INTO THE MAELSTROM of controversy over the extent to which our nation and our Constitution should protect racist, sexist, homophobic, anti-Semitic, Islamophobic, and hateful speech expressed by white supremacists, neo-Nazis, and other bigots, come two new books offering sharply conflicting views.

They ask some of the most profound questions a constitutional democracy ever faces. Must we sacrifice the fundamental principle of free speech in order to ensure the fundamental principle of equality? Must we defend the rights of individuals and groups to spew their hatred, knowing that if they ever got into power they might well deny those very same rights to the people they despise? What would laws against “hate speech” look like and what impact have they had in countries that have tried them?

In HATE: Why We Should Resist It with Free Speech, Not Censorship, Nadine Strossen, a professor of constitutional law at New York Law School and president of the American Civil Liberties Union from 1991 through 2008, marshals a vast amount of legal, historical, social science, psychological, and transnational research in service of her premise that all ideas, no matter how hateful, deserve First Amendment protection. She sets out to “refute the argument that the United States, following the lead of many other nations, should adopt a broad concept of illegal ‘hate speech,’ and to demonstrate why such a course would not only violate fundamental precepts of our democracy but also do more harm than good.”

At the other end of the spectrum, in Must We Defend Nazis? Richard Delgado and Jean Stefancic, professors at the University of Alabama School of Law, challenge Strossen’s premise by arguing that “society should take more decisive measures to marginalize and discourage hate speech of all kinds than it has been doing” and that nothing in the Constitution “requires that hate speech receive protection.”

The two books feel like ships passing in the night. How eager I was to get the authors together to square off on their opposing views and determine if there was any common ground on which they could agree. In lieu of such a face-to-face, I have decided to convene an imaginary one between Professors Strossen and Delgado, with myself as moderator, using only their own words (or a fair paraphrase thereof), in the hope that direct points and counterpoints would sharpen the arguments of both sides and help readers navigate these difficult issues. Apologies in advance if I have misstated either author’s viewpoints; I have endeavored to state each proponent’s views fairly and in line with my understanding of their respective viewpoints.

 

An Imaginary Debate of Nadine Strossen and Richard Delgado

MODERATOR: It’s a pleasure to open this debate sponsored by the Los Angeles Review of Books. Professor Strossen, we have known each other for many years through our work together at the ACLU. Welcome. Professor Delgado, we’ve never met but I’ve read many of your thought-provoking works over the years. Welcome. Rest assured I will do my very best to offer a level playing field to both of you throughout this discussion. Professor Strossen, you begin your book by defining key terms in this debate. I think that’s a perfect place for us to start.

STROSSEN: Thanks. I do believe that once we strip away some of the verbiage and misunderstandings, there are very important areas on which Professor Delgado and I may agree, which I hope we will get to before we finish.

In my book, I strive to discuss important, complex legal concepts clearly and concisely, but without oversimplifying. This is challenging because the very term “hate speech” and other terms that recur are plagued by confusion. Part of the problem is that “hate speech” has no single legal definition and has been loosely used in our popular discourse to demonize a wide array of disfavored views. The definition I use in my book is:

[S]peech that expresses hateful or discriminatory views about certain groups that historically have been subject to discrimination (such as African Americans, Jews, women, and LGBT persons) or about certain personal characteristics that have been the basis of discrimination (such as race, religion, gender, and sexual orientation).

MODERATOR: Professor Delgado, your book doesn’t specifically define “hate speech.” Does Professor Strossen’s definition suffice?

DELGADO: I think my entire book defines hate speech. The exception I take to Professor Strossen’s definition is that it fails to acknowledge that hate speech itself constitutes “words that wound.” The words themselves can shock and wound, rendering its victims speechless, afraid, and silent, less able to participate in public conversation than they were before being made to suffer it. We believe that laws against hate speech are constitutionally and morally permissible. As we say in the book that I wrote with Professor Stefancic, “any sort of meaningful speech requires equal dignity, equal access, and equal respect on the part of all who participate in a dialogue. Free speech, in other words presupposes equality.”

MODERATOR: Is it your contention that because hate speech can “shock and wound,” as you say, it can be punished without violating the First Amendment?

DELGADO: Yes. In our book, we describe the real harm suffered by victims of hate speech. For example, the consequences of racism may include mental illness, psychosomatic disease, alcoholism, high blood pressure, drug addiction, depression, nightmares, inability to function or work, hypertension, and strokes. In addition to these harms associated with racism itself, specific harms result from racial insults and invective, including mental and emotional distress, the affront to one’s dignity, apathy, and low self-regard caused by disabling stereotypes.

STROSSEN: By speaking of “racism” and the harms it unquestionably causes, Professor Delgado is blurring the line between discriminatory conduct (which under various statutes may be punished) and offensive speech (which is constitutionally protected). I make very clear early in my book that discriminatory, not to mention violent, conduct must be swiftly punished. But when it comes to speech, we must further distinguish between discriminatory speech directed at individuals, on the one hand, and the expression of racist and hateful ideas that are part of the public discourse in a free society. As Professor Delgado himself points out, under existing law we already have laws on the books affording remedies to individuals for intentional infliction of emotional distress based on racial insults, as well as actions for battery and defamation.

MODERATOR: That brings me to a related issue. Throughout his book, Professor Delgado accuses you, as well as the ACLU and others who share your views, of being First Amendment “absolutists,” of engaging in “totalism,” that your “mechanical jurisprudence” has “paralyzed” your thinking and that you feel no obligation to address other societal values such as equality and inclusion.

STROSSEN: Those accusations are entirely misguided and groundless. I have refuted them in detail throughout my book and in the extensive companion notes that are available at www.nyls.edu/nadinestrossen. And on that score, I’d like to point out that Professor Delgado’s book contains no citations to support any of his specific claims, except a generic bibliography at the end citing a handful of court decisions and a few books and articles that aren’t tied into his text, so no one can tell whether there is any factual support for his various assertions.

So let me address head on this false notion that I and other defenders of the First Amendment are “absolutists,” “totalists,” et cetera, and that we ignore other important societal values. I gather this accusation is intended to suggest that defenders of the First Amendment believe that there are absolutely no circumstances whatsoever in which “hate speech” can be regulated by the government in order to serve other values. That is simply not true.

In my book, I define the term “constitutionally protected ‘hate speech’” to underscore a key fact that is not well understood. Under existing US Supreme Court law, some “hate speech” is constitutionally protected and some is not. Several sections in my book are devoted to explaining the limited categories of unprotected “hate speech.” They include true threats that communicate an intent to commit an act of unlawful violence against a particular individual or group of individuals; incitement where a speaker incites imminent violence or illegal conduct that is likely to occur immediately; fighting words where the speaker hurls insults at another individual intending to instigate an immediate violent reaction; harassment of individuals or small groups of individuals; “severe or pervasive” harassment intended to alter the conditions of employment or create a hostile or abusive working environment; speech facilitating a crime; and hate speech during a crime that enhances the punishment.

But outside of those exceptions, I side with the Supreme Court, which, as recently as 2017 in Matal v. Tam, invoked the words of Justice Oliver Wendell Holmes Jr., in unanimously holding that “[s]peech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

MODERATOR: Both of you seek to bolster your case for or against “hate speech” laws by pointing to what other countries have experienced. Professor Delgado, what can we learn from foreign countries that have actually enacted and enforced these laws?

DELGADO: Many other countries, including European democracies, have passed such laws, including laws that punish hate speech as a crime, especially to protect historically oppressed groups. And the sky doesn’t fall. As I state in our book, “[M]any of these countries have a political atmosphere that is freer and more vibrant than ours; citizens there merely cannot engage in vituperation against each other. So why are we so reluctant to follow suit?” I also state in our book that except in authoritarian countries like South Africa, “authorities generally do not apply anti-racism rules against minorities.”

STROSSEN: There is no other issue on which we disagree more fundamentally. The statements that Professor Delgado just quoted from his book are made without citing any sources, and his general list of books and articles cites only one article on the issue, published in 1992. One of the main reasons I wrote my book was to refute the groundless claim that “hate speech” laws in other countries are not used against minorities and that those countries are “freer and more vibrant than ours.” Based on years of research, my book discusses over 75 examples and commentaries regarding the actual enforcement of “hate speech” laws in foreign countries, many resulting in fines and imprisonment against minorities and others. This enforcement has led to societies that are far less free and open to robust discussions of important public issues and experience widespread hate crimes and acts of bigotry and discrimination. Time doesn’t allow me to discuss all these cases; I will highlight only the following few egregious examples.

Although the 1965 British “hate speech” law was passed to quell growing racism against minority groups, the first person convicted under that law was a black man who cursed a white police officer. Throughout the 1960s and 1970s, leaders of the Black Liberation Movement in Britain were regularly prosecuted under the law. More recently, two British street preachers who were reading from the Bible were convicted of insulting LGBT persons and Muslims in 2017. A Danish appellate court in 2016 affirmed the conviction of a man for a Facebook comment that “Islam wants to abuse democracy in order to get rid of democracy.” In 2015, France’s highest court upheld criminal convictions and a $14,500 fine for 12 Palestinian activists who wore T-shirts at supermarkets with the message “Long Live Palestine, boycott Israel” and handed out fliers that said, “Buying Israeli products means legitimizing crimes in Gaza.” Laure Pora, head of the Paris chapter of the LGBT rights organization ACT-UP, was fined €2,300 in 2013 for calling the president of an organization that defends “traditional family values” a “homophobe.” And in 2008, Brigitte Bardot, French film star and longtime animal rights activist, was convicted and fined €15,000 for writing a letter to a French official complaining about the Muslim ritual of slaughtering sheep and accusing Muslims of “destroying our country by imposing their ways.”

MODERATOR: Professor Delgado, do you dispute any of these examples?

DELGADO: For purposes of argument, I will accept Professor Strossen’s research. But I still believe that the use of hate speech laws against minorities is rare and these European countries are freer and more vibrant than ours.

STROSSEN: Professor Delgado may believe that but the evidence doesn’t support him. In 2015, the European Commission Against Racism and Intolerance (ECRI), an expert body that monitors the implementation of European “hate speech” laws, concluded that the laws are being enforced “to silence minorities and to suppress criticism, political opposition and religious beliefs.” Indeed, the European Centre for Press and Media Freedom in 2017, UNESCO’s report on “Countering Online Hate Speech in 2015,” and the committee to enforce the UN’s International Convention on the Elimination of All Forms of Racial Discrimination in 2013, have all gone on record, as described in detail in my book, stating that counterspeech is much more likely than censorship to prove effective in ultimately eradicating the potentially harmful effects of “hate speech.”

MODERATOR: Returning to the United States, we began with the hope that we might find some common ground when its comes to regulating “hate speech.” In her book, Professor Strossen invokes broad protection for free speech as articulated by Justice Louis Brandeis (who not incidentally was the first Jew on the Supreme Court) on the theory that when there is time to dispel false and fallacious speech through discussion, the remedy is “more speech, not enforced silence.”

DELGADO: I too think there are circumstances where hate speech is answerable by more speech. For example, in our book we cite the example offered by Henry Louis Gates in which he contrasts a lengthy, articulate statement challenging affirmative action as an explanation for a student’s failure (“LeVon, if you find yourself struggling in you classes here, you should realize it isn’t your fault. It’s simply that you’re the beneficiary of a disruptive policy of affirmative action that places underqualified, underprepared and often undertalented black students in demanding educational environments like this one.”) with a short, blunt message with the same conclusion (“Out of my face, jungle bunny”). The latter is a more serious example of hate speech because it is not open to argument or a “more speech” response. The longer version is answerable by more speech such as, “That’s wrong. Not all of us are on a downward slide. My friend Jamila made the dean’s list last semester.”

STROSSEN: I’m glad Professor Delgado brought up this example because it reveals several important points. First, on the positive side, Professor Delgado himself acknowledges that in some circumstances the “more speech” approach is appropriate. The problem is that he is willing to empower public colleges or universities (and apparently even city councils or state legislatures) to decide that speech that is “a more serious example of hate speech” deserves civil or criminal punishment.

This approach violates two fundamental First Amendment principles: viewpoint neutrality and the vagueness doctrine. According to Professor Delgado, speech which uses the highly offensive term “jungle bunny” can be punished, but speech which refers to “underqualified, underprepared and often undertalented black students” cannot. He offers no principled basis on which to tell the difference. As I explain at length in my book, the Supreme Court has repeatedly afforded First Amendment protection to speech that many of us would find “contemptuous,” “hurtful,” “insulting,” “shocking,” and “vulgar.” The term “jungle bunny” is certainly all of those things, but it expresses, albeit crudely, the same idea of racial inferiority as other more erudite terms to which Professor Delgado would grant First Amendment protection.

Professor Delgado’s approach also runs afoul of the “void for vagueness” doctrine, which the Supreme Court has consistently upheld in the area of free speech. “Hate speech” laws invariably turn on inherently subjective, elastic words and concepts that endow government authorities largely unfettered discretion to choose which speech to punish based on their own self-interest or personal judgments, often disfavoring unpopular ideas and creating a chilling effect that deters people from expressing ideas that are unorthodox.

DELGADO: I am well aware of these concerns. In my book, I note that Professor Strossen points out that “speech has served as a powerful instrument for social reform, something minorities, if they knew their own history, ought to know as well as anyone.” And I acknowledge the “slippery slope” argument because “if we allow racial invective to be bridled, will we not soon find ourselves tolerating restrictions on classroom speech or political satire in the school newspaper.”

But our point is that those concerns must be balanced against the values of equality and inclusiveness by imposing reasonable rules to protect the dignity and self-regard of vulnerable young people and others from impacted communities.

The differences between these two camps runs deep and is based on competing narratives. Free speech defenders depict the current struggle as just the latest in a centuries-long succession of battles, including early struggles against king and church, book burning, inquisitions, Salem witch trials, and Hollywood blacklists. Minority defenders have their own narrative in which the struggle over hate speech is a continuation of our nation’s centuries-long battle for equality and brotherhood, including the work of early abolitionists seeking to subvert the evil institutions of slavery and white supremacy and the Civil Rights movement seeking racial justice. Frankly, I believe these stories are more closely connected than might be thought, like lovers locked in an intimate relationship. 

MODERATOR: I think that’s the appropriate note on which to close. I encourage everyone to read both of our guests’ books and decide for themselves what lessons we can learn from our own history and from other countries which have decades of experience with these laws. The path we as a nation take on these fundamental constitutional issues will depend on the courage and judgment of a well-informed citizenry.

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Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.