Speech We Hate or Hateful Speech?:

Why Classic Approaches to the Problem of Hate Speech Fall Short

When the Supreme Court reviews cases regarding hate speech and the First Amendment, the Court almost always rules in favor of the First Amendment (Head 2019). In the 2011 Supreme Court case Snyder v. Phelps, the Court decided in an 8–1 majority that the Westboro Baptist Church’s picketing of a gay soldier’s funeral was allowed under the First Amendment. Justice Samuel Alito provided a sole dissent, writing, “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred” (Alito 2011, 1). Justice Alito’s lone dissent provides a remarkable separation from traditional Supreme Court thought on the matter. Furthermore, it begins an argument about the lengths that we as a diverse democratic society should go to protect our right to free speech. While Alito’s dissent may be in reference to the particular matter presented in this instance, this line of reasoning should be wholly applied to these tough cases. In this essay I will argue against John Stuart Mill’s and other traditional defenses of free speech and critique existing solutions to show that an inclusive and diverse democracy must not allow unchecked free speech.

John Stuart Mill’s On Liberty provides a framework for much of the discussion of free speech. He goes as far in his essay to say that, “the peculiar evil of silencing the expression of an opinion is robbing the human race… still more than those who hold it” (Mill 1859, 5). Mill wants to say that the act of silencing other people’s freedom of speech is to shut off a whole society to the potential truths of that statement. Mill condemns attempts to police people’s speech, writing that “They have no authority to decide the question for all mankind, and exclude every other person from the means of judging,” (Mill 5) essentially saying that when a government or other entity attempts to confine speech, they don’t allow themselves to critically engage in rigorous debate to discern the truth. What Mill is getting at is known as the marketplace of ideas, a theory first presented in American history by Justice Oliver Wendell Holmes in Abrams v. United States (Abrams v. United States 1919, 53). The marketplace of ideas is a theory that says that when total free speech is allowed, the “best” ideas will rise to the top of mainstream thought, a theory that draws from Adam Smith’s theory that an open and free market will lead to the most optimal prices for both the consumer and supplier. The existence of free speech is what allows this search for truth to exist. Mill believes that it is only through debate and argumentation that a society can progress and improve.

Mill’s thesis of free speech recognition has been continuously upheld by various organizations throughout the United States. In 1978, the ACLU defended a neo-Nazi group that wanted to march through Skokie, Illinois, a town containing a significant number of Holocaust survivors (ACLU 1978). More recently, a Ph.D. student from Syracuse University published an article about the importance of defending “speech you hate” (Rulffes 2016). Nadine Strossen, a professor at New York Law School and former president of the ACLU, wrote a book about hate speech, arguing that the way to defeat hate speech is not through censorship but through more speech. Strossen’s argument was that in instances where people spew hate speech, such as a neo-Nazi rally or anti-black protests, counter-protestors would organize and would show the affected peoples that Americans don’t stand for hate (Strossen 2018). She wrote that the hate-filled dogma would be exposed and consequently criticized by the majority and a healthier discussion and understanding would arise as a result of the hate speech. Additionally, there is a sense in the United States that our freedom of speech is an integral part of our American-hood, it is, after all, the very first amendment. While there have been exceptions made to our freedom of speech (most notably that one cannot yell “fire!” in a crowded theater), hate speech has not been a category explicitly outlawed by the Supreme Court (Head 2019). Furthermore, many proponents of free speech argue that if you attempt to censor hate speech, you risk power swinging the other way where future governments can censor anti-racist activists, claiming that their speech is harmful.

Taken together, it is clear that Mill and other defenders of free speech have a threefold argument: that uncensored free speech leads to society discovering truths, that censoring free speech could have a pendulum effect if the power is given to wrong people, and that the most effective way to counter hate speech is through more speech. The following sections will critically examine these three arguments. Karl Popper’s paradox of tolerance, as laid out in his crowning work in political theory, The Open Society and Its Enemies, says that “Unlimited tolerance must lead to the disappearance of tolerance” (Popper 1962, 543). A society that is tolerant to intolerance will inevitably be run over by the intolerant. Allowing intolerant ideas to flourish invariably leads to those ideas gaining more ground within the society. And because intolerance is intolerant to tolerance, the tolerant society will always be overtaken by intolerance. Thus, Popper’s argument is that an inclusive democracy must not allow intolerance lest it itself succumbs to intolerance. Many have tried to critique Popper’s hypothesis, but the attempts always fall short. Michael Freeman used the example of Marxism-Leninism and Communism to say that “what seems falsehood today may seem true tomorrow; and, even if Communism be thought utterly and eternally false, we can learn from error as well as truth” (Freeman 1975, 10). Mill would agree with Freeman’s critique, since, as laid out earlier, Mill wants to use free speech as a way to help discern what is right and true. He says that no one person can be sure that their specific opinion is the right opinion and as such a state should not attempt to silence one person (Mill 5). Where these critiques fall short, however, is that they fundamentally misunderstand the problem of hate speech. Censoring hate speech is not about censoring opinions or attempts to find the truth, but rather it is about protecting the well being of the state’s citizens. Mill himself says that the only time that the government should intervene with a person’s personal liberty is “to prevent harm to others” (Mill 4). To discuss speech as only a means to an end is to neglect the lived realities of those marginalized peoples affected by hate speech itself. Furthermore, Popper’s paradox of tolerance is about intolerant speech, not merely “speech we hate.”

In this discussion of hate speech, the harms of hate speech are often neglected and aren’t talked about. But hate speech has real consequences. In a 1954 study, Gordon Allport found that verbal expressions of prejudice “can lead to avoidance, discrimination, physical attack, and extermination, although such progression is by no means inevitable” (Allport 1954, 3). We see hate speech used as justification for horrendous shootings. In 2018 and 2019, an online post left by the gunman of a mass shooting at a Pittsburgh synagogue explained that the gunman was fighting against “invaders,” and a similar manifesto left by an El Paso shooter who targeted Mexican immigrants in a shopping center also spoke of an “invasion” (Hern 2019). While not all hate speech leads to instances of mass shootings, the existence of hate speech leads to empathy being replaced by contempt towards outgroups, specifically those minorities to whom hate speech is targeted (Bilewicz 2020, 12). To say that hate speech is just “speech we hate” is to discredit these effects of hate speech on the general population. These examples show only the effects of hate speech on its perpetrators, and victims of hate crimes have been shown to have more psychological distress than victims of other violent crimes (Herek 1999, 945). An important note to make here is that Mill does not think that the state should interfere with someone hurting themselves, only when others are being harmed. This would seemingly make these previously cited articles irrelevant, since they mostly pertain to the harm caused to perpetrators of hate speech. But by espousing hate speech, a person is harming others, particularly by exposing them to this speech in the first place.

The second primary argument laid out by proponents of free speech is that censoring hate speech could lead to a slippery slope where the wrong people get into power and use that power to silence dissenting voices. While this fear may have some legs, it may be helpful to turn to a comparative case study in order to accurately answer the question. A note should be made here that I am not arguing within any legal parameters of the First Amendment, but rather through the moral thresholds of what would be most beneficial to an inclusive democracy. Changing free speech doctrine in the United States would take considerable effort, and so the comparative use of Germany is not meant to be a legal comparison, but rather a moral one. Germany has upheld a law that criminalizes those who engage in Holocaust denial and other forms of Holocaust revisionism (Haupt 2005, 325). The author of this comparative case study makes an important distinction between the Holocaust itself and other events. The Holocaust can be thought of as a singularity, a case so horrible and recent that to even try to compare it would be wrong. Nonetheless, Claudia Haupt still uses the Holocaust revisionist laws in Germany as a case study because it can still illuminate some features of censoring hate speech that are beneficial. On multiple occaisons, the German Constitutional Court has ruled against neo-Nazi and Holocaust revisionist groups. One such example of this is when the National Democratic Party (Nationaldemokratische Partei Deutschland, NPD) wanted to hold a demonstration whose featured speaker was a known neo-Nazi and Holocaust deniar. Local authorities prevented the NPD from holding this demonstration which was upheld by the German courts (Haupt 330). This example is compelling and illuminating because it is comparable to many neo-Nazi demonstrations in the United States, such as the previously mentioned demonstration in Skokie, Illinois. Germany has had these laws in place since 1958 and there has been no visible “backwards swing” (Haupt 321). Worries that the pendulum may “swing another way” may not be totally dissolved by citing Germany as an example, but can be eased nonetheless.

A third argument proposed by Nadine Strossen is that the answer to hate speech is more speech. To counter this example, one need only to look at history. “Where was the ‘more speech’ during the centuries of slavery in the South, or even the North?” asks political theorist John Downing (Downing 1999, 183). Time and time again we have seen injustices occur throughout history without a counter-movement arguing against them. Even looking at the recent Black Lives Matter movement calling out police brutality against people of color, we haven’t seen a widespread rebuke of law enforcement, especially among conservatives. We even have the President of the United States, Donald Trump, refusing to condemn white supremacist groups, even going so far as to tell the Proud Boys (a white nationalist organization) to “stand back and stand by” (Murphy 2020). The “more speech” argument is contingent on the actions of others to counteract the wrongdoings of members of societies. Affected minority groups should not be expected to counteract hate speech by staging counter-demonstrations and counter-protests because it places the burden on the wrong party.

Having critically examined the threefold argument of free speech proponents, I now wish to put forward my own argument for what should be done about the problem of hate speech in a democracy that wishes to support diversity. Free speech has long been a debated issue on college campuses which presents a useful case study on how to approach the issue in a wider context. Universities are often described as “places where knowledge is developed and disseminated” and have an obligation to provide an education to their students (Ben-Porath 2020, 2). Hate speech on campuses has also been shown to silence anti-racist and anti-hate speech (Leong 2020, 14). Both these authors show that hate speech is an obstacle to the university’s stated goal of education and the pursuit of knowledge. Both authors also try to provide their framework to rectify this problem of harm done to students who are a part of these minority groups. I wish to generalize this framework to the government as a whole. The goal of the American government has been and is contested amongst politicians and citizens alike, but one agreed upon goal is that the government has a duty and obligation to protect the well being of its citizens. This has traditionally taken the form of having a well-kept army to protect the country from invaders and has also evolved to include a police force, firefighters, the FBI, and a variety of other organizations who are meant to protect the citizenry. Most of these protections are meant to be physical protection, against sickness or physical violence, but there is no reason why they should not include emotional harm and violence as well. As described earlier in this essay, hate speech has a real impact on people, and the government should work to prevent it.

The problem with wanting to prevent this emotional violence is that it is a lot harder to perceive these nonphysical harms. And furthermore what would this even look like on a national scale? Charles Husband flips the problem on its head and wants to create a “proactive policy to ensure a multi-ethnic public sphere” (Husband 1996, 211). Rather than focusing on the right to communicate, Husband wants to focus on the right of the minority to be understood. He doesn’t want to strip away individual liberties, but wants to take a positive rights approach that focuses on the collective community rather than the individual (Husband 212). This idea is similar to one put forward by Sigal Ben-Porath whose proposed solution to campus hate speech was to encourage university leaders and organizations to elevate the voices of those who are silenced by hate speech (Ben-Porath 14). Ben-Porath and Husband both envision a system where politicians and other elites elevate minority voices and provide them a platform to voice their views and opinions to be understood by the general public.

However, these proposed solutions do not go far enough. Even Mill agrees that the government has an obligation to interfere when one citizen harms another. More speech will not rectify the harms done by the hateful speech in the first place. While elevating voices is important and is a step in the right direction, the only real step a diverse democracy must take is to disallow hate speech entirely. Again I wish to draw a distinction between hate speech and “speech we hate.” Hate speech refers to speech that actively harms another person, whereas “speech we hate” can refer merely to opinions that we don’t like. Hate speech presents a very real problem to democratic governments around the world, and the only solution that actually strikes the heart of the issue is to censor hate speech specifically. Intolerant hate speech does not lead to new ideas or help society reach some sort of truth. It only serves to take advantage of the tolerance given to it by a tolerant society to take hold and root itself within the system. An inclusive and diverse democracy cannot allow this to happen and must limit freedom of speech.

Works Cited

Abrams v. United States, 250 US 616 (1919).

ACLU. 1978. “ACLU History: Taking a Stand For Free Speech in Skokie.” ACLU.

Allport, Gordon W. 1979. The Nature of Prejudice. Massachusetts: Addison-Wesley.

Ben-Porath, Sigal. “Campus Free Speech in Polarised Times.” Law, Culture and the Humanities, (September 2020): 1–15.

Bilewicz, M. and Soral, W. (2020), Hate Speech Epidemic. The Dynamic Effects of Derogatory Language on Intergroup Relations and Political Radicalization. Political Psychology, 41: 3–33.

Downing, John D.H. “‘Hate speech’ and ‘First Amendment absolutism’ discourses in the US” Discourse and Society Volume 10, no. 2 (1999): 175–189.

Freeman, Michael. “Sociology and Utopia: Some Reflections on the Social Philosophy of Karl Popper.” The British Journal of Sociology 26, no. 1 (1975): 20–34.

Haupt, Claudia E. “Regulating Hate Speech — Damned If You Do and Damned If You Don’t: Lessons Learned from Comparing the German and U.S. Approaches,” Boston University International Law Journal 23, no. 2 (Fall 2005): 299–336.

Head, Tom. 2019. “Major U.S. Supreme Court Hate Speech Cases.” Thought Co. July 18, 2019.

Herek, G.M., Gillis, J.R., & Cogan, J.C. (1999). Psychological sequelae of hate-crime victimization among lesbian, gay, and bisexual adults. Journal of Consulting and Clinical Psychology, 67, 945–951.

Hern, Alex. 2019. “El Paso shooting: 21-year-old suspect ‘posted anti-immigrant manifesto.” The Guardian.

Husband, Charles “The right to be understood: Conceiving the multi‐ethnic public sphere, Innovation.” The European Journal of Social Science Research, Volume 9 no. 2 (1996): 205–215.

Leong, Nancy, and Kevin M. Whitfield. “The Marketplace of Racist Ideas.” Law, Culture and the Humanities, (October 2020): 1–25.

Mill, John Stuart. 1859. On Liberty. London: Parker and Son.

Murphy, Paul P. 2020. “Trump’s debate callout bolsters far-right Proud Boys” CNN. October 1, 2020.

Popper, Karl. 1962. The Open Society and Its Enemies. United Kingdom: Routledge.

Rulffes, Angela. 2016. “The importance of protecting speech you hate.” New House Syracuse University June 19, 2016.

Snyder v. Phelps, 562 US 443 (2011).

Strossen, Nadine. 2018. Hate: Why We Should Resist it With Free Speech, Not Censorship.” New York: Oxford University Press.