Debating Hate Speech

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>Last week I engaged in an online Intelligence Squared debate about hate speech with Femi Otitoju, a British diversity consultant and unwavering advocate of hate speech legislation. I've participated in many similar debates over the years, but this was the first that left me feeling grateful to be an American. I've often used my speech rights to lament declining support for free speech in this country, especially on college and university campuses and especially among progressives; but if Otitoju's views are at all representative of popular or elite opinion in Britain, then, by comparison, America is practically a Millsian paradise (if you stay out of academia and off of government blacklists).   

Unlike so many American advocates of regulating hateful or offensive speech who nonsensically insist that they oppose censorship, but ... "free speech doesn't include hate speech" or "free speech doesn't include a right to offend" (as if we could prohibit unpopular speech and still enjoy a right to speak freely), Otitoju forthrightly disavowed a commitment to free speech, paying not even lip service to liberty. Her acknowledged opposition to speech rights was refreshingly candid, as well as a reflection of the cultural and legal environment in which she operates; if American advocates of censorship lived in Britain they might stop pretending to support free speech too.

Otitoju's candor was also informative, clearly revealing the values underlying campaigns to restrict speech in the putative interests of equality: I asserted that freedom of speech and belief includes the freedom to hate, and if we value liberty, we cannot demand a right to be protected from the emotional harm presumably inflicted by another's speech. Since Otitoju didn't pretend to value liberty (or value it much), she countered that we do indeed have such emotional rights and the state should affirmatively protect our emotional well-being and our self-esteem. When she talked about people who were harmed by hate speech, I remembered  people harmed by hate speech prohibitions.  (Visit thefire.org for examples.)

I regard free speech as a fundamental moral right, a normative as well as instrumental value. She treats speech rights as immoral when they involve expressions of hatred. She aims for a society in which people feel "safe" from exposure to the hateful feelings of others. I aim for one in which people can safely harbor and express their ideals and emotions, including their hatreds. She asserts that the law can regulate speech without regulating emotion or belief; I assert that emotions, beliefs, and speech are inextricably bound: I shape my ideas by articulating them; writing is how I formulate and clarify my thoughts. She regards hate speech as conduct; (censors often conflate speech and action). I insist that it's speech. In other words, if our debate had devolved into an exchange of epithets, if we'd hurled hateful names at each other, then according to her standards, we would each have been guilty of criminal conduct. I'd say we were guilty of embarrassing ourselves.  

She welcomes the intrusion of state power into personal relations when they involve what she considers hateful speech. I shudder at the thought of it. Her vision of a safe society inspires in me visions of a Maoist re-education camp.

I found this a difficult as well as instructive debate (that occasionally left me nearly speechless) precisely because we had virtually no common ground, no relevant, mutual vision of a good society. Since we didn't share some fundamental moral values or social and political goals, our debate was less an argument than an exchange of opposing beliefs.

We did, however, find at least one point of agreement--that developers of the Park 51 Center have a right to build near Ground Zero. I tried vainly to point out that opponents of Park 51 were employing the same arguments used by advocates of hate speech legislation, insisting that the families of people killed on 9/11 and New Yorkers in general have a right to be protected from the emotional harm that they assume Park 51 will inflict. Some people think burning the Koran should be illegal because it is so profoundly offensive; others insist that Muslims should be barred from worshipping or simply congregating near Ground Zero, because their mere presence is deemed equally offensive. Which side prevails in controversies like these when you devalue First Amendment freedoms and jettison content neutral protections of speech and belief? Whichever side holds power.

In part, these assertions of emotional rights are simple political power plays aimed at silencing opponents. (The Southern Poverty Law Center demonstrated the partisan uses of hate speech doctrine last week when it labeled the anti-gay Family Research Council a hate group.) In part, the subordination of one person's freedom of speech and belief to another's emotional well-being is an ideological stance: It reflects the morally immodest assumption that right thinking people can rightly discern and should be empowered to define the legal limits of acceptable discourse for everyone else.  

Femi Otitoju's side holds considerable power in Britain, where a paternalistic and intrusive state has criminalized presumptively hateful racist or anti-religious speech; (right thinking law enforcement agents and other bureaucrats are apparently trusted to know hate speech when they hear it and also to recognize a consistent difference between dislike of religion, which is allowed, and hatred which is prohibited). So, given her political advantage, I'm not surprised that Otitoju seems content to allow powerful people to define the speech rights of the less powerful; at least she seems untroubled that opponents of the Park 51 project employ her arguments to their advantage. The developers of Park 51 have a right to build, she repeats.  Good to know if she were Queen, that right would be not be threatened.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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