Is the Cure of Censorship Better than the Disease of Hate Speech?

By
Randall Kennedy
April 09, 2018

Randall Kennedy is the Michael R. Klein Professor of Law at Harvard Law School.


In HATE: Why We Should Resist It with Free Speech, Not Censorship (Oxford University Press), the constitutional scholar Nadine Strossen recalls the first time she was subjected to an anti-Semitic slur. Although she was “a well-educated young adult” when targeted, she was nonetheless “stunned into silence.”  That did not last long. Strossen later became a leading champion of freedom of expression. She has served as president of the American Civil Liberties Union (1991 to 2008) and has persistently propounded the key tenet of engaged pluralism — More speech! — against the reflexive upshot of fear and disgust — Ban it! Now she has come forward with a splendid, accessible, instructive book that could not be more timely.

Strossen argues that, except in tightly defined circumstances, it is a mistake to attempt to deploy the coercive force of the government to eliminate so-called “hate speech” — speech that expresses hostility, detestation, contempt, or any related animus against individuals or groups. She accepts governmental suppression of this category of speech in an emergency, when there is no opportunity for deliberation or counter-speech, or when a speaker is directly threatening or harassing an individual. She resists suppression, however, when the basis for it is a conclusion that the type of speech in question is too hurtful, too vicious, or too loathsome to allow.

She acknowledges, quoting the Supreme Court, that “speech is powerful,” that it “can stir people to action” and “inflict great pain.” She concedes that malevolent expression can scald sensibilities and intimidate the vulnerable. She insists, however, that the cure of censorship is worse than the disease of hate speech. “Even worse than speech’s potential power to harm individuals and society,” she maintains, “is government’s potential power to do likewise, by enforcing ‘hate speech’ laws. Predictably, this elastic power will be used to silence dissenting ideas, unpopular speakers, and disempowered groups.”

Struggles for racial justice are typically reinforced, not impeded by, struggles for freedom of expression.

In advancing her argument, Strossen introduces readers to the canonical doctrines and rhetoric of jurists who have forged the speech-protective architecture of First Amendment jurisprudence. She invokes with special affection writings by Justices Oliver Wendell Holmes, Louis Brandeis, and William Brennan. But she also invokes Thurgood Marshall, “Mr. Civil Rights,” noting his insistence that equal treatment of protest by government is and should be an essential feature of First Amendment jurisprudence.

“There is an ‘equality of status in the field of ideas,’” Marshall wrote, when the Supreme Court ruled in favor of a white defendant prosecuted for picketing against what he viewed as an anti-white hiring policy: “Government must afford all points of view an equal opportunity to be heard.” Strossen’s suggestion that Mr. Civil Rights was also Mr. Civil Liberties underscores one of her central claims: struggles for racial justice are typically reinforced, not impeded by, struggles for freedom of expression. That includes expression that is vicious, racist, or otherwise hateful. Equal-rights advocates, she maintains, should rally around her capacious concept of free speech because, among other things, their own views are often disparaged, feared, and targeted for censorship. 

Though Strossen relates the key constitutional arguments surrounding the hate-speech debate, a notable virtue of her book is its attentiveness to what wisdom counsels, beyond what the law allows. To determine whether repression in the service of protecting vulnerable groups might be a wise policy, she appraises the record of institutions in America, such as public universities, that have deployed hate-speech prohibitions and the experience of nations across the globe that have turned to censorship to repress group vilification. Almost without exception, she finds that these efforts, even when made in good faith, turn out to be ineffective or even counterproductive, giving rise to suppression of some groups that these instruments of mandatory civility were intended to assist.

The specter of Nazism hovers over any debate over censorship of hate speech.

The specter of Nazism hovers over any debate over censorship of hate speech. Strossen faces that baleful fact with characteristic directness. “Given the horrors of the Holocaust,” she writes, “even die-hard free speech stalwarts [such as herself, the daughter of a Holocaust survivor] would support ‘hate speech’ laws if they would have averted that atrocity.” She argues, however, that Germany’s prosecutions of Nazis in the 1930s for group vilification actually helped them gain attention and support. The problem with the response to the rise of Nazism, she avers, is not that the National Socialists enjoyed too much free speech but that they were allowed, literally, tragically, to get away with murder. The problem was their hateful, tangible crimes, not their hateful speech. The ineffectiveness of censorship to facilitate social decency, she declares, is oft-repeated and oft-ignored. Quoting Human Rights Watch, Strossen maintains that investigations around the world have revealed consistently that "there is little connection in practice between draconian ‘hate speech’ laws and the lessening of ethnic and racial violence or tension.”    

By contrast, Strossen praises the potential of what she terms "“non-censorial strategies”: holding peaceful but vigorous counterdemonstrations when bigots stage their prejudice; deliberately ignoring obnoxious provocateurs since “silence can convey implicit messages of disdain, while at the same time denying hateful speakers the attention they seek and often get from sparking controversy”; encouraging public education, since bigotry so often feeds off ignorance; and inculcating habits of stoical and self-reliant articulateness, so that individuals develop a capacity to address cruel tormentors in an effective way. A feature of governmental hate-speech suppression that Strossen sees as profoundly bad is its tendency to weaken putative beneficiaries. “For our own well-being,” she writes, “we should develop relatively thick skins, so that our own sense of self-confidence is not threatened by hateful words.” 

Struggles will continue over the appropriateness of governmental censorship of speech that many deem to be hateful and dangerous. For a guide through the labyrinthine byways of this conflict one cannot do better than Strossen’s book. She illuminates this topic with hard-won knowledge and disciplined conviction.