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other than simply being Jewish provoked the 2014 attack


on the Hyper Cacher kosher supermarket in Paris.412 And
nothing other than a Christmas party provoked the 2015
slaughter of 14 people by two Islamic fanatics in San Bernardino. Moreover, just as in San Bernardino, Islamist groups
such as ISIS are today murdering Christians throughout the
Middle East not because of anything Christians are doing,
but because of who they are. As Geller asked, what is the
point of asking whether or not we should provoke them?
Theyre already provoked. Or as Bosch Fawstin, the contest
winner put it: Mohammed cartoons dont inspire Islamic violence. Islamic violence inspires Mohammed cartoons.413
Moreover, on the logic of Gellers critics, all those
northerners who ventured into the Deep South intending to
help eliminate segregation in the 50s and 60s were also unnecessarily provocative. After all, if these outside agitators
hadnt gone there, Southern segregationists would not have
had to beat, jail, and kill them! Just as certain, Lincolns
Emancipation Proclamation freeing the slaves gratuitously
provoked Southern slaveholders to fight back even harder.
tirical Weekly Charlie Hebdo, PamelaGeller.com (Jan. 7, 2015), http://pamelageller.com/2015/01/muslim-celebrate-attack-on-headquarters-of-french-satirical-weekly-charlie-hebdo.html/.
412

Sam Sokol, Four French Jews named as victims of Paris kosher deli attack, The
Jerusalem Post (Jan. 10, 2015), http://www.jpost.com/Diaspora/Four-Jewish-victims-of-kosher-deli-siege-named-387299.
413

Andrew C. McCarthy, Why Draw Mohammed? The Artist Explains, National Review (Jan. 2, 2016), http://www.nationalreview.com/article/429175/draw-mohammed-cartoonist-speaks-out-why-i-entered-garlandcontest.

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Even today, some people believe that the Declaration of Independence unnecessarily provoked George III into sending troops to teach his unruly colonists a lesson. The fact is,
most, if not all, of our greatest moral and political achievements have come from some among us unnecessarily agitating and provoking another element of the slumbering Demos
into doing the right thing. As the winner of the AFDI contest put it, Provocation is freedom of speechits not separate from it.414
Still further, the argument that the First Amendment
doesnt protect provocative speech is absurd, and the more
knowledgeable of Gellers critics surely understand that fact.
The real question is why they object to Gellers particular
provocation. OReilly claims that it hurts the cause of defeating jihadists because it [insults] the entire Muslim world
without advancing liberty. Unlike some others, OReilly
grants Gellers right to hold the contest but thinks she did
wrong to hold it.415 Nevertheless, this claim fails as well. In
the first place, it assumes that a! Muslims are insulted by
such drawings but no empirical evidence for the claim other
414

Pamela Geller, AFDI/Jihad Watch Muhammad Cartoon Contest Winner Bosch


Fawstin Goes Into Hiding, Pamela Geller (May 5, 2015), http://pamelageller.com/2015/05/afdi-muhammad-cartoon-winner-bosch-fawstin-goes-untohiding.html/.
415

Like OReilly, David Shipler argues that Geller had a legal right to mock Islams banning of images of Mohammed but that this right is trumped by a cultural duty not to do so. Such arguments are essentially of the I support free
speech, BUT varietyin this case not for speech that offends Muslims.
Pamela Geller and the Anti-Islam Movement, The New Yorker (May 12, 2015),
http://www.newyorker.com/news/news-desk/pamela-geller-and-the-anti-islam-movement.

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than the violent reaction of a segment of Islam is ever given.


Secondly, even if we grant that most Muslims are insulted by
portrayals of Mohammed, the idea that non-Muslims should
accept an obligation to subject themselves to a tenet of Islamic doctrine is no more valid than the idea that Muslims
should subject themselves to the dictates of Judaism, Buddhism, or Christianity. If everyone were obligated to adhere
to the tenets of every other religion, there would, of course,
be no freedom of or &om any particular religion, or from religion itself. However, not every religion requires that non-believers adhere to their particular doctrinal requirements, certainly not under the threat of death. Again, Christians have
witnessed many occasions where their icons have been profaned and their practitioners insulted without recourse to
threats of death or violence. Muslims, today, are special in
the submit or die regard.
While some European states have anti-blasphemy
laws, the United States does not. Religion as such, or any particular religion, is fair game for hostile commentary, and if
not Cuomo and Stasi, commentators such as OReilly, Van
Susteren, and Ingraham know this. The main point for the
latter group seems to be that Gellers contest was counterproductive as it couldnt help but oend those moderate
Muslims whose support is needed in the fight against radical
Islam on a global scale.416 However, other than a few brave
416

Fast forward to May of 2015 when the Executive Director of a theater nixed
a one-act play called Mohammed Gets a Boner because he thought it a clear
offense to Muslims. The play was to be one of four concerned with censorship
in the arts and media. Commenting on the Directors decision to drop the play,
the author, Neil LaBute, said: Both in life and in the arts, this is not a time to
hide or be afraid; recent events have begged for artists and citizens to stand and
be counted. Jeremy Gerard, Anti-Censorship Showcase Will Go On As Neil

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individuals,417 the really important question is, why have so


many so called moderate Muslims refrained so loudly from
boldly supporting freedom of speech for non-Muslims? Fear
of the consequences of being thought hostile to Islamist
thuggery is one reason Muslims might want to hold their
tongues, just as is the possibility that some actually believe in
the wisdom and utility of such thuggery but do not want, for
one reason or another, to engage in it themselves.

LaBute Pulls Play, Deadline (May 20, 2015), http://deadline.com/2015/05/neil-labute-anti-censorship-play-censored-1201428233/. Earlier that same year, various members of PEN withdrew from its American Centers Gala because it decided to confer a Freedom of Expression Courage award
on the Paris magazine Charlie Hebdo. The writers objected to the award in
large part because they thought it mocked a vulnerable section of French society. Alan Yuhas, Two dozen writers join Charlie Hebdo PEN award protest, The
Guardian (Apr. 29, 2015), http://www.theguardian.com/books/2015/apr/29/writers-join-protest-charlie-hebdo-pen-award. As
one writer put it, To a Muslim population in France that is already embattled,
marginalized, impoverished, and victimized, in large part a devout population
that clings to its religion for support, Charlie Hebdos cartoons of the Prophet
[!] must be seen as intended to cause further humiliation and suffering. Glenn
Greenwald, Read the Letters and Comments of PEN Writers Protesting the Charlie
Hebdo Award, The Intercept (Apr. 27, 2015), https://firstlook.org/theintercept/2015/04/27/read-letters-comments-pen-writers-protesting-charliehebdo-award/.
417

In Canada, writers such as Tarek Fatah, Irshid Manji, and Farzana Hassan
come to mind, however, they are largely ignored by the mainstream media as
not really being representative of Muslims.

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But what explains the hostility and even venom of


some of Gellers media critics? Some seem to be motivated
by fear of the violent consequences of permitting those like
Geller, Rushdie, Molly Norris, Theo Van Gogh, Geert
Wider, Lars Vilks, Lars Hedegaard, the Danish cartoonists,
Ayaan Hirsi Ali, or anyone else brave enough to exercise
their free speech rights in ways inconsistent with Islamic
doctrine. However, to the extent they are so motivated, they
are also implicitly aiding the terrorists by ceding to them the
authority to determine the extent of the free speech right.
The exercise of that right, then, becomes conditional upon
the degree to which the most extreme elements in the Muslim community permit it. Thus, if only Geller and the others
would have stayed silent, no lives would have been placed in
danger. In so doing, however, they would be following the
pernicious advice of Mohammed Atta who said to the passengers on American Airlines Flight 11 that fateful day: Just
stay quiet and youll be okay. They stayed quiet, but they
definitely were not okay.
Waldrons comments on the 2005 Cartoon Crisis predate those of Gellers media critics and illustrate in more
depth exactly what is wrong with such arguments as well as
what is needed to defeat jihadism. To see this, lets return,
for a moment, to the causal issue we discussed earlier concerning automobile emissions.418 Waldrons argument there
was that just because it cant be shown that my particular
emissions havent caused the death or illness of any one individual doesnt mean that I dont have a duty to put an emissions control device on my car. My automobile emissions are
part of millions of others which, if unchecked, together create a toxic eect that over time will cause great environmental damage. Hence, Waldron says, it would be irresponsible
418

Chapter III, Sections B and C.

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to reason that way with regard to environmental regulationand it is odd and disturbing that older and cruder models of social harm remain dominant in the First Amendment
arena. (97) There Waldron deployed the argument against
MacKinnons critics who say she has shown no causal connection between viewing pornography and raping and assaulting women to argue that in fact she has, and that the
same slow-acting poison argument valid there can be extended to hate speech as well.419 Having noted my objections
to the argument as he states it, I wish here to consider how
his same argument might more accurately be deployed
against anyone who deems it necessary to accede to jihadist
demands.
The argument has a reverse side to it that leads to
conclusions diametrically opposed to Waldrons own which
require us to refrain from doing things we think will result in
harm to minorities. Take the example of religion in general
and Islam in particular. Suppose I think that if I publish
something oensive to many Muslims that there might be riots, property destroyed, and many people killed by outraged
Muslim rioters. This is surely not an imaginary outcome as
such events have almost become de rigueur in recent years.420
419

The idea being that my act of not placing an emissions control device on my
car can be said to cause the environmental disaster years down the road. Would
Waldron also say that the anti-Semitic harangue that the Reverend Al Sharpton gave outside Freddys Fashion Mart in 1995 was the cause of the arson and
deaths that occurred some days later? After all, without Sharptons speech, the
arsonist wouldnt have been forced to set the fire?
420

Some souls have even conjured up imaginary causes to explain Islamists suiting up in full riot gear. See the Obama/Clinton/Rice bizarre attempt to explain
the September 11, 2012 riots in Cairo and Benghazi as a reaction to a silly film

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On Waldrons argument, I should refrain from publishing my


remarks, no matter whether I believe that I have a right to
do so, should be permitted to do so, and that it is right to do
so, because if I publish them, I wi! cause a riot and will
likely be responsible for many deaths. Such is also the contention of Charlie Hebdos and Gellers critics.
If I follow Waldrons lead, I will say nothing that can
remotely be perceived as oensive and nothing connected to
me will create oense and cause Muslims to riot. If everyone else in the world follows the same lead, the result might
be that nothing oensive will be said, no property will be destroyed, and no one will be killedat least not due to anything I, or anyone else, wittingly said. However, the reason
for our inaction is not that we think anything we might say is
either wrong or illegal; we shut up only because of the violence we believe may be inflicted on us and/or on innocents
by outraged Muslims if we dont. My little action of shutting
up is not necessarily going to produce a chill on such expression, but if a! people who think like me do so, then one can kisso any expression that is in any way considered hostile to Islam by Islamists.421 And if we do that, we succumb to the

that few had even heard of and which had only a mythical, if politically useful,
connection to the events. Michael Barone, Did Clinton and Obama Believe Their
Benghazi Baloney?, Townhall (May 13, 2013), http://townhall.com/columnists/michaelbarone/2013/05/13/did-clinton-and-obama-believe-their-benghazi-baloney-n1592591/page/full.
421

Of course, as noted earlier, speech is not necessary to inflame jihadists;


merely being a Christian or Jew is enough to do the same. Offense being so utterly subjective, and so susceptible to being confused with attacks on ones

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hecklers veto; we trim our free speech sails whenever Muslims threaten to riot, and we eectively consign our free
speech rights to the thinnest of skins in Islam. Holding our
free expression rights hostage to violent jihadism and doing
so out of fear of what wefalselythink necessary to appease their violent appetites clearly does not make for a free,
vibrant, honest, and robust political discourse.422
Second, and on the other hand, one courageous liberal
standing up to the fanatics and stating that freedom of expression is a principle so eminently important that he refuses
to be intimidated and, therefore, proceeds to publish anew or
group identity, that anything perceived contrary to some understanding of Islams requirements by some deplorably despicable and manipulative Imams
as happened in the Jyllands-Posten casewill likely be enough to incite a riot.
422

See, e.g., Maxim Lott, German Publisher, Fearing Muslin Retaliation, Cancels
Honor-Killing Novel, Fox News (Oct. 9, 2009),
http://www.foxnews.com/story/2009/10/09/german-publisher-fearing-muslim-retaliation-cancels-honor-killing-novel/?test=latestnews. See also Draw
Muhammad Cartoonist Goes Into Hiding at FBIs Insistence After Assassination
Threat, FoxNews.com (Sept. 16, 2010),
http://www.foxnews.com/us/2010/09/16/draw-muhammad-cartoonist-goeshiding/; The Jewel of Medina, Wikipedia, http://en.wikipedia.org/wiki/The_Jewel_of_Medina. As Pamela Geller said about the importance of the ability to speak freely about groups, A group that cannot be
criticized cannot be opposed. It can work its will no matter what it is, and no
one will be able to say anything to stop it. Pamela Geller, AFDI Rolls Out New
Free Speech Billboard Campaign Featuring Muhammad Cartoon, Breitbart (June
8, 2015), http://www.breitbart.com/big-government/2015/06/08/afdi-rollsout-new-free-speech-billboard-campaign-featuring-muhammad-cartoon/.

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re-publish the very material that originally caused the rioting may likely only succeed in finding a new name for himself
and going into hiding423if he is lucky enough to avoid having his head lopped o. However, thousands of Western liberals standing collectively to oppose such fanatics would likely
bring about a dierent outcome altogether.424 It is possible,
just possible, that such a show of overwhelming support may
convince Islamists that it is futile to attempt to silence expression they consider oensive, and that the better strategy
is one that either ignores the alleged oense or answers it
with better speech, should they happen to have any. Unfortunately, ever since Khomeini put his Fatwa on Salman Rushdie, forced him into hiding, had his Japanese translator and
Norwegian editor murdered, and generally terrorized publishers around the world, Western liberals may have decried
his actions but they have usually been too fearful to stand up
for anyone Islamists accuse of insulting Islam in any way at
423

As happened to Salmon Rushdie and Molly Norris, a feminist left-wing Seattle cartoonist, who suggested in reaction to Internet threats to free speech
posed by Islamists that everyone draw likenesses of Mohammed on May 20,
2010 in protest. However, as a result of a fatwa placed on her by Anwar al-Awlaki, Norris was forced into witness protection to prevent attacks on her life by
erstwhile followers of the Prophet. Female cartoonist forced into hiding after doodling Everybody Draw Mohammed Day picture, The Daily Mail (Sept. 17,
2010), http://www.dailymail.co.uk/news/article-1312941/Cartoonist-MollyNorris-hiding-Everybody-Draw-Mohammed-Day-picture.html. The attack
on Pamela Gellers own cartoon contest shows exactly how prescient Norris
was to take cover.
424

Again, as Bosch Fawstin put it: if drawing Mohammed can get you killed,
then he should be drawn again and again and again and again, until drawing him
loses all power. McCarthy, supra note 413.

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all. They have mostly found it more convenient to find fault


with the person asserting his or her free speech rights425 than
standing up for the right itself. It is understandable that any
media outlet standing alone would take precautions when
publishing material thought to be oensive to Muslims, but
this does not mean that media outlets couldnt collude
among themselves, agree to publish such material, and act accordingly. The approach taken by Waldron and most in the
mainstream mediathat we should not gratuitously oend
Muslims by publishing material they consider blasphemous
is no more than a cowardly dodge since, again, they show little, if any, concern over those who place a statue of Christ in
a bottle of urine or a statue of the Virgin Mary covered in elephant dung and oer them up as works of art.426

425

As does Waldron. Possibly the worst example of self-righteousness masking


excessive timidity, if not rank cowardice, is the near unanimous refusal of the
Western press to re-publish the cartoons that caused the crisis throughout
the world in 2005-06. One response to them, in particular, was not only cowardly but absurd. This was that of Yale University Press, the publisher of Jytte
Klausens book The Cartoons that Shook the World, which in 2009 excised
reproductions of the very cartoons that were the subject of Klausens study. See
Yale University: Censorship of Mohammed Cartoons at Yale University Press,
Foundation for Individual Rights in Education, at
http://thefire.org/case/805.html. See also Reflections, supra note 322, at 20009; and Nick Cohen, You Cant Read this Book 94-97 (Fourth Estate
2012).
426

How has the mainstream press responded the murders of the editor and the
cartoonists of the French satire magazine, Charlie Hebdo, by three enraged Islamists? By doing just what they did during the 2006 attacks on JyllandsPosten: they have refused to honor both Charlie Hebdo and freedom of ex-

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Third, the same emissions argument with a dierent


outcome applies to Muslim fanatics who find themselves outraged by perceived insults to Islam. One violent Muslim who,
by himself, lops o the head of someone he believes insulted
Islam will not necessarily lead to the murders of others.427 But
if several thousand jihadists do as he, the result will be catastrophic. So, instead of arguing, with Waldron, that we
should avoid giving oense when we think the result will be
rioting, violence, and loss of life, we should argue that Muslims, like all other human beings, have a moral obligation not

pression by re-publishing its cartoon drawings, effectively submitting to the Islamists Sharia requirement. As before, they took the cowardly high-road. CNN
memo to staff: We are not at this time showing Charlie Hebdo cartoons of the
Prophet, Hot Air (Jan. 7, 2015), http://hotair.com/archives/2015/01/07/cnnmemo-to-staff-we-are-not-at-this-time-showing-charlie-hebdo-cartoons-ofthe-prophet/. Then there is Americas paper-of-record, distorting its account of the Hebdo attack by omitting the words of one of the attackers who
said to a female member of the newspapers staff cowering in fear: We dont
kill women, but you must convert to Islam, read the Quran, and cover yourself. Jim Treacher, New York Times Reports On Muslim Proselytizing During
Charlie Hebdo Attack, Then Deletes It, The Daily Caller (Jan. 8, 2015),
http://dailycaller.com/2015/01/08/new-york-times-reports-on-muslim-proselytizing-during-charlie-hebdo-attack-then-deletes-it/. Contrast such highminded journalism with its better half: See Lachlan Markay, A Tribute to Charlie Hebdo, The Washington Free Beacon (Jan. 7, 2015), http://freebeacon.com/national-security/a-tribute-to-charlie-hebdo/.
427

The rise of ISIS and its call to individual jihadist acts around the world have
made each one an inspiration for others has changed matters somewhat.

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to attack with violence those whose speech they find oensive. By not holding Islamists to the same moral and rhetorical standards we hold ourselves, and by blaming the speakers
rather than the doers for the violence, we are only encouraging more of the same. By standing up to Islamists and asserting our free expression rights in the face of their threats of
violenceas, for example, did Jyllands-Posten, Charlie
Hebdo, and Pamela Gellerwe are not only upholding a key
Western value, we are also, surprisingly enough, treating
them as equals.428
It is interesting to note that in his analogy of pornography to automobile emissions, Waldron never actually argued that those mi!ions of acts of viewing pornography directly caused any given viewer to rape or murder, yet he
does lead us to think that Rushdies publication of Satanic
Verses caused the Fatwa to fall on his head, and that the
sketch of cartoonist Kurt Westergaard and its publication by
Jyllands-Posten caused the cartoon riots. However, the
only way these claims make any sense is if we accept the absurd claim that were it not for their expressive acts, Islamic
fanatics would not have been forced to riot!429 Besides attributing the cause of the violence to the wrong party, this claim
428

Standing up to Islamists will obviously also require a desire to do so, along


with the necessary military forces to complete the task.
429

As if they needed an act of speech to do so. Moreover, this claim is strikingly


similar to that of some commentators on the Skokie affair who argued that the
mere fact of the possibility of Nazis marching in the Village square would have
forced them to come out and confront them, if not crack some heads; for given
their memories of the Holocaust, they simply could not stand by and pass on
the parade. See, e.g., Hate in the Classroom, supra note 242, at 136. Such an argument defends violent acts on the grounds of provocation, which is an argument

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is demeaning to Muslims as it altogether infantilizes them,


suggesting they are unable to control themselves and, therefore, that they are anything but civilized human beings. It
seems more than obvious that those Muslims who rioted
were themselves the ecient cause of the riots that ensued
rather than the book, the authors, the cartoons, or the newspaper that published them, and that the rioters are the ones
who should bear the moral, legal, and political responsibility
for the attendant death and destruction.
One final point in this regard. Hate speech laws play a
part here as well. They communicate to the outraged victims of hate speech that they are right to be outraged, and
that the person or group responsible had no right to oend
them. Thus, by suppressing anti-Islamist rhetoric, hate
speech laws inspire violence by validating this sense of outrage.
Moreover, since rioting indicates the depth of the
outrage, it leads state ocials to appease rioters still further
by expanding the reach of such laws to prosecute expression
formerly thought to be protected. For example, in 2008 the
European Union required all member states to pass religious
hate speech laws declaring that there is no right to religious

almost any of us could make for ourselves at some time or other about some or
other issue that seriously offends us. However, whatever happened to the longstanding liberal argument that one is obligated in civilized societies to control
ones violent impulses in the face of verbal provocation?

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insult.430 Why the new mandate? One European Commission ocial delicately explained that this measure was taken
to preserve social peace and public order in light of the increasing sensitivities of certain individuals who have reacted violently to criticism of their religion. So the reason
for the new mandate wasnt to encourage tolerance or equality; it was, instead, to appease Islamists by protecting their
religion from criticism in the hope that this would prevent
further rioting, showing, once again, the utility of the timetested hecklers veto.
Waldron, however, seems to think that the onus for
rioting should be placed anywhere but on the rioters or hate
speech laws. He faults the newspaper for publishing the cartoons, along with those newspapers and magazines that reproduced them, and, presumably as well, the cartoonists who
created them. He says that exercising the right to publish the
cartoons was as unnecessary as it was oensive, and he
discerns something foul in the self-righteousness emanating from those Western liberals who incessantly clamored for publication and re-publicationhere he is at one
with Yale University Press as well as all those critics of Pamela Gellers Draw Mohammed contest. But why vent ones
outrage against those who were exercising their universal free
speech rights and not the rioters who would kill them? Why
blame the writers and publishers whose intentions were obviously not to cause worldwide violence but to illustrate a childrens book and stand up for free expression, rather than the
Muslim rioters whose intentions were violent? Perhaps, like
many Western liberals and leftists, Waldron was attracted by
430

Nina Shea, Hate Speech Laws Arent the Answer to Islamic ExtremismTheyre
Part of the Problem, National Review (Jan. 9, 2015), http://www.nationalreview.com/article/411361/hate-speech-laws-arent-answer-islamic-extremismtheyre-part-problem-nina-shea.

342

Chapter XThe Slippery Road From Dignity to Offense

the convenience of doing so? Perhaps, as well, it was because


he believes with MacKinnon that hate speech, like pornography is not only words but a world defining activity? (74)

343

n
XI
Hate Speech and Pornography
as World Defining Activities
As noted throughout, Waldron argues that private individuals have a moral obligation to accord vulnerable minorities recognition respect. In turn, he says, the government has an obligation of its own to enforce this moral obligation by means of a group libel statute. The result is that by
passing such a statute the government is legislating, or defining, a world in which all will be forced to live their lives. The
reason governments are able to define worlds is that, subject to constitutional restraints, they have the authority do so
given by the consent of the governed. If, for example, the
legislature says X is the law, then, caeteris paribus, X is the
law. The legislature can be said to have made the law by an
act or acts of speech. Given certain felicity conditions,431
simply stating The law is X makes X the law.
As Waldron says, hes learned a lot from carrying
MacKinnons jockstrap. Unfortunately, some of what
MacKinnon taught him is not quite accurate. Let me begin

431

For example, the idea that citizens have empowered the legislature to make
law for them and have agreed, subject to constitutional restraints, to accept it
as law to themselves.

Chapter XI Hate Speech and Pornography as World Defining Activities

by considering a set of claims MacKinnon makes about pornography that Waldron seems to swallow wholesale.
MacKinnon argues that pornography is more than
just speech; it is an act, as well, and an act of discrimination
at that. In her pornography-as-discrimination argument the
claim is that to utter certain statements or to display certain
images is also to discriminate against women and children.
The same argument with appropriate alterations is applicable, so it is said, to other subordinated, oppressed, or
marginalized groups. The basic idea is that the public dialogue is so flooded with pornographic images of women (or
racist images of minorities) that contrary images have little or
no chance of gaining a foothold. As a result, when men see a
woman, they image a slut; when Whites see Blacks or Latinos, they visualize lazy, shifty, shuing buoons and/or
scam artists. The reason for both is that the grip of pornographys image of women (or racisms image of minorities) is
so strong that it has become the norm.432

432

Commenting on the way negative stereotypes can affect behavior; Alexander Tsesis suggests that [a]fter having been exposed to negative images of
blacks, people are more likely to anticipate that blacks are dangerous. Completely innocuous eventsfor example, a black man approaching in the middle
of the street at nightare often interpreted as perilous even when no factual
reason for fear or anxiety results. Destructive Messages, supra note 142, at
87. However, what makes Tsesis so certain the event is [c]ompletely innocuous? Perhaps, given the statistics on Black-on-White violence, and even Blackon-Black violence, it is prudent (not foolish) for anyone who values his safety
to be wary. It was certainly prudent for the terminally race-conscious Jesse
Jackson, who, in 1993 said There is nothing more painful to me at this stage of
my life than to walk down the street and hear footsteps and start thinking

346

Chapter XI Hate Speech and Pornography as World Defining Activities

Men, thus, see women as sluts or whores; Whites see


minorities as inferior. In neither case do the images present
women or minorities as independent, rational, and moral
agents fully capable of equal citizenship. Hence, the argument goes, pornography discriminates against women by portraying them as unequal to men, and racist speech discriminates against minorities by portraying them as unequal to
Whites. But here is the rub: in both cases, MacKinnon argues, the portrayals are not just images; they are acts of discrimination; for to portray a woman as a slut is actually to
treat her as a slut, (i.e., as a lesser being) just as to portray a
Black or Latino as lazy or shiftless is to treat him or her as
sub-human. In this view of the world, pornography or racist
expressions are less speech or images than actions or doings, not in the sense that they indicate or depict doings but
that they are the doings they depict.433
Though false, this slight of mind is useful for anyone
who wishes, but fails, to present a causal argument. Waldron
is one such person. For while, as we have seen, following
about robbery. Then look around and see somebody white and feel relievedAfter all weve been through. Just to think we cant walk down our own
streets, how humiliating. Jesse Jackson, Wikiquote, http://en.wikiquote.org/wiki/Jesse_Jackson.
433

MacKinnons claim that pornography is an act not speech, that it is a doing


not a saying was not well received by Ronald Dworkin either. Responding to
a claim by MacKinnon that he had ignored this profound contention, Dworkin
said he did not ignore it but could find no genuine argument in itI still
cantbut I tried. Dworkin, supra note 92, at 242. I should note here that I
am not denying that in some contexts and under certain felicity conditions, to
speak is to actfor example, saying I vote no in an election where you are entitled to vote is in fact to vote no: the words are the act. However, MacKinnon
has to alter both contexts and conditions to arrive at her mistaken conclusions.

347

Chapter XI Hate Speech and Pornography as World Defining Activities

MacKinnon, Waldron says a causal argument can be made


between pornography and hate speech and the harms they allegedly cause, he nowhere presents it; just as MacKinnon, he
nowhere shows that pornography and hate speech directly
cause the socially harmful behavior that he says can be
demonstrated. Instead he simply asserts such a connection
and, with MacKinnon, moves on to an altogether dierent
causal planeone, which instead of asserting a direct
causal relationship between speech and conduct, argues that
that the mere toleration of hate speech and pornography creates a world hostile to women and minorities. On this second-level causal argument women and minorities are
harmed indirectly by being forced to live in a hostile world.
What creates the world is the hateful and pornographic expression being tolerated. Thus, standing once again with
MacKinnon, Waldron claims that the impugned expression
is the world creating harm.
Nevertheless, on whichever level one is operating
speech causes harm directly or speech creates a hostile
world which indirectly causes harmboth MacKinnon and
Waldron attempt to surmount the traditional speech-conduct distinction by drawing on speech-act theory. This theory, as we shall see, would circumvent the distinction in the
first instance by collapsing the eect into the cause, the
deed into the word. In this way, pornography and hate
speech magically become the harms they allegedly cause.
Here, for example, is MacKinnon,434 for whom the actor in the pornographic drama is not the person but the
product: Pornography is a political practicePornography, in
the feminist view, is a form of forced sex, a practice of sexual
434

See the devastating assault on MacKinnons anti-pornography argument in


Gey, supra note 134, at 60.

348

Chapter XI Hate Speech and Pornography as World Defining Activities

politics, an institution of gender inequalityPornography is


not imageryIt is sexual reality.435 What many people who
dislike pornography might otherwise think is a corruption of
the erotic,436 a physical stimulus,437 or a vulgarized public image of the properly private and intimate,438 MacKinnon believes is actually a social construction of male and female:
Men treat women as who they see women as being. Pornography constructs who that is. Mens
power over women means that the way men see
women defines who women can be. Pornography
is that way.439
435

Not a Moral Issue, 2 Yale L. & Poly Rev. 321, 323, 325-27 (1984) (emphasis
added). As well, pornography is more act-like than thought-like. Like segregation, pornography institutionalize[s] the idea of the inferiority of one group
to anotherpornography is the essence of a sexist social order, its quintessential social act. Id. at 335.
436

Susan Griffin, Pornography and Silence: Cultures Revenge


Against Nature (Harper & Row 1981).
437

Frederick F. Schauer, Speech and SpeechObscenity and Obscenity: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L. J. 899, 922 (1979).
438

Walter Berns, Freedom, Virtue, and the First Amendment (Louisiana State University Press 1957).
439

Not a Moral Issue, supra note 435, at 326. Attempting to assist MacKinnon in
explaining how pornography may contribute toillocutionary disablement
resulting in the silencing of women, Rae Langton suggests it may do so by
undermining reciprocity which is something like: [sic] mutual capacity for
uptake between speaker and auditor. Pornography, thus, intervenes between
them destroying the possibility for uptake which, in turn, may make refusal
unspeakable for some women in some contexts. And so pornography silences

349

Chapter XI Hate Speech and Pornography as World Defining Activities

Thus, pornography constructs a universe in which men see


women as inferior beings who love to be bound, battered,
tortured, humiliated, and killed. (Or merely taken and
used.)[!] Men are said by MacKinnon to find all this
erotic.440
women. Subordination, Silence, and Pornographys Authority, in Censorship
and Silencing 275 [Robert C. Post, ed., 1996]. It is puzzling how Langton
reaches the conclusion that pornography silences women from purely hypothetical premises.
Like Waldron on hate speech or pornography, Langton presents no
empirical evidence to substantiate a charge that pornography either subordinates or silences; in fact her argument in support of MacKinnon is almost entirely speculative as it is loaded with perhaps, ifs, may causes, supposes,
and the like hypotheticals, all of which suggest that her underlying interest is
less in establishing the thesis that pornography subordinates and silences than
in showing that MacKinnon is not altogether out of her mind. Moreover, apparently by unspeakable Langton does not mean that the speaker cannot utter the required words but that the words will fail to be heard as intended. This
is a stipulative and rather precious definition of the term: one only speaks when
one is understood as intended. Of course, ones intention is an empirical matter
and it is often not easy to read it correctly. Stipulating no means no is easy
enough, but given that the reader is always in the here and now with this particular person under these particular circumstances, it is rather simplistic and nave to accept a priori the stipulation as empirically correct.
440

Not a Moral Issue, supra note 435, at 326. Many things create hostile
worlds. The actions of those demagogues whose racial rhetoric incited people
to burn and loot stores in Ferguson, Missouri in protest against the altogether
legitimate police shooting of Michael Browna thug who manhandled a store
manager attempting to prevent him from stealing cigars, and then attacked a
police officer who was attempting to arrest him, punching him in the face and

350

Chapter XI Hate Speech and Pornography as World Defining Activities

Nor is pornography the only player in this drama: Pornography (like the racism, in which I include anti-Semitism,
of the Nazis and the Klan) is not at all divergent or unorthodox. It is the ruling ideology.441 Nevertheless, this porno-racist ruling ideology is not readily apparent and not at all obvious: for because of its pervasiveness, potency, and success
in making the world a pornographic place, the harm of
fighting for his gun in the process, and who, after all this, charged at the officer
when ordered to stopclearly created a hostile world for police officers. The
same is true for the rhetoric maligning the NYPD as racist for allegedly murdering a black man resisting arrest in New York. The result was a hostile environment which encouraged a lunatic to assassinate two police officers sitting
peacefully in their cars as an act of revenge for the Ferguson and New York
deaths. Larry Celona, et al., Gunman executes 2 NYPD cops in Garner revenge,
New York Post (Dec. 20, 2014), http://nypost.com/2014/12/20/2-nypdcops-shot-execution-style-in-brooklyn/.
While I think it is legitimate to blame such rhetoric for contributing
to the hostile environment which led to the deaths of the police officers, examples of such indirect contributions are so commonplace that if we prosecuted
them, our free speech guarantee would be practically worthless. The same is
not true, however, when the culprit turns out to be state officials whose contributions directly foment violence. For example, the rhetoric responsible for
spawning and legitimizing the violence and looting in Baltimore in April of 2015
can clearly be laid at the feet of its Mayor, Stephanie Rawlings-Blake, who said
publicly that she instructed the police to back-off of the rioters in order to
[give] those who wish to destroy space to do that. Chuck Ross, Baltimore
Mayor: Space Was Provided To Those Who Wished To Destroy, The Daily
Caller (Apr. 26, 2015), http://dailycaller.com/2015/04/26/baltimore-mayor-iwanted-to-give-space-to-those-who-wished-to-destroy-video/.
441

Not a Moral Issue, supra note 435, at 337.

351

Chapter XI Hate Speech and Pornography as World Defining Activities

male supremacy [is] made dicult to see. Because the harm


is so much of what is, it cannot be discerned from the objective standpoint. Thus, MacKinnon concludes, the issue
is not what the harm of pornography is, but how the harm of
pornography is to become visibleTo the extent pornography succeeds in constructing social reality, it becomes invisible as harm.442
In this closed circle of post-modern discourse,
MacKinnon is perfectly situated to say almost anything
about the alleged harms of pornography because there is no
objective standpoint from which to evaluate what she says.
There is either the male or pornographic point of view, or
that of the women and children443 they victimize. However,
if as she claims, the harm pornography causes has become
invisibleand in her mind it has become invisible because
pornography has succeeded in constructing a social reality
which made it invisiblethen we really cant know anything
at all about the harm, including whether it is real or imaginary!
Here MacKinnon is sister to fellow suppressionist
Charles Lawrence III who is convinced that racism has so
successfully infected the public mind that it too has become

442

Id. at 335.

443

Do women and children share the same point of view? Or do they have separate and, possibly, different views? If the latter, who is entitled to speak for the
children? The women and children mantra actually infantilizes women by
linking their interests and outlooks to those of children.

352

Chapter XI Hate Speech and Pornography as World Defining Activities

invisible.444 She is sister as well to Cass Sunstein who argues


that we need not take the current preferences of people as
fixed and stable in all or almost all contexts because they
are endogenous,445 and she is daughter to Herbert Marcuse
who described North American society as a one-dimensional fully coordinated society" whose control over the
minds of its subjects has become so complete that its victims
are entirely unaware of their victimization.446 So all-encompassing is this hold on peoples psyches that they are unable
to see their way out to another dimension. Of course, given
the assumptions of total control, neither Marcuse, nor Sunstein, nor Lawrence, nor MacKinnon could logically explain
how they were able to notice it and find their way out of it in
the first place.
444

Racism is in large part a product of the unconsciousIt is part of our common historical experienceRacism is irrationalIt is also arguably dysfunctionalRacism is normal. It is a malady we all share, because we have all been
scarred by a common history. Racisms universality renders it normal. Ego, supra note 161, at 330. However, if racism is universal, part of our common historical experience; if its normal, and a malady we all share, then, because it
is also a product of the unconscious, it is so embedded into the culture, so
much a part of everyones life, so ever-present, that no anti-hate speech law
could possibly root it out. See also Destructive Messages, supra note 142, at
chapter six.
445

That is, adaptive to a wide range of factorsincluding the context in which


the preference is expressed, the existing legal rules, past consumption choices,
and culture in general. Preferences and Politics, 20 Phil. & Pub. Aff., Winter
1991, 5.
446

Repressive Tolerance, in A Critique of Pure Tolerance 116, 110 (R.P.


Wolfe, Barrington Moore Jr., & Herbert Marcuse eds., 1965).

353

Chapter XI Hate Speech and Pornography as World Defining Activities

One wonders how seriously to take such foolishness,


but MacKinnon, apparently, believes it. In her perverted
world, mena! men (which, apparently, includes her husband
as well)are drawn on the model of brutal rapist and murderer, Thomas Schiro. Schiros crime was a particularly horrific act of brutality. After he had repeatedly raped and tortured his victim, he beat her on the head with a vodka bottle until the bottle broke, beat her with an iron, and when
she resisted, finally strangled her to death. Schiro capped o
his enjoyment by engaging in a round of cannibalism and a
quickie of necrophilia.447 Convicted of murder and sentenced
to death in 1981, Schiro managed to beat the death rap in
1996.448 On appeal of his original death sentence, Schiro
went MacKinnon, claiming that he was a lifelong pornography consumer and, as a result, not responsible for his actions. Why wasnt he? In MacKinnons words: To receive
the death penalty, a defendant must be capable of appreciating the wrongfulness of his actions, but that is exactly what
pornography was proven to destroy in the consumer by evidence in this case.449 Pornography had evidently destroyed
Schiros ability to distinguish right from wrong; so, in
MacKinnons world, he couldnt possibly be guilty of anything, much less be put to death for a crime he didnt commit. The real culprit was pornography, not the murderous
scoundrel it allegedly created. Once again, MacKinnon said,
447

Strossen, supra note 134, at 270-71.

448

Schiro v. Clark 963 F.2d 962 (7 Cir. 1992).

th

449

Only Words, supra note 39, at 95-96. And why wouldnt it, at least on Andrea Dworkin and MacKinnons arguments that Pornography makes it impossible for [men] to tell when sex is forced, that women are human, and that rape
is rape. As quoted in Strossen, supra note 134, at 272, referencing Tad Friend,
Yes: Feminist Women Who Like Sex, Esquire, Feb. 1994, 48-56 at 54).

354

Chapter XI Hate Speech and Pornography as World Defining Activities

the authorities got the wrong culprit because the pornographers were left completely o the hook.450 Surely there
exists no more ghastly example of the moral and legal consequences attendant upon ignoring the actual, living and
breathing causal culprit in favor of pursuing a preferred linguistic or pictorial phantom.451
Pornographic words and images are harms in themselves, according to MacKinnon, apparently because in her
universe, men (apparently, again her husband as well) are in
the same position as dogs. For while the despised liberals
think that it is epistemologically possible to separate ideas,
attitudes, words, and images from actions or behavior,
MacKinnon disagrees: words and ideas, etc., are acts, and
acts are words and ideas, etc. They are inseparable.
Which is saying kill to a trained guard dog, a
word or an act? Which is its training? How about
a sign that reads Whites only? Is that the idea
450

Only Words, supra note 39, at 97. Strossen, supra note 134, at 271-72,
notes that another rapist and killer of two girls, ages twelve and thirteen (Steven P. Mignogna) took the MacKinnon defense a step further arguing that he
should be exonerated because he had become emotionally unstable as a result
of being exposed to pornography at a store he had visited two or three times,
even though, unlike Schiro, he did not even show that he had bought or looked
at the sexually explicit materials in question. Given that the Court ruled
against him on this ground, it left open the possibility that had he bought or
looked at them he might very well have walked. Like Schiro, the pornography
made him do it.
451

See Strossen, supra note 134, at 266-79 for a feminist account of what the
pursuit of the pornographic phantom ignores in terms of the real causes of sexual inequalities.

355

Chapter XI Hate Speech and Pornography as World Defining Activities

or the practice of segregation? Is a woman raped


by an attitude or a behavior? Which is sexual
arousal?452
Having discovered the speech-as-act theory of Austin and
the usefulness in argument of rhetorical questions, MacKinnon marches straight to the flawed conclusion that images
and words (pornography or signs) are actually acts of rape and
segregation!453
It is certainly true that saying kill to a trained guard
dog can lead it instantly to attack someone or something in
much the same way that falsely shouting fire in a crowded
theater can lead to an instant panic. Fire is a word that, as
Holmes said, carries all the eect of force, and, in the context of Holmes metaphor, it doesnt much matter who utters
it. Nevertheless, it does matter to the guard dog exactly who
utters the word kill. The mere utterance of the word by a
stranger or phonograph record is likely not sucient to set
him in attack mode.454 In any event, men are not dogs, and
when they are not put in a position where they are forced to
act without much thought, they do not generally react without thinking as might panicky theatergoers.
452

Not a Moral Issue, supra note 435, at 337.

453

So convinced was MacKinnon of this silliness that she claimed that a man
who fantasized in print that he raped MacKinnon actually raped her by his fantasy! Carlin Romano, Between the Motion and the Act, The Nation, 563-70
(1993) (book review, reviewing Only Words, supra note 39); Richard Lacayo,
Assault by Paragraph, Time, Jan. 17, 1994.
454

Unless, of course, he has been brainwashed to do so by North Koreans as


was Lawrence Harvey in The Manchurian Candidate (United Artists
1962).

356

Chapter XI Hate Speech and Pornography as World Defining Activities

Waldron, just as MacKinnon, says that a sign that reads


Whites only! is harmful to non-white minorities. But why
should it be? What authority does the sign poster have, as a
private individual, to enforce that message? True if the state
supported his demand by legally enforcing its message, it
would have the eect of discriminating against those minorities, but this would be due to the states enforcement action,
not to the mere presence of the sign. For suppose, on the
other hand, that state ocials refuse to enforce his demand,
his sign would carry no authority whatever over any minority
group member who refused to obey it. More realistically today, the sign poster might well expect to find himself the victim of some anti-discrimination statute and be taken to
court. In any event, by itself, the sign segregates nobody unless that nobody chooses to be segregated. The reason is
that private individuals have no authority whatever to expect
others to obey their demands unless these demands are legally enforceable by state ocials. Again, despite MacKinnons (and Waldrons) best eorts to make them such,455 private individuals are not state ocials endowed with the authority to coerce. Thus, the impugned signs might carry all
the eect of force if they were erected and enforced by state
authorities or erected by a private individual in an already
state segregated system that authorized such signage, but we
dont live in a state mandated segregated society; far from it.
We live in a society that bends over backwards to be inclusive.
Whats missing in both of the examples of word
magic MacKinnon oers is the element of authority, whether
it is the authority of the trainer in the case of the guard dog
or that of state ocials in the case of segregation. Neither
pornography nor those who make it carry any taint of ocial
455

See Chapter IV.

357

Chapter XI Hate Speech and Pornography as World Defining Activities

authority in our society. Lacking this necessary element,


MacKinnons sexy456 pornographic argument collapses altogether.457
Waldron takes up the MacKinnonite argument in his
discussion of C. Edwin Bakers speaker-centered free expression argument. He agrees with both Baker and MacKinnon
that speech acts are never purely expressive or presentational, but can be designed to wound, terrify, discourage,
and dismay. However, he rejects Bakers instrumental argument saying that the harms Baker emphasizes are often
harms constituted by speech, rather than merely caused by
speech. (166) Following MacKinnon, Waldron says that hate
speech aims to dispel the sense of assurance thatconstitutes the social upholding of individual dignity. Hate speech
aims to undermine this, to discredit it, and erode its credibility. The work that hate speech does in this aspect is largely
performative. Hate speech
sets out to refute the communitys generalized assurance that is supposed to underpin the ordinary
dignity of its most vulnerable members. The community says, In our eyes, you are unreservedly
welcome here, same as anyone else. The hate
speech says, Hell no! Not herenot in these eyes
youre not. Be unsure of acceptance; be afraid; be
ready for hateful exclusion. (166-67)

456

Strossen, supra note 134, at 155-60, has observed that MacKinnon seems to
get off on describing the acts she thinks pornographic.
457

And along with it goes Waldrons argument that private individuals have
governmental obligations to stand out of the way and not say anything that
undermines state attempts to grant assurances to vulnerable minorities.
See Chapter IV, Section B.

358

Chapter XI Hate Speech and Pornography as World Defining Activities

Notice how for Waldron, as for MacKinnon, it is


hate speech not the hate speaker which is the active
agent here. Its hate speech that damages the dignity and
reputation of individuals in vulnerable groups; it is hate
speech that undermines the public good of socially furnished assurance with which the dignity of ordinary people is
supported; and it is hate speech which through the hateful
disclosure of racist attitudesdefaces and pollutes the environment in which members of vulnerable groups, like the
rest of us, have to live and bring up their children. (166)
However, Waldron to the contrary, it is not speech
which is the real actor; it is the person speaking who is doing
the acting. Moreover, there is no guarantee whatever that his
signs will constitute anything other than his own words.
There is no assurance that it will bring about any felicitous
outcome for which he might hope. For the mere fact that a
hate speaker makes his views public in the form of signage
carries no guarantee anyone will be following him on Twitter
or Facebook, or will be adversely aected by his rhetoric; nor
is there any obligation on the part of targets to accommodate
their behavior to his wishes, whatever these may be. He may
write Niggers Go Back to Africa until his pen runs dry, but
no black person is obligated to follow his instructions, and it
is a pretty good bet that the poster of the sign, if known, will
be closely watched by the local police. Again, unless he is in
some position of authority over members of a vulnerable
minority such that his speech is a command they are obligated to obey, they have no reason to think his signs are anything more than manifestations of some psychological imbalance or impotent rage. Waldrons vulnerables are not stupid; they know that in any confrontation with the signers today, they have the force of the state on their side. Only a
fool, or an exceptionally fearful and skittish soul, would think
that, under such conditions, the appearance of a hateful sign
automatically spells disaster for him.

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Chapter XI Hate Speech and Pornography as World Defining Activities

It is here that Waldrons argument falls into the same


trap as MacKinnons. He endows hateful signs with causal
power in an attempt to get the benefit of a causal argument
without actually making one. Like MacKinnon, Waldron
claims the signs are the harm and, in so doing, dispels the
need for the problematic causal link: pornography and hate
speech now become the harms they are said to cause. For
whereas, as he notes, Baker assumes there is an instrumental
distance between the speech act and the bad consequences
of the hate speech, Waldron says [t]he harm is the dispelling of assurance, and the dispelling of assurance is the
speech actit is what the speaker is doing in his self-disclosure. (167)
For anyone wishing to avoid the diculties involved
in having to show the problematic causal link between hate
speech and specific mistreatments, the benefits of Waldrons
reasoning are obvious. By collapsing deeds into words, eects
into causes, we no longer have to pay obeisance to the insurmountable speech-conduct distinction. We can now ignore it
altogether. It is by means of such word-magic that Waldron
and MacKinnon are permitted to claim that pornography
and hate speech construct the worlds vulnerables must inhabit.
Nevertheless, this i!ocutionary458 wand-waving is not
convincing, and there is reason to believe that, though he indulged it, Waldron himself was not entirely convinced by it.

458

In speech-act theory, an illocutionary act is performed when the saying is


also the doinge.g., said under conditions where one is empowered to vote and
one is understood to be voting, the statement I vote no is also the act of voting itself. A perlocutionary act occurs when someones speech succeeds in convincing, persuading, alarming, or warning someone of somethinge.g., He

360

Chapter XI Hate Speech and Pornography as World Defining Activities

On the one hand, he says that hate speech is world-creating: for simply by being displayed in public it intimidates, strikes
fear, damages dignity, undermines assurance, defaces and pollutes the environment, and even coerces targets despite the
fact that state ocials are both empowered and willing to ensure that hate speakers do not become hateful actors.459 But
then he adds a qualification: for while he says, [t]he harm is
the dispelling of assurance, and the dispelling of assurance is
the speech act, he adds, it is what the speaker is doing in
his act of self-disclosure, as far as he is capable. (167, emphasis
added) If this assurance is dispelled, we could say there is
harm; but, of course, the harm could be due to any number
of things, ranging from the degree of ignorance, negligence,

convinced me not to hang out with Lefty. Perlocutionary acts, by contrast,


separate cause and effect.
459

What is striking is how nave and mistaken Waldron can be about ascribing
harm. Again, he cites Nazis marching in Skokie carrying anti-Semitic slogans as
an instance of what he means (Waldron at 34, 71), but, again, the Nazis never
marched in Skokie, and when they did assemble in front of the Federal Building
in downtown Chicago, all twenty strong of them had to be ushered in with a
police escort, from an escape route through buildings and underground passageways. Greeted by spectators with a hail of eggs, beer cans, rocks, and epithets, the Nazis stayed for only ten or fifteen minutes and left the way they
came. The police arrested about a dozen counter-demonstrators and everyone
else went home. The Nazis assembled a couple of weeks later on their home
turf where they had some local support but, again, there were more counterdemonstrators than supporters and more curiosity gawkers than either. In
short, the only harm caused was to the Nazis themselves. After Chicago, the
Nordic-Neos lost their god-like thunder altogether. Philippa Strum, When
the Nazis Came to Skokie 143 (University of Kansas Press 1999).

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sensitivity, or anxiety in the targeted person(s) to the intellectual and rhetorical capabilities of the person or group
posting or carrying the sign(s), or simply to the fact there are
no police around at the moment to counteract the fears, etc.,
of the intended targets. In any event, Waldron himself gives
up the ghost when he appends the phrase as far as he is capable. Indeed! In the end, it really isnt the signs at all; its
the ability and, I would add, the status of the speaker that is
the real issue; for the success of the speech-act depends entirely on who is speaking (a government ocial or a private
citizen)460 and, only then, on the speakers ability to dispel assurance. Thus, Waldrons claim that assurance is dispelled by
the mere presence of hateful signs is mistaken. Once again, the
claim falls prey to the toleration is promotion fallacy. For
the mere fact that the state is permitting the expression does
not entail that it is also giving its imprimatur to the content
or viewpoint being expressed, and the fact that the state is
not giving its imprimatur means, once again, that the speaker
is altogether on his own.
In his speech-act dispelling of assurance argument,
Waldron takes a cheap shot at Baker, who argues the altogether sensible point that words cause no harm to a target
without mental mediation on his part. Baker means by this
not the silly point which Waldron attributes to himi.e.,
that a person is free to interpret a statement that Blacks are
not welcome as that they are welcome (170)but, instead,
that the words must be understood as intended, and having
been understood, the hearer must decide what to do about
them. He or she may ignore them, may become angered or
even demoralized that hateful people still exist, or may become defiant and more determined than before to continue
460

As I have earlier argued, Waldron collapses the distinction between government officials and private citizens altogether by rendering the latter mere
agents of the former. See Chapter IV, Section B.

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doing whatever each was doing that brought out the signs in
the first place. In short, there are many dierent reactions
targets might have to such signs. Some might wilt in despair,
but there is no reason why that would be a necessary eect of
encountering such signs.
Indeed, irony of ironies, Waldron doesnt really seem
to care in what the reaction to hateful signs consists because,
for him, the damage caused
is done by the speech in requiring its targets to
resort to the mental mediation that Baker recommends, and he gives no convincing reason why society should not pay attention to the harm that is
wrought at this stage, the harm of requiring them to
do so. (171, emphasis added)
Once again, Waldrons harm argument which promised so
much collapses into the pedestrian. The harm is not in the
way they are forced to react, its simply because theyre forced
to react (i.e., think about what to do) that is the problem.
Hence, Waldron says, while targets might respond in the
defiant posture of a critic, they shouldnt be forced to respond to the signs at all. They shouldnt have to laboriously
conjure up the courage to go out and try to flourish in what is
now presented to them as a partia!y hostile environment. To
the extent that [the racist message] already puts them on the
defensive, and distracts them from the ordinary business of
life with grim determination to try and act like a normal citizen against a! the odds, the speech has already succeeded in
one of its destructive aims. (171, emphasis added)
Here we see the ultimate weakness of Waldrons
hard-done-by-vulnerables argument. For having previously
said that hate speech per se damages the dignity and reputation of vulnerables, and that it undermines the public
good of socially furnished assurance, and that it defaces and
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Chapter XI Hate Speech and Pornography as World Defining Activities

pollutes the environment, he now says the environment is


only partia!y hostile to vulnerables, and that the harm
consists in the extent to which they are put on the defensive
and distracted from the ordinary business of life. So the environment is not entirely polluted or hostile, and hate
speech does not in and of itself cause the alleged harm except in the entirely puerile sense that vulnerables now have
to decide how to respond to the signs whereas without them,
they would not.
In point of fact, not just vulnerables but almost everyone lives in a partia!y hostile environment of one kind or
another and is forced to decide how to navigate the many
hostilities that confront them in the ordinary business of life.
Why are only Waldrons vulnerables special in this regard?
Many other vulnerables, as I noted at the outset, are just as,
or even more, entitled to the designation; just as, at some
times and places, are the presumably invulnerable. Many of
these last must negotiate their lives in environments that are
just as unwarrantedly hostile to them. For example, many
pooror even wealthyWhites, who either live in, or must
venture into, inner cities for work, have to be constantly on
guard to protect their lives, their health, or their property
from out-of-control violent inner city vulnerable youths.461
In this, they are also put on the defensive and distracted
from the ordinary business of life. Moreover, not just non461

See, e.g., Alexandria Fisher, 7 Dead, 41 Wounded in Wave of Chicago Weekend


Violence, NBC Chicago (June 16, 2013), http://www.nbcchicago.com/news/local/1-Dead-12-Wounded-in-Overnight-Shootings211673851.html; Thomas Tracy, Five people shot in the Bronx, Staten Island and
Queens over 21-minute span, Daily News (June 16, 2013), http://www.nydailynews.com/news/crime/people-shot-boroughs-22-minute-span-article1.1374045?localLinksEnabled=false. See also White Girl, supra note 111.

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Chapter XI Hate Speech and Pornography as World Defining Activities

vulnerables, but vulnerables themselves must also circumnavigate the dangers to their dignity that lie in the inner cities and are not caused by nasty signage but often by their fellow vulnerables.462
Furthermore, there are many things besides hateful
signs that, as members of one group or another, we would rather not, but are forced to confront every day. Particularly
since the election and re-election of President Obama, many
Democrats, along with their cheerleaders in academia and
the media, have consistently attacked the dignity of anyone
who dares to challenge the Presidents policies by calling
such challenges racist.463 Many Christians could just as well
do without seeing a statue of Christ placed in a bottle of
urine. Mormons probably would be happier if the Book of
462

Department of Justice statistics for the years 1980 to 2008 reveal that 93%
of black homicides were caused by other Blacks. Moreover, despite being less
than 13% of the population Blacks committed 52% of all homicides and were
49% of all victims. Tiffany Gabbay, Race Wars Part 1: The Shocking Data on
Black-on-Black Crime, The Blaze (Apr. 9, 2012),
http://www.theblaze.com/stories/2012/04/09/race-wars-part-1-the-shockingdata-on-black-on-black-crime/. See also Race and Crime in the United States,
Wikipedia, http://en.wikipedia.org/wiki/Race_and_crime_in_the_United_States#Uniform_Crime_Reports_.28UCR.29.
463

As Brit Hume noted, the Obama administration consistently uses the race
card as a shield to protect it from attacks on its policies and programs, and also
as a sword with which to attack its political and ideological foes as racists. Foxs
Brit Hume: Obama Uses Race As A Sword To Attack Others, Media Matters
for America (Apr. 13, 2014), http://mediamatters.org/video/2014/04/13/foxsbrit-hume-obama-uses-race-as-a-sword-to-at/198868.

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Chapter XI Hate Speech and Pornography as World Defining Activities

Mormon was not being produced as a humorous stage play


for Hillary Clintons amusement.464 Bicyclists have their dignity and equality regularly contested by overbearing automobile drivers and vice versa. Indeed, just about any member of
any identity group anywhere could come up with some written or spoken material or activity that they believed challenged the equal social status and dignity of their particular
group. Everyone, rich or poor, white or black, Christian, Jew,
or Muslim, hetero, gay, or whatever, has to deal with some or
other speech, ideas, and practices they despise and think
harmful; no one is immune and wont be as long as we live in
a free but imperfectly-ordered society. Until we get back to
the perfectly well-ordered gardenwhich, as Hobbes says,
we shall no sooner know than enjoythe speech we despise is better confronted than repressed. Permitted expression, it tells us who and what the not-so-well-ordered are,
what they are thinking, and where they are to be found. As
one wag put it, As long as we live in an ugly world, ugly
speech must have its forum.465

464

The Book of Mormon (musical), Wikipedia, https://en.wikipedia.org/wiki/The_Book_of_Mormon_(musical).


465

Civilizing Public Discourse, supra note 284, at 302. For a criticism of current
attempts at restricting freedom of speech, not dissimilar from my own, see John
OSullivan, No Offense: The New Threats to Free Speech, The Wall Street
Journal (Oct. 31, 2014), http://online.wsj.com/articles/no-offense-the-newthreats-to-free-speech-1414783663#top.

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Conclusion
In Waldrons opening anecdote the father walking his
young son and daughter encounters signs saying Muslims
and 9/11! Dont serve them, dont speak to them, and dont
let them in. We are told, also, that he doesnt know what
to say when his ten-year-old daughter asks him What does
it mean, Papa? Really? Are we seriously to conclude that
Papa is so completely at a loss for words, so profoundly
broken down, and so dumbfounded, that he can find nothing
reassuring to say to his daughternothing at all? Waldron
decides to step in and help Papa by reading the signs for
him:
Dont be fooled into thinking you are welcome
here. The society around you may seem hospitable and nondiscriminatory, but the truth is that
you are not wanted, and you and your families will
be shunned, excluded, beaten, and driven out,
whenever we can get away with it. We may have
to keep a low profile right now. But dont get too
comfortable. Remember what has happened to
you and your kind in the past. Be afraid. (2)
So, instead of issuing calming words of encouragement to his
daughter, or dismissing the signs as a nuisance, Waldron
would attempt to terrorize her, or at least be sure to inculcate in her the required beliefs, habits, attitudes, and practices appropriate to the professional grievance-monger. The
signs apparently tell Pops: Were not welcome here, for
while the country seems hospitable, it really isnt; well be

Conclusion

shunned, excluded, beaten, and driven out. Theyre out


there waiting for us right now. Wed better not get too comfortable; after all, remember what happened to us in the old
country.466 In short, what Waldron wants Papa to communicate to his daughter is that unless Muslims are given
protection by state ocials prohibiting such signs, they
might well be beaten and thrown out of the country, or
worse. Is that the only message Papa can implant in his
young daughters memory? Is that all he might say? Is that
what he should say?
Maybe I can help him here. Perhaps, instead of inculcating an irrational fear and a sense of vulnerability in her,
this would be a perfect time for him to tell her a dierent
story, one that is more soothing and much closer to the
truth. He could tell her that many people are hurting in
America for something horrible that was done by Muslims
just like us, and in the name of our shared religion. True, he
would surely say, not all Muslims share guilt for the 9/11 attacks, but these were attacks that went to the heart of our
adopted and beloved countrys economic and political infrastructure, were committed by Islamist zealots, and so were
quite reasonably taken by the overwhelming majority of
Americans as acts of war on the part of followers of Islam.
He might also point out that while some of the Muslim organizations in the United States condemned the attacks,
466

For an updated collegiate version of the message that if you see a sign you
dont like, be sure to fear it and run as fast as you can to a safe space, see Sam
Budnyk, Emory Students Express Discontent With Administrative Response to
Trump Chalkings, The Emory Wheel (Mar. 22, 2016),
http://emorywheel.com/emory-students-express-discontent-with-administrative-response-to-trump-chalkings/.

370

Conclusion

Muslims throughout the world often cheered them on, leaving many Americans reasonably to believe that many, if not
all, Muslims were not only in sympathy with the attackers
but also posed a serious threat to the security of the country.
To cement this point, he might inform her that members of
their Islamic faith have been responsible for over 28, 758 terrorist attacks worldwide since 9/11.467
He might also have told her that President Bush went
on the air immediately after the attacks to say that this was
not an attack by Islam itself, and to assure Muslims that they
should feel secure in the knowledge that they would be protected by their government from any harm stemming from
any possible backlash. More than that, if Papa were truly to
speak truth to his daughter, he should certainly say, as well,
that American soldiers have shed much of their blood protecting Muslims in Europe, the Middle East, and Africa, that
it is nothing short of astonishing that there was no concerted
violent backlash by mainstream Americans after 9/11, and
that, unlike what has been the practice of Muslims in many
parts of the world, Americans went far out of their way to
prevent one. So those signs, he could say, reflected the views
of a small number of Americans who, perhaps, were traumatized by the attacks and were certainly not impressed by the
failure of some mainstream Muslim organizations to speak
out against Islamists, and because of this, not knowing who
was and who was not a patriotic American, perhaps unfairly
tarred all Muslims with a single brushstroke.
467

List of Islamist terrorist attacks, Wikipedia, http://en.wikipedia.org/wiki/List_of_Islamic_terrorist_attacks. See also What makes Islam so
different?, http://www.thereligionofpeace.com/Pages/TheList.htm, which
carries a running tally of the terrorist attacks by Muslims since 2001 (last visited July 5, 2016).

371

Conclusion

Finally, he might also point out that in America, unlike, say, Pakistanor from whatever other country the family may have emigratedthe government of the day is not
free to do whatever it feels like about speech it disfavors but
is bound by the Constitutions First Amendment to respect
the free speech rights of its citizens even when these are in
fundamental disagreement with its aims, values, institutions,
and desires. Look, child, he might say, as Muslims we have
been taught to believe that religion comes first and dictates
what we can and cannot say. But America is a secular society
and no religion dictates what anyone may or may not say
here. If one follows a religion one may well adopt the restrictions that religion places on speech, but no one can legitimately be forced to do so by means of state power. On the
other hand, he might say:
Look at the treatment accorded Shiites in Sunni
Muslim majority countries such as Pakistan.
Their Mosques are burned, their property is destroyed, their women are raped and their men
murderedall by fellow Muslims. In turn, in Shiite majority countries like Iran or Iraq, Sunnis are
sometimes treated in similar fashion. Look at the
horror currently being played out in Syria, Iraq,
Yemen, Jordan, Libya, or Egypt.468 As I speak, followers of Islam in Syria and Iraq are beheading
468

He might even read to her this letter to the editor of the Financial Times of
August 22, 2013 by a Mr. K. N. Al-Sabah, which might act as a field guide to
help clarify for her the politics of the Middle East today. In it he says: Sir, Iran
is backing Assad. Gulf states are against Assad! Assad is against Muslim Brotherhood. Muslim Brotherhood and Obama are against General Sisi. But Gulf
states are pro-Sisi. Which means they are against Muslim Brotherhood! Iran is
pro-Hamas, but Hamas is backing Muslim Brotherhood! Obama is backing

372

Conclusion

children, burning and burying people alive, raping


women, and selling them and their children into
slavery. Were lucky were here. Sure, there are
some bigots here as well as some dimwits who
carry their reaction to Islamist terrorism to such
an extent as to tar all Muslims with the same
brush. Nevertheless, we need not worry. America
is in no way equivalent to the Europe of the
1930s, and those hysterics who think it is, or is in
danger of becoming so, are greatly mistaken. We
are protected here, not against hostile expression
that carries no threat of imminent danger, but
against expression and action that does. The governments job is to protect ones body, not to control ones mind. It may regulate expression on political matters only in terms of its time, place, or
manner, but not at all on the basis of its content
or viewpoint. And that freedom, along with others, my child, is why we came to America in the
first place!
In short he might tell her that we Muslims are proud Americans like anyone else, and were not going to let the mutterings of a few boors turn us into the helpless victims some
professors and other members of the intelligentsia might
think we are, and, maybe, even want us to be. We are not the
Muslim Brotherhood, yet Hamas is against the US! Gulf States are pro-US.
But Turkey is with Gulf states against Assad; yet Turkey is pro-Muslim Brotherhood against General Sisi. And General Sisi is backed by the Gulf states!
Welcome to the Middle East and have a nice day. Andrew Kaczynski, The
Middle East Explained in One Excellent Letter to the Editor, BuzzFeed News
(Aug. 24, 2013), http://www.buzzfeed.com/andrewkaczynski/the-middle-eastexplained-in-one-excellent-letter-to-the-edi.

373

Conclusion

vulnerables they either think we are, or quite frankly, need


us to be. In fact, my dear, we should show some spine, stand
up, and denounce the Jihadist thugs we believe are hijacking
our lives, our religion, and our fortunes for their own despicable totalitarian reasons. We do that, and the nasty signs will
likely disappear.

374